Sukanta Haldar vs The State

N.K. Sen, J.—The two Petitioners were convicted u/s 292 of the Indian Penal Code by a Presidency Magistrate, Calcutta, and each of them was sentenced to pay a fine of Rs. 100 in default to simple imprisonment for three weeks.. The book "Galpa Sankalan" was also directed to be proscribed and withdrawn from circulation. The present Rule is directed against this order of conviction and sentence and the forfeiture of the books.

The book "Galpa Sankalan" which is the subject matter of the present prosecution is a collection of stories from a periodical "Nara Nari". The Petitioner No. 1. Sukanta Kumar Haldar is the editor of this periodical "Nara Nari" which is published from the Nara Nari Publishing concern at No. 26/1, Sashi Bhusan Dey Street. The Petitioner No. 2 Kali Sankar Bagchi is the declared printer of the Indian Directory Press at 38A Masjidbari Street. The prosecution case is that the book "Galpa Sankalan" was edited and published by the Petitioner Sukanta Kumar Haldar and printed from the Indian Directory Press at 38A Masjidbari Street by the Petitioner Kali Sankar Bagchi, who was the declared printer. The book itself is ext. II Sub-Inspector S.R. Das Gupta of the Detective Department of the Calcutta Police, searched the office of Nara Nari Publishing concern and seized several issues of "Nara Nari" and a rent receipt showing the tenancy in respect of the office room of "Nara Nari" Publishing concern to be in the name of Sukanta Kumar Haldar. That the volumes of "Nara Nari" were seized in the manner indicated above does not seem to be in dispute at all. The defence of the Petitioners appears to be that the book in question is not an obscene publication and as such, is not indictable. This is a general defence raised against the prosecution with respect to the book and the particular objection that is taken with respect to the trial is that the prosecution having founded the charge in respect of the entire book without specifying the particular passages which were supposed to be obscene, the whole charge is vague and indefinite. On behalf of the Petitioner No. 2 it was also suggested that the evidence in the case does not conclusively prove that he was the printer of the impugned book.

It is stated that the stories appeared in the magazine "Nara Nari" in the year 1.940. They were not considered objectionable then. Mr. Dutt, therefore, argues that the compilation of the same stories in a book form will not make them any more objection able than what they were in 1940. Mr. Haridev Chatterjee, a very Senior and experinced advocate, appearing on behalf of the State has drawn my attention to the caseKirodh Chandra, Hoy Cliowdhury v. Emperor (1911) ILR 39 Cal. 377 where in connection with certain objectionable passages appearing in a religious book or a classical work, it was held that if objectionable passages in a religious book are extracted and printed separately, the tendency of such publication would be to deprave and corrupt those whose minds are open to immoral influences. I accept the argument. A stray passage or a stray story occasionally thrown into a magazine might escape the attention of persons who read them, but to collect such stories together and publish them in book form is certainly bound to excite a particular feeling in the minds of the readers. Think of certain passages being abstracted from the Mahabharata and the works of Shakespear and published together in book form for the consumption of impressionable youths. I cannot think that the compiler could have had any other object in his mind than the one which is made punishable under the law.

With regard to the charge framed in the case, Mr. Dutt has relied upon the ease of the Queen v. Upendra Nath Doss and Anr. (1876) ILR 1 Cal. 356. That case was decided in March, 1876. This was cited in support of the contention that the particular objectionable passages and not the whole book should be included in the charge. The facts of the case are entirely different. In that case the Defendants were charged with having on March 1, at Beadon Street, Calcutta, exhibited to public view certain obscene publication and further having uttered or recited certain obscene words. In such a case, I agree with all respects to the learned Judges that the actual representations and the actual words uttered must be set out in the charge. Here the case is entirely different. I dp not, therefore, think that the case cited is of any use to the Petitioners.

In a case where a publication is alleged to be obscene it is not necessary to specify any particular passage or passages, taking the same out of the context. If a charge was framed on such isolated passages, the accused in the case would at once take objection, and very legitimately, that the entire book or article from which these particular passages had been abstracted, should be considered as a whole. A passage out of the context may have one meaning while in relation to the context, it may not have the same meaning. In this particular case, if one or two paragraphs are taken out of their context, the degree of their obscenity would have been much greater than when they are read in relation to the context. The question ultimately, therefore, is whether this alleged vagueness had caused any prejudice to the Petitioners. In my judgment, no such prejudice was caused.

The main question for consideration is whether the whole book is to be considered obscene and/or any part or passage thereof placed in their proper context is to be* considered obscene. The learned Magistrate having gone through the book did not seem to have been displeased with the book in general as, according to him, the stories contained therein were good pieces of literature dealing with men and women in relation to sex in particular. These stories appeared to the learned Magistrate to have interpreted life in its inscrutable ways of growth and development. In spite of their breadth of vision and liberal outlook, the learned Magistrate found some narratives contained in some passages of the book to be obscene as they were found to excite sexual urge and voluptuous thoughts in the minds of adolescents whose minds were highly. impressionable. He has particularly referred to the stories entitled "Confession" and "Muhurta".

In deciding the case I have had the valuable assistance of Mr. Chatterjee. I asked him to scan and analyse the various stories and to satisfy me that they were obscene. He argues that having read the book himself, he was convinced that the feelings that would be created in the minds of the readers would be just of the same kind to persons of all ages, though they might differ in the degree of their intensity. I have myself gone through the book, and the two stories in particular, and there is no doubt that the book is bound to excite voluptuous thoughts in the minds of teenagers. At the same time one cannot afford to be oblivious to the present growth of the activities in the social and economic lives of men "and women. Mr. Dutt has referred to the well known case of The Queen v. Hicklin (1868) L.R. 3 Q.B. 360 371 and has argued that since 1868 we have covered about 90 years. What was considered bad then might not be so today. In support of the argument he has referred to Rex v. Martin Seeker Warbug Ltd. and Ors. [19S4] All E.R. 683, where it was pointed out that a book is not obsence merely because it is in bad taste or it is an undesirable book. It was further held that in deciding whether a publication absorbed with sex relationship of men and women and purporting to describe the contemporary life, is an obscene libel, it is necessary to take into account the change brought out in the society since The Queen v. Hicklin was decided. With great respect, the dictum laid down there is, I agree, the correct test. It is quite true that our ideals are now undergoing considerable changes and are still in a process of evolution. Upon these considerations, I am prepared to concede this that many years ago some of the stories which would have been considered obscene cannot now be considered so.

Even taking a very generous view of the feelings sought to be expressed through this compilation of stories called "Galpa" Sankalan" how could it be said that the passage where Adrish Roy has narrated his first experience and circumstances of sexual contact with Balu, his niece, to be something which should not be called obscene? The story itself is not only loathsome but is calculated to deprave and corrupt those whose minds are open to immoral influences and into whose hands a publication of this sort may fall. It may. be quite true that to a person past his seventies there would be no sexual urge on reading the passages of this book, but that will not be the correct test to determine the question of obscenity which has been accepted to be one that is detrimental to public morals and calculated to produce a pernicious effect in depraving and debenching the minds of persons into whose hands it may come. In fact, the story in question would certainly suggest to the minds of the young of either, sex or even to persons of more advanced years thoughts of most impure and libidinous character though the ulterior object of the writer might have been innocent or even laudable. The. same remark may be applicable to the story "Muhurta". A mere reading of the passages will convince a casual reader that the sentiments contained in all the stories were directed to excite erotic feelings and in general, some of the stories contained passages which outstep the limits permissible by law and are, in my judgment, definitely obscene within the meaning of Section 292, Indian Penal Code.

The other point is that the Petitioner No. 2 was not proved to be the printer of the impugned book. Catting the case of Mumtaz Ali v. Emperor (1905) 2 Cri. L.J. 717 of the Chief Court of the Punjab Mr. Dutt argues that the mere fact that the Petitioner No. 2 was the printer, does not render him criminally liable. It may be observed here that in the very first paragraph of the petition made to the court, it is stated that the Petitioner No. 2 is the declared printer of the Indian, Directory Press at 38A Masjidbari Street, Calcutta. This statement is true to the knowledge of the person who swore to the affidavit attached to the petition. Apart from the statement made in the petition, it appears from the book itself and exts. 4/1 and 4/2, that the Petitioner No. 2 Kali Sankar Bagchi is the printer of the book. That the Petitioner No. 1 Sukunta Kumar Haldar was the editor and publisher is not in dispute. Mr. Dutt has referred me to the evidence of Jatirmoy Chatterjee, prosecution witness No. 3 who was the Manager of the Indian Directory Press of P.M. Bagchi of 38A Masjidbari Street, Calcutta. His evidence was that 3/4 forms of this book were printed from his press but the entire book was not printed from that Press. He could not say, definitely which 3/4 froms of the book were printed from that press. On this, Mr. Dutt argues that there is no evidence to show that the Petitioner No. 2 was the printer of the book and he could not be held to be criminally liable. As I have pointed out above that there are enough materials to show that the Petitioner No. 2 was the printer of the publication concerned. In my view, there is, therefore, no substance in the point taken by Mr. Dutt.

Another point raised and mentioned in ground No. VII is that the trial has been vitiated by non-compliance with Section 242 of the Code of Criminal Procedure. When a point like this is alleged which goes to the very root of the trial, the court is to satisfy itself as to whether or not there was any compliance with a mandatory provision of the Code. On going through the order-sheet and the records it is found that on January 19, 1957, the Petitioners were examined u/s 242 of the Code of Criminal Procedure and the particulars of offence u/s 292, I.P.C., were explained to them and they pleaded" not guilty to the charge. Apparently, therefore, the statement made in Para. 3 of the sworn petition which was stated to be a fact within the knowledge of the deponent was also not an accurate statement. The mere fact that summary form used by the Magistrate does not show that the accused was examined u/s 242 of the Code of Criminal Procedure does not justify an inference that the accused was not so examined. There is no substance in this ground.

Mr. Dutt points out that there is no evidence that the book is in circulation. He further complains that the order proscribing the book is bad in law. The fact that the book is not in circulation, does not help Mr. Dutt in any way because if this is so, the order withdrawing it from circulation will not hurt him in any manner. The other point regarding proscription is, in my opinion, covered by Section 517 of the Code of Criminal Procedure which provides for the disposal by destruction or confiscation of any property regarding which any offence appears to have been committed or which has been used for the commission of an offence. The court passing an order has an absolute discretion to decide the manner in which the off ending property is to be disposed of.

I am, therefore, of the view that taking a most liberal view of the passages in the book in their proper context, they are obscene within the meaning of the Indian Penal Code and the Petitioners have been rightly convicted. The learned Magistrate has passed a very lenient sentence on the Petitioners which perhaps they do not deserve. The conviction and sentences passed upon the Petitioners are, therefore, confirmed and also the order directing that the book be proscribed and withdrawn from circulation.