The court held that the impugned portions of the magazine were obscene within the meaning of Section 292 of the Indian Penal Code based on the tests formulated in 'Queen v. Hicklin' and the intention and purpose of the publication.

( 1 ) THIS is a petition for revision on behalf of the editor, printer and publisher of a Bengal Monthly Magazine "nara Nari" against a conviction by the Presidency Magistrate, Calcutta under Section 292 of the Indian Penal Code. The petitioner has been sentenced to rigorous imprisonment for two months and a fine of Rs. 200/-, in default to rigorous imprisonment for two weeks.

( 2 ) THE principal question in this case is whether the impugned portions of the three issues of the magazine in question are obscene coming within the mischief of Section 292 of the Indian Penal Code.

( 3 ) THE word "obscene" has not been defined' in the Indian Penal Code. Section 292 of the Code, as it now stands, was introduced into the Code by the Obscene Publications Act (VIII of 1925) with a view to give effect to Article 1 of the International Convention for the Suppression of the Circulation of, Traffic in Obscene Publications, signed at Geneva on behalf of the Government of India in 1923. No attempt was made in the International Convention for defining the term "obscene". No successful at-tempt has yet been made by the Courts to define this term.

( 4 ) THE tests to be applied for determining whether a particular object is obscene or not would depend on various circumstances. The idea as to what is to be deemed to be obscene has varied from age to age, from region to region, dependant upon particular social conditions, There cannot be an immutable standard of moral values. There being no definition in "the Code, it not being possible to enunciate any, we may consider as to what tests should be applied to determine whether a particular painting, drawing, pamphlet, literature, paper or object is obscene or not.

( 5 ) IN 'queen v. Hicklin', (1868) 3 QB 360 Cockburn C. J. formulated (at page 371) certain tests which are very often applied to cases of this description, he observed :"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 influence, and into whose hands a publication of this sort may fall. "

( 6 ) AT another place it was observed by Cockburn C. J. (page 370):"now, it is found here as a fact that the work which is the subject matter of the present proceedings was, to a considerable extent a obscene publication, and by reason of obscene matter in it. calculated to produce pernicious effect in depraving and debauching the mind of the persons into whose hands it might come. "

( 7 ) FURTHER, it appears that the Courts have, more often, restricted the use of the term obscenity to sexual immorality only. Such matters as would tend to stir in persons, into whose hands such matter is ordinarily expected to reach, sex impulse which lead to sexually impure and lustful thoughts, are declared as obscene, attracting the jurisdiction of the Court to ban out such publications. The true test is not to find out what depraves the morals in any way whatsoever, but what leads to deprave only in one way, viz. by exciting sensual desires and lascivious thoughts. The effect produced on an ordinary member of the society or a particular class of readers for which a particular publication may be meant has to be ascertained. It is neither a man of wide culture or rare character nor a person of a depraved mentality should be thought of as being the readers of such literature. The standard of readers is neither one of exceptional sensibility nor one without any sensibility whatsoever.

( 8 ) BEARING in mind these general principles we may refer in short to the facts in this particular case. Mr. Dutt appearing on behalf of the petitioner does not contest the principles above mentioned. The real question is whether on a perusal of the impugned portions of the three different issues of the magazine they definitely come within the term obscene.

( 9 ) WE generally agree with the observations made by the Presidency Magistrate with regard to the d