The test of 'obscenity' as laid down in The Queen v. Hicklin and followed in India was applied to determine whether the words uttered constituted an offence punishable under S.294 (b) IPC.

1. The Ist accused in C. C. No. 95 of 1966 on the file of the Sub Magistrate's Court, Chengannur, is the revision petitioner. P. W.1 filed a complaint alleging that the accused committed offences punishable under S.294 (b), 323,341 and 34, IPC.

2. The substance of the complaint is as follows: On 121966 P. W.1 went to the tea shop of one Bhaskara Pillai at about 9.00 P. M. for getting the price of milk supplied by him. The 1st and 2nd accused were present in the tea-shop at the time. The 1st accused on seeing the complainant called out and slapped him on his left cheek. The 2nd accused caught hold of him and pushed him.

3. The learned Magistrate found that both the accused were guilty. He convicted the 1st accused of offences punishable under S.294 (b) and 323 and sentenced him to pay a fine of Rs.25/-, and in default to

undergo S. I. for 10 days for the offence punishable under S.294 (b) and to pay a fine of Rs. 50/-, and in default to undergo S. I. for one month for the offence punishable under S.323 IPC. He convicted the 2nd accused of the offence punishable under S.341 IPC. and sentenced him to pay a fine of Rs. 25/-, and in default to undergo S. I. for 7 days.

4. Both the accused filed appeals to the Sub Divisional Magistrate, Chengannur. The Sub Divisional Magistrate confirmed the convictions and sentences so far as the 1st accused was concerned, and acquitted the 2nd accused.

5. The only point argued was that the 1st accused has not committed an offence punishable under S.294 (b) IPC. by uttering the words above-mentioned. The courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. T am not inclined to take this view. In The Queen v. Hicklin 1868-3-Q. B. 360 at 371 Cockburn C J. laid down the test of 'obscenity' in these words:

"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".

This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra AIR. 1965 SC. 881 at 887. In Samuel Roth v. U. S. A. (1957) 354 U. S.476, Chief Justice Warren said that the test of 'obscenity' is the "substantial tendency to corrupt by arousing lustful desires". Mr. Justice Harlan observed that in order to be 'obscene' the matter must "tend to sexually impure thoughts". I do not think that the words uttered in this case have such a tendency. It may be that the words are defamatory of the complainant, but I do not think that the words are 'obscene' and the utterance would constitute an offence punishable under S.294 (b) IPC.

6. I therefore set aside the conviction of the 1st accused under S.294 (b) and the sentence of fine imposed upon him for that offence. The fine, if any, paid by him under that count will be refunded to him.

7. The conviction of the 1st accused under S.323 and the sentence imposed for that offence are confirmed. The revision petition is allowed to the extent indicated. Allowed.