In Re : M. Krishnaswami and another

Somasundaram, J.—M.O.1, a commercial advertisement with a picture showing a man and a woman, very close to each other, depicting

the outlines of the breast and buttocks was published on the 3rd of May 1970 in the Sunday Standard, a weekly at Madras, of which Petitioner 1

is the printer and publisher. This advertisement, which was on behalf of Messrs. Cosmetic Monarch Products of Bombay, was given by Petitioner

No. 2 who is the Manager of an Advertising concern in that place. The State filed a Charge Sheet against these two Petitioners and the Editor, the

second accused (since acquitted) for an offence u/s 292A(a) of the I.P.C. P.W. 1, a retired Assistant from the Central Public Works Department,

deposed that the picture, M.O. 1 was obscene and added that he snatched it from the hands of his son when he was looking at it. P.W.2 also gave

a similar evidence. The learned Magistrate acquitted the second accused, the Editor, but convicted these two Petitioners with a finding that the

picture in question is grossly indecent within the ambit of Section 292-A(a) of the I.P.C. and sentenced them each to pay a fine of Rs. 200/-. The

correctness of this conviction is now canvassed in this revision.

u/s 292(A)(a), whoever prints or causes to be printed in any newspaper, periodical or circular, or exhibits or causes to be exhibited, to public

view or distributes or causes to be distributed or in any manner puts into circulation any picture or any printed or written document which is grossly

indecent, or is scurrilous or intended for blackmail, etc., shall be punished with imprisonment of either description for a term which may extend to

two years, or with fine, or with both. Explanation II of this section is as below: ""In deciding whether any person has committed an offence under

this Section, the ""Court shall have regard, Inter alia to the following considerations:

(a) the general character of the person charged and where relevant, the nature of his business;

(b) the general character and dominant effect of the matter alleged to be grossly indecent or scurrilous or intended for blackmail;

(c) any evidence offered or called by or on behalf of the accused person as to his intention in committing any of the acts specified in this Section.

The words ""grossly indecent"" are not defined in the Code. The dictionary of Charles Annandale defines ""gross'''' as ""coarse, indelicate, obscene or

sensual, shameful or flagrant"". The word ""indecent"" is defined in the same dictionary as ""offending against decency, unfit to be seen or heard,

offensive to modesty and delicacy and unseemly"". Chambers Twentieth Century Dictionary defines the word ""gross"" as ""coarse, flagrant, shameful,

sensual or obscene"".

The test of obscenity, as laid down by Cockburn, C.J. in Queen v. Hicklin (1868) L.R. 3 : Q.B. 360, 371 is as below:

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 that sort may fall.

Such publications should have the effect of depraving or corrupting those whose minds are open to such immoral influences and their primary and

palpable result would be to excite to Just. In other words, it should have the effect of producing a pernicious effect in depraving and debauching

the minds of the persons into whose bands it might come. While judging the character of obscene publications or the picture, the Court must

consider the effect that it would produce on the mind of an average person in whose hands it is likely to fall. While so judging, neither a man of

wide culture or superb character nor a person of a depraved mentality only should be taken as a reader of such publication. The standard of

readers is neither one with exceptional susceptibilities nor one without any susceptibility whatsoever.

As pointed out by the Supreme Court in Chandrakant v. State of Maharashtra AIR (1970) S.C. 1396 : 1970 L.W. Cri. 101 (S.C.) the concept

of obscenity would differ from country to country depending on the standard or morals of contemporary society. The standard 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. In the field of art and cinema also the adolescent is shown situations which even a quarter

of century ago would be considered derogatory to public morality, but having regard to changed conditions they are more taken for granted

without in any way tending to debase or debauch the mind. What the Court has to see is whether a class, not an isolated case, into whose hands,

the book, article or story falls, suffer in their moral outlook become depraved by reading it or might have impure and lecherous thoughts are used in

their minds. The question does not altogether depend on oral evidence, because it is the duty of the Court to ascertain whether it offends the

provisions of the Section 292, of the I.P.C. 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 such persons who

come into contract with the picture or publication.

Again, as observed by Their Lordships of the Supreme Court in Ranjt D. Udeshi v. The State Bombay 1963 LR 67-507 obscenity without a

preponderating social purpose or profit cannot have the constitutional protection of free speech and expression and obscenity is treating sex in a

manner appealing to the carnal side of human nature, or having the tendency. Such a treating with sex is offensive to modesty and decency but the

extent of such appeal in a particular book, etc., are matters for consideration in such individual case. The potentiality of the impugned picture to

deprave and corrupt by immoral influences should be considered and it will always remain a question of fact to be decided in each case. In other

words, an overall view of the obscene matter in the setting should be made. 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. Treating with

sex in a manner offensive to public decency and morality, judged by the national standards and considered likely to ponder to lascivious, prurient

or sexually precocious minds, must determine the result.

Thus, the Courts have laid down that the word obscene should be given its ordinary literal meaning, viz., repulsive, filthy, loathsome, indecent

and lewd. But, every indecent or filthy article will not come within the scope of obscenity punishable u/s 292 of the Indian Penal Code, because the

object of the article must have the tendency to corrupt the morals of those into whose hands it may fall.

A publication cannot be said to be obscene merely because it deals frankly with sex matters provided that the language used is not such as to

excite sensual feelings or give rise to thoughts of lust--State v. Girdarilal Popatlal Bombay 57 LR 952.

As observed in Sree Ram Saksena v. Emperor ILR (1940) Cal 581 a picture of a woman in the nude is not per se obscene. When there is

nothing in it to offend an ordinary decent person, it is impossible to say that it is obscene within the meaning of Section 292 of the I.P.C. For the

purpose of deciding whether the picture is obscene or not, one has to consider to a great extent the surrounding circumstances, the pose, the

posture, the suggestive element in the picture, the person in whose hands it is likely to fall, etc. No hard and fast rule can, therefore, be laid down

for the determination of the matter.

These are the tests laid down in reported decisions for determining the question as to whether a particular publication or picture is grossly

obscene within the ambit of Section 292 of the I.P.C.

We have to scrutinise the picture, M.O. 1, in the above background and in the context of the present concept of morals and the approach by

the public to sex. M.O. 1 is the picture. This picture shows the profile of a man and a woman just against a waterfront. The caption given for this

picture is ""Man, you are Monarch; and at the bottom of the picture, we have the figures of the products manufactured by the Monarch concern.

The picture of the man is on the left, while that of the woman is on the right. The learned Magistrate observes that in this picture both the man and

the woman appear to be naked and the right thigh of the man is brushing against the right thigh of the woman and the left hand of the man merges at

the hip of the woman. He further states that slightly above this point, the breast of the woman is shown as very visible in a pointed manner.

We have to remember that the picture in question is a commercial advertisement concerning certain cosmetics manufactured by a particular

concern. The publication is in a popular weekly and there is no evidence to show that this Weekly ever indulged or, is indulging in publishing such

publications for depraving or debauching the morals of the public. The dominant intention behind the publication is only an advertisement of the

cosmetics prepared by the Monarch Cosmetics of Bombay. This picture is not intended to blackmail anyone. What we see in the picture is a

profile of a man and woman just against the waterfront. The man is on the left and the woman on the right. The right thigh of the former slightly

brushes against the right thigh of the latter. The learned Magistrate observes that the picture appears to be naked. Closer scrutiny shows that they

are not. It looks as though they are in swimming dress with skirts. We cannot say that standing in such a pose would suggest that they were

preparing to commit sexual intercourse. The private parts of either of them are not shown or visible. The breast alone is shown as pointed.

Considering the circumstances, the pose, and posture, it cannot be said with any amount of certainty that this picture contained any suggestive

element of kindling sex or the feelings of sex in ordinary persons nor could it be said that the avowed object of the publication of this picture was

only to convey immoral ideas to the readers with immature minds.

P.Ws. 1 and 2 are the persons who have been put into the box for saying that this picture comes within the purview of Section 292A(a) of the

Indian Penal Code. The learned Magistrate is not prepared to accept their evidence as representative of public conscience. He observes as below:

We have come quite far away from the days of Victorian primness and prudery. We are living in the later half of the 20th century and in an age of

permissiveness. The social taboos of the last decade regarding matters connected with sex and with intimate subjects have gradually slackened,

Still our country and our cultural heritage would not accept certain things about sex which the west might wink over.

While judging the character of an obscene picture, or publication, the Court must consider the effect that it produces in the mind of an average

person into whose hands it is likely to fall. Obscenity, if at all there is anything in this picture, is trivial. It can relate only to the pointed breast and it

is so trivial and insignificant, that it cannot be said that this will have the effect of pondering to lascivious, prurient or sexual precocious minds.

Judging the matter in the above background, it cannot be said with any amount of certainty that this picture, M.O.1, is grossly indecent. The

conviction and sentences imposed on the Petitioners are set aside and they are acquitted. The fine, if collected shall be re-funded to them. The

revision is allowed.