Judgment

P. JAGANMOHAN REDDY, J.:- This appeal is by special leave directed against the judgment of the Bombay High Court.

2. The Appellant is the author of a short story entitled Shama published in the 1962, Diwali Issue of Rambha, a monthly Marathi Magazine, which story is said to be obscene. Criminal proceedings were, therefore, initiated before the first class Magistrate, Poona by the complainant Bhide under Section 292, Indian Penal Code against the Printer and Publisher accused 1, the writer of the story accused 2 and the selling agent accused 3. The complainant stated that he had read the aforesaid Diwali issue of Rambha and found many articles and pictures in it to be obscene which are calculated to corrupt and deprave the minds of the readers in general and the young readers in particular. The complainant further referred to several other articles in the same issue such as the story of Savitri and certain cartoons but we are not now concerned with these because both the Magistrate as well the High Court did not think that they offended the provisions of Section 292, Indian Penal Code. The Magistrate after an exhaustive consideration did not find the accused guilty of the offence with which they were charged and, therefore, acquitted them. The complainant and the State filed appeals against this judgment of acquittal. Before the High Court it was conceded that there was no evidence that accused No. 3 had sold any copies of the issues of Rambha and accordingly the order of acquittal in his favour was confirmed. In so far as the other two accused are concerned it reversed the order of acquittal and convicted the printer and publisher accused No. 1 and the writer accused No. 2 under Section 292, Indian Penal Code but taking into consideration the degree of obscenity in the passage complained of a fine of Rs. 25 only was imposed on each of the accused and in default they were directed to suffer simple imprisonment for a week. It was also directed that copies of the magazine Rambha in which the offending story was published and which may be in possession and power of the two accused be destroyed.

3. The allegation against the accused is that certain passages in the story of Shama at pp. 111-112, 114, 116, 118-121, 127, 128, 131 and 134 are said to be obscene. In support of this the complainant examined himself and led the evidence of Dr. P. G. Sahstrabudhe and Dr. G. V. Purohit in support of his allegation that the novel is obscene and that the writer and publisher contravened the provisions of Section 292, Indian Penal Code. Accused No. 1 stated that the story for Shama was written by an able writer which depicted the frustration in the life of a poet and denied that it was obscene. The writer Kakodkar, accused No. 2 claims to have written about 60 such stories which are published in different periodicals by reputed publishers. He also denies that Shama is obscene and states that he has introduced certain characters in order to condemn the words and glorify the best and it was never his intention to titillate the sex feelings of the readers, but on the other hand his attempt was to achieve the literary and artistic standard which was in keeping with the style of some of the able and successful writers of Marathi literature. In support of his defence, he examined Shri Keluskar and Prof. Madho Manohar D. Ws. 1 and 2 respectively. The Court on its own summoned and examined Prof. N. S. Phadke and Acharya P. K. Atre. Both the Magistrate as well as the learned Judge of the High Court were conversant with Marathi and they seem to have read the story of Shama in the original, an advantage which we have not got. However, on a consideration of the offending passages in the story to which we shall refer presently, they came to different and opposite conclusions.

4. It is apparent that the question whether a particular article or story or book is obscene or not does not altogether depend on oral evidence because it is the duty of the Cour