Judgment:
P.K. Bahri, J.
(1) This petition has been broth under Section 482 of the Code of Criminal Procedure (for short 'Cr. P.C.') seeking quashment of proceedings pending in the court of Shri R. K. Yadav, Metropolitan Magistrate, in a complaint G filed by respondent No. 1-Shri Yashpal Bhasin, Advocate, against the petitioner and others under Sections 292 and 293 of the Indian Penal Code (for short Indian Penal Code ').
(2) At the outset I may mention that in spite of the complainant being served in this petition a number of times, the complainant never came- forward to oppose the petition. In order to seek assistance in thrashing out the legal question involved in this petition, I requested Mr. Maninder Singh, Advocate, to act as amices Curiae on behalf of the complainant and he very kindly agreed and I must express my gratitude to him for advancing elaborate arguments in the matter.
(3) It has been averred in the complaint that the complainant had purchased a book titled The Indian Call Girls' from Bhatia Novels & Stationers, 3-New Market, West Patel Nagar, New Delhi and on reading, the said book he found that the book contained matters offensive to' chastity, decency and the book tends (J to deprave and corrupt the minds of the persons who are likely to read this book. No particulars were mentioned in the complaint as to what portions of the book were obscene. Even in his statement the complainant did not mention any such particular except generally deposing that the book contains filthy and foul language and reading the book provokes lustful feelings in the mind of the reader and thus, the same is obscene. So, a crucial question which arose for decision before the Magistrate before directing issuance of summons to the accused was whether the said book contained obscene matter.
(4) The learned Magistrate after going through the book pointed out in his impugned order that certain passages appearing at pages 34, 39 & 40 of the book are obscene. Before deal with the book itself it is necessary to understand as to what could be treated as 'obscene'. Webster's Third New International Dictionary at page 1557 defines 'obscene' as what is repulsive by reason of malignance, hypocrisy, cynicism, irresponsibility, gross disregard of moral or ethical principles. The word obscene' as understood in context of penal provisions has come up for consideration before the Supreme Court a number of times. In Ranjit D. Vdeshi v. The State of Maharashtra, : 1965CriLJ8 , it was laid down that in a prosecution under Section 292 Indian Penal Code the question whether the book is obscene oi not does not altogether depend on oral evidence of a writer and art critic because the offending novel and the portions which are the subject of the charge must be judged of by the court. It was held that the word 'obscene' means what is offensive to modesty or decency which gives rise to emotions of lewdness, filthiness and repulsiveness. It was also held that there is some difference between the- obscenity and pornography as the latter denotes writings, pictures etc. only intended to arouse sexual desire while the former may include writing etc. not intended to do so but which have that tendency and both, of course, offend against public decency and morals but pornography is obscenity in a more aggravated form. In prosecution under Section 292 Ipc, the prosecution is not to prove that a person who sells or keeps for sale any obscene object knows that it is obscene, before he can be adjudged guilty. It was also held in this very judgment that the Penal Code does not define the word 'obscene' and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by courts, and the test must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and- that which is not. It was observed that merely treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something mere. It was further held that the test of obscenity, as applied in India, 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 this sort may fall. Ii it is quite certain that the book would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character, the book would be treated as obscene. It was also emphasized that an overall view of the obscene matter in the setting of the whole work would, of course, be necessary but the obscene matter also 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 fall. Then it was opined that in this connection the interests of our contemporary society and particularly the influence of the book on it must not be overlooked. It was held that 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. Then, it was observed as follows :
'IN other words, treating with sex in a manner offensive to public decency and morality, judged of by our National standards and considered likely to pander to lascivious, prurient or sexually precocious minds, must determine the result.'
in the cited case, the court was considering the well-known notorious book 'Lady Chatterley's Lover'. The said book bristled with detailed and specific description of sexual intercourse being indulged by the two main characters figuring in that work of fiction almost on every page and the book was held to be obscene. It was found that in treating with sex the impugned portions viewed separately and also in the setting of the whole book passed the permissible limits judged of from our community standards and as 'there was no social gain to us which could be said to preponderate, the book must be held to satisfy thi; test of obscenity indicated above.
(5) In Chandrakant Kalyandas Kakodkar v. The State of Mahai-ashtra & others, : 1970CriLJ1273 , it was again emphasized that whether 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 Section 292. It was observed that the question of obscenity Q may have to be judged in the light of the claim that the work has a predominant literary merit. The principles which were laid down in the case of Ranjit (supra) were reiterated and it was held that it is, thereforee, 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 and corrupt those whose minds are open to such influences and in whose hands the book is likely to fall and in doing so one must not overlook the influence of the book on the social morality of our contemporary society. It was also held in this case that if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. It was held that 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 are more taken for granted without in any way tending to debase- or debauch the mind. It was held that what we have to see is that whether a class, not an isolated case, into whose hands the book or article or story , falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. In the cited case, a fiction in novel was being analysed whether certain portion appearing in that book dealing with sex could be treated as obscene. It is true that in the said book no descriptions of actual sexual intercourse taking place between the characters have been given. The last judgment brought to my notice on the subject is Samaresh Bose & another v. Amal Mitra & another, : 1986CriLJ24 . la this -judgment it was held that in judging the question of obscenity the Judge in the first place should try to place himself in the position of the author and from the view point of the author the Judge should try to understand what is it that the author seeks to convey and what the author conveys has 'any literary and .artistic value and thereafter the Judge should place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the readers it was also held in this very judgment that a novel written by a well known writer of novels and stories, by which the author intends to expose various evils and ills pervading the society and to pose with particular emphasis the problems which ail and afflict the society in various spheres, cannot be said to be obscene merely because slang and unconventional words have been used in the book in which there have been emphasis on sex and description of female bodies and there are the narrations of feclngs, thoughts and actions in vulgar language. It was also observed that some portions of the books may 'appear to be vulgar and readers of cultured and refined taste may feel shocked and disgusted and equally in some portions the words used and description given may not appear to be in proper taste and 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 suggestions which is depraving or lascivious.
(6) So, in the light of the aforesaid guidelines and the ratio laid down by the Supreme Court, this court has to perform the job of deciding whether this particular book is obscene or not. In the brief note given by the publisher in the beginning of the book, it has been mentioned that the 'author, Dr. Promilla Kapur, is a leading social scientist, having a large number of books, centring mainly on women, to her credit and she has worked as Research Officer at the India' International Centre; Post-Doctoral Research Associate in the Department of Humanities and Social Sciences at the IIT; Deputy Director, Indian Council of Social Science Research, New Delhi, and is presently carrying out research on army officers and army wives and the has recently completed a study on Adolescent Girls. It has been also mentioned that this is the first book which explodes on a vast scale the histories, experiences and life patterns of Indian call girls. It was observed that focus here is on the 'aristocratic', independently functioning prostitutes, and a number of these from various social segments have been interviewed and investigated which not only make interesting reading, but also expose some extraordinary and hitherto unknown facts. In the preface the author who is mentioned as PH.D., D.Litt., Sociologist, has given reasons for making a thorough research of the girls indulging in this call girls business and the enormous labour which has been put in contacting the call girls and the contact-men and getting their statements and the present study was don,' as a sincere attempt to carefully and systematically gather and evaluate a body of scientific facts about the life and inner world of call girls as also the reasons which made them choose the kind of life in which there is a sale of sex. It was mentioned that this study is based on investigation of about 150 call girls.
(7) The learned counsel for the petitioner has pointed out that the present book is a work of art inasmuch as a sociologist duly qualified had done research on the subject which has been almost a taboo in our society with a laudable object of bringing it to the notice of the general public the immoralities from which the society is suffering which leads to young girls falling in this very old profession of prostitution. The word 'sociology', according to Webster's Third New International Dictionary at page 2063, is defined a? follows :
'THE science of society, social institutions, 'and social relationships; specifically, the systematic study of the development, structure, and functions of human groups conceived as processes of interactions, or as organized patterns of collective behavior; the scientific analysis of a social institution as a functioning whole and as it relates to the rest of society. . . .; an analysis or exposition of the socially significant traits of a specific group, class or social milieu. . ..'
Keeping these facts in view and most particularly the fact that the author of the present book is an experienced sociologist, the Court has to see whether this book can be treated as obscene or not I may also mention that this book is an abridged and condensed version of the original work titled as 'The Life and World of Call Girls in India'. It is true that the prostitution has been always looked upon with hatred throughout the ages by the society, and particularly 'sex' has been considered an ugly word and any talk about sex in our conservative society was considered a taboo not many years ago but with this country progressing materially and with the spread of education, and coming of western culture, the society has become more open. It is indeed obvious that the phenomenon of the call girls has peaked in our country amongst the affluent .section of the society. The society is changing vastly with spiritual thinking taking a back seat and there is nothing wrong if sociologist makes a search on the subject of call girls in order to know the reasons as to why and how the young girls fall in this profession of call girls and 395 what society could do in order to eradicate or at least minimise the possibility of young budding girls joining this flesh trade. Of course, the present book is based on interviews taken of call- girls and those call-girls have given the facts as to how they cams to join this profession and while giving those facts of their lives they have mentioned about being sexually abused by unscrupulous males. Obviously every girl has a different experience and thus, the author went on to describe those sexual experiences of the call-girls which ultimately led them to join this ignominious profession. The portions appearing on the pages referred to by the learned Magistrate do border on obscenity because the way they first experience the sexual intercourse had been described in some detail. Some girls have mentioned about heir feeling disgusted in being forced to have those sexual experiences at the hands of the males, some girls had mentioned about their enjoying such sexual experiences and thereafter they have given the details as to how they came to be used for this business of call girls. But these portions in the book appear only at some places whereas most of the book deals with the ways and methods adopted in running the said profession of call girls.
(8) The learned author has then analysed these facts and given different and various suggestions for eradicating this evil from the society. As a whole the book appears to be a serious study done on the subject of call girls. Mere fact that some sort of vulgar language has been used in some portions of the book in describing the sexual intercourse would not, in my opinion, ill the overall setting of the book, be deemed to be obscene. If some portions of the book are taken in isolation, those portions may have the effect of giving lustful thoughts to some young adolescent minds but for that reason alone it would not be in the interests of justice to declare this book as obscene. There is an exception carved out in Section 292 Indian Penal Code which reads as follows :
'EXCEPTION.-THISsection does not extend to- (a) any book, pamphlet, paper, writing, drawing, paint- ing, representation or figure-- (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or
(9) So, the present book obviously has been written by the author, who is a sociologist, with an object of general good inasmuch she had carried out a research in the lives of the call girls and the men helping in the profession of call girls in order to serve the social purpose of eradicating or minimising the evil of call girls pervading our society. So, this book falls under the said exception.
(10) In view of the above discussion, I hold that the Magistrate was not right in issuing summons to the petitioner and the other accused for any offence punishable under Section 292 I PC.
(11) I allow the petition and quash the impugned order and also the complaint.