Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2074 OF 2002
Devidas Ramchandra Tuljapurkar,
Age52 years, OccService
R/o B5, N4, CIDCO, Aurangabad APPLICANT
VERSUS
1 The State of Maharashtra
2. Vasant Dattatraya Gujar
Age67 years, OccService
Bombay Port Trust
R/o Shri Swami Samartha Nagar,
57/74, B, Gharpure Path,
Girgaon, Mumbai
3. Dhananjay Dadasaheb Kulkarni
Age48 years,
R/o Latur RESPONDENTS
.......
Mr.V.J.Dixit, Sr.Counsel with Mr.S.P.Katneshwarkar for applicant
Mr.N.B.Patil, APP for respondent No.1 State
Mr.Prashant Kulkarni, Advocate for respondents No.2 & 3 (Absent)
.......
[CORAM : A.V.POTDAR, J.]
th
Reserved on : 14 January 2010
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Pronounced on : 20 January 2010
JUDGMENT :
1. By the present application u/s 482 of the Criminal
Procedure Code, the applicant, who is original accused No.1 in
RCC No.134/1995, prays to quash and set aside the order dated
03.08.2002 passed in criminal revision application No.79/2001
thereby rejecting the revision & confirming the order dated
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04.05.2001 passed below Exhibit66 in RCC No.134/1995, filed by
the applicant No.1 along with respondents No.2 & 3, seeking
discharge.
2. It appears that the present application came to be
admitted on 06.06.2003.
3. Such of the facts as are necessary for the just decision
of the present application can be summarized thus
a) One poem, composed by present respondent No.2,
titled as “GANDHI MALA BHETALA” was published in the month of
July August 1994 in an issue of bimonthly magazine cum bulletin
published by present applicant and printed by present respondent
No.3. This bulletin is meant for circulation amongst members of All
India Bank Association for private circulation.
b) An organization, namely, “Patit Pawan Sanghatana”,
through one V.V.Anskar, filed an application with the
Commissioner of Police, Pune, making grievance that the said
poem is obscene and the contents of the same would lower down
the image of the father of the nation i.e. Mahatma Gandhi. The
Commissioner of Police, Pune, in turn, transmitted the said
complaint to the Latur Police. On the basis of the said complaint
an offence at CR No.7/1994 came to be registered u/s 153A, 153
B and 292 of the Indian Penal Code, against the present applicant
and respondents No.2 and 3. After completion of investigation,
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charge sheet was filed in the Court of Chief Judicial Magistrate,
Latur and then the came was numbered as RCC No.134/1995.
c) It further appears that the present applicant and
respondents No.2 and 3 appeared before the CJM, Latur and
prayed for discharge by filing an application at Exhibit66. It
appears that the learned CJM, Latur, discharged the applicant and
respondents No.2 and 3 for the offence punishable u/s 153A and
153B, however, proceeded against them u/s 292 (2) of the IPC,
vide order dated 04.05.2001.
d) It also appears that being aggrieved by the order dated
04.05.2001 criminal revision application No.79/2001 came to be
filed before the learned Sessions Judge, Latur. However, the
Criminal Revision Application No.79/2001 came to be rejected vide
order dated 03.08.2002 and hence the present application u/s 482
of the Criminal Procedure Code for quashing of the said order for
the grounds stated in paragraph No.21 (i) to (xv).
4. In this background, heard Mr.V.J.Dixit, learned senior
counsel for the applicant followed by the submissions of learned
APP. Also perused the order passed below Exhibit66 as well as the
impugned order dated 03.08.2002.
5. It is urged by learned senior counsel on behalf of the
applicant that the the contents of the poem “Gandhi Mala Bhetala”
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may be vulgar, but may not be obscene. According to learned
senior counsel, the poem composed by present respondent No.2, is
a fair criticism and a piece of literature in the form of satire. As the
bulletin, in which the poem was published, was meant for
circulation amongst the highly qualified and educated bank
employees only and the same is also appreciated by number of
renowned persons and hence it cannot be said that the contents of
the said poem are obscene and may hurt the feelings of the
readers. In the premise, it is urged that no offence is made out to
proceed against the applicant and respondents No.2 and 3 u/s 292
of the Indian Penal Code. Learned senior counsel, in support of his
contentions, placed reliance on the judgment reported in AIR 1986
SC 967 in the matter of “Samaresh Bose V/s Amal Mitra” . He
also placed reliance on the ruling reported in
AIR 1970 SC 1390
in the matter of “Chandrakant Kalyandas Kakodkar V/s The
State of Maharashtra” and on the judgment reported in AIR 1965
in the mater of
SC 881 “Ranjit Udeshi V/s State of
Maharashtra” .
6. Before considering the ratio laid down in the above
referred judgments, it is necessary to consider that all the three
judgments, referred supra, arise out of the trials concluded by the
concerned criminal courts after evidence was lead and the courts
below came to the conclusion that the contents of the publication
impugned in the said matters, are obscene and the said judgments
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do not relate to the orders passed on discharge applications.
7. In his submissions, learned APP supports the orders
passed by both the courts below and prays for dismissal of the
application.
8. Section 292 of the Indian Penal Code, as amended in
the year 1969, reads as follows:
“292. Sale, etc., of obscene books, etc.
(1) For the purposes of subsection (2), a book,
pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be
deemed to be obscene if it is lascivious or appeals to the
prurient interest or if its effect, or : (where it comprises
tow or more distinct items) the effect of any one of its
items, is, if taken as a whole, such as to tend to
deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it.
(2) Whoever
(a) sells, lets to hire, distributes, publicly
exhibits or in any manner puts into circulation, or for
purposes of sale, hire, distribution, public exhibition or
circulation, makes produces or has in his possession
any obscene book, pamphlet, paper, drawing, painting,
representation or figure or any other obscene object
whatsoever, or
(b) imports, exports or conveys any obscene
object for any of the purposes aforesaid, or knowing or
having reason to believe that such object will be sold, let
to hire, distributed or publicly exhibited or in any
manner put into circulation, or
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(c) takes part in or receives profits from any
business in the course of which he knows or has reason
to believe that any such obscene objects are, for any of
the purposes aforesaid, produced, purchased, kept,
imported, exported, conveyed, publicly exhibited or in
any manner put into circulation, or
(d) advertises or makes known by any means
whatsoever that nay person is engaged or is ready to
engage in any act which is in offence under this section,
or that any such obscene object can be procured from or
through any person, or
(e) offers or attempts to do any act which is an
offence under this section, shall be punished on first
conviction with imprisonment of either description for a
term which may extent to tow years, and with fine
which may extent to two thousand rupees, and, in the
event of a second or subsequent conviction, with
imprisonment of either description for a term which may
extent to five years, and also with fine which may
extent to five thousand rupees.
Exception – This section does not extent to
(a) any book, pamphlet, paper, writing, drawing,
painting, 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
(ii) which is kept or used bona fide for religious
purposes:
(b) any representation sculptured, engraved, painted
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or otherwise represented on or in
(i) any ancient monument within the meaning
of the Ancient Monuments and Archaeological Sites and
Remains Act, 1958, or
(ii) any temple, or on any car used for the
conveyance of idols, or kept or used for any religious
purposes”
9. Before this amendment, the definition of the obscene was
not inserted in the Penal Code, however, by virtue of this
amendment, the meaning of obscene can be gathered from the
ingredients of the section which reads as follows:
“8. ‘OBSCENE’ MEANING OF
(a) Ingredients
Sub Section (1), which defines the word ‘obscene”
was inserted, in this section by the Indian Penal Code
(Amendment) Act 1969. Before it this Code did not
contain any definition of this word. The said subs (1)
now lays down that for the purposes of subs (2) of this
section, a book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other object shall
be deemed to be obscene if:
(i) it is lascivious of
(ii) it appeals to the prurient interest, or
(iii) its effect, or (where it comprises two or
more distinct items) the effect of any of its items, if
taken as a whole, such as to tend to deprave and
corrupt persons, who are likely having regard to all
relevant circumstances, to read, see or hear the matter
contained or embodied in it.”
10. Meaning of ‘obscene’, as per “Black’s Law Dictionary,
reads thus
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“Obscene, Extremely offensive under
contemporary community standard of morality and
decency; grossly repugnant to the generally accepted
notions of what is appropriate. Under the Supreme
Court’s three part test, material is legally obscene – and
therefore not protected under the First Amendment – if,
taken as a whole, the material (1) appeals to the
prurient interest in sex, as determined by the average
person applying contemporary community standards;
(2) portrays sexual conduct, as specifically defined by
the applicable state law, in a patently offensive way;
and (3) lacs serious literary, artistic, political, or
scientific value.
If there be no abstract definition..... should not the
word ‘obscene’ be allowed to indicate the present
critical point in the compromise between candor and
shame at which the community may have arrived here
and now? United States V Kennerley 209 F.119.121
(S.D.N.Y.1913) (per Hand.J.)
11. In the matter of Somersh Bose, referred supra, it is
observed by the Apex Court as to what is the mode for deciding the
question of obscenity in the books, which reads thus
“ It is beyond dispute that the concept of
obscenity usually differs from country to country
depending on the standards of morality of
contemporary society in different countries. In our
opinion, 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. The Judge
should thereafter place himself in the position of a
reader of every age group in whose hands the book is
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likely to fall and should try to appreciate what kind of
possible influence the book is likely to have in the
minds of the readers. A Judge should thereafter apply
his judicial mind dispassionately to decide whether the
book in question can be said to be obscene within the
meaning of S.292, IPC by an objective assessment of
the book as a whole and also of the passages
complained of as obscene separately. In appropriate
cases, the Court, for eliminating any subjective element
or personal preference which may remain hidden in the
subconscious mind and may unconsciously affect a
proper objective assessment, may draw upon the
evidence on record and also consider the views
expressed by reputed or recognized authors of literature
on such questions if there be any for his own
consideration and satisfaction to enable the Court to
discharge the duty of making a proper assessment.”
12. In the ruling of Samaresh Bose, reference of the
judgment reported in AIR 1970 SC 1390 (supra) is given at para 25
as well as reference of the judgment reported in AIR 1965 SC 881
(Supra) is given in paragraphs No.23,25 and 26, which are the
cases decided after opportunity being given to the defense and
prosecution to lead evidence on the point as to whether any act,
committed by the respective appellants, covers under the
provisions of Section 292 of the IPC. In view of the observations of
the Apex Court in the matter of Samaresh Bose (supra), I do not
think it appropriate to discuss the ratio laid down in the other two
cases, separately.
13. The question requires to be considered is as to whether
in the given parameters, in the rulings referred supra, what is the
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standard of morality in India where the image of late Shri
Mahatma Gandhi, regarded as father of the Nation, is regarded in
high esteem by the public at large. Mahatma Gandhi is regarded as
a pious person and a saint in this Country. Mahatma Gandhi, is
known for his simple living and high thinking and high morals. The
contents of the poem, “Gandhi Mala Bhetala”, do not suggest that
again Mahatma took birth on the earth and the present situation
was narrated to him by somebody else, but it is a theme of the
poem that after the demise of Mahatma Gandi, when he met the
author, some indecent words are put in his mouth, alleging that
this is the present day scenario. Though the poet has not given
numbers to the stanzas of the poem, yet for the sake of
convenience, numbers are given to the same. The words used in
stanzas No.4, 8, 9, 10, 12, 23, 25, 27, 28, 30, 34 and 36 of the said
poem are not only vulgar but also obscene and indecent, which will
definitely damage the image and reputation of the father of nation,
which is nurtured by every citizen of this Country. In the premise, I
am not in agreement with the learned senior counsel appearing for
the applicant that considering the remarks given by some
renowned authors it has to be held that the poem is a fair criticism
and satire of Gandhian thoughts and ideals, as the said remarks
are given by intellectual persons and not by general public.
Secondly, as the said remarks are not forming part of the Court
record, as the said authors or renowned persons have not deposed
before the Court on oath and at the same time, there are no
remarks of the readers, amongst whom the bulletin was circulated,
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the said remarks cannot be accepted. At the time of considering
case of discharge, the court has to consider as to whether from the
set of evidence before it, prima facie offence is made out or not. In
the present case, prima facie offence, punishable u/s 292 of the
IPC, is made out. As it is not disputed that the poem composed by
respondent No.2 is published and circulated by the present
applicant, which is certainly obscene in nature and hence, there
are no merits in the application. In the premise, the application
needs to be dismissed.
14. In the result, the application is rejected. As the
application was admitted, in other words rule was issued by this
court, the same stands discharged accordingly.
15. As the application fails, the applicant and respondents
No.2 and 3 are directed to appear before the Chief Judicial
Magistrate, Latur to face the trial, within a period of 3 weeks from
today. If the applicant and respondents No.2 and 3, fail to appear
before the learned CJM, Latur, the learned CJM, to take
appropriate steps for securing presence of the applicant and
respondents No.2 and 3.
[A.V.POTDAR, J.]
drp/A10/criapln207402
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