IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 144 of 2003. Date of Decision: 12.7.2010. _______________________________________________ Mohammad Rafik. ….Petitioner. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the appellant : Mr. S.D.Vasudeva, Advocate with Mr. Ravinder Advocate For Respondent. : Ms. Ruma Kaushik, Addl. Advocate General. Dev Darshan Sud, J.(Oral). This revision petition has been preferred by the petitioner who has been convicted by the learned trial Court under Section 292 of the Indian Penal Code and sentenced to simple imprisonment for three months and pay find of Rs.500/-. 2. The facts of the case are that on 28.8.1999, at around 6.30 p.m., H.C. Hans Raj (PW3) along with LHC Udho Ram on the direction of Deputy Superintendent of Police, Bimukat Ranjan, raid the shop of the accused at Bhagsu Nag Road, Mecleodganj and one brass sculpture (Ext.P-1) depicting in an obscene act, was photographed and taken with the possession. The brass sculpture was sealed into a parcel which was marked ‘T’ and taken into possession and was handed over to PW-2 Rattan Chand. Rukka Ext. PW3/A was sent to Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Police Station, Dharamshala on the basis of which First Information Report (Ext.PW1/A) was registered. The accused was charged for committing offence under Section 292 of the Indian Penal Code. The learned court on the testimony of the witnesses holds that the sculpture seized is that of figurine in an obscene posture and its possession and display constitutes an offence under Section 292 I.P.C. The learned trial Court affirmed the judgment and dismissed the appeal. 3. I have heard learned counsel for the parties and have gone through the record. 4. PW-2 Rattan Chand states that he is a shopkeeper at Mecleodganj. On 28.8.1999 he was called by the police personnel in the shop of the petitioner where he had kept a number of statutes and figurines for sale. Brass sculpture (Ext.P-1) was sealed in his presence and photographs Ext.P-2 and Ext.P-3 were also taken at the spot. He admits that the shop of the petitioner is situated in a densely populated area. 5. PW-3 H.C. Hans Raj states that on 28.8.1999, he and Constable Udho Ram went to the shop of the accused and found one small statute which was taken into possession and photographs Ext.P- 2 and Ext.P3 was taken on the spot. He also admits that the shop is situated in a very densely populated area. In order to arrive at this conclusion, the learned court holds that Ext.P-1 is obscene per se and does not require any supportive evidence for reaching this conclusion. The photographs of sculpture Ext P-2 and P-3 show “as if two person in naked position were embracing each other and were about to indulge in some activity”. The court then proceeds that “not only this, if movements of this sculpture (Ext.P-1) are put into action, it seems to be depraved and corrupt lascivious thoughts. Thus, a mere look of the 3 sculpture (Ex.P-1) was enough to corrupt the mind of an ordinary person”. 6. A look at the photographs Ext.P-2 and Ext.P-3 shows that even if the evidence of the prosecution is accepted without any cross-examination, there is nothing to indicate that the so called figurine is obscene. In fact, Ext.P-3 is faded out and nothing can be made out. The concept of obscenity has been considered in a number of cases. 7. In Chandrakant Kalyandas Kakodkar Vs. The State of Maharashtra and others, AIR 1970 S.C. 1390, the Supreme Court holds: “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 Court to ascertain whether the book or story or any passage or any passages therein offend the provisions of S. 292……………………. 5. What is obscenity has not been defined either in Section 292, Indian Penal Code or in any of the statutes prohibiting and penalizing, mailing, importing exporting, publishing and selling of obscene matters………………” (PP 1391 & 1392). 8. Similarly in Samaresh Bose and another Vs. Amal Mitra and another, AIR 1986 S.C. 967, the court ruled: “28 In England, as we have earlier noticed, the decision on the question of obscenity rests with the Jury who on the basis of the summing up of the legal principles governing such action by the learned Judge decides whether any particular novel, story or writing is obscene or not. In India, however, the responsibility of the decision rests essentially on the Court. As laid down in both the decisions of this Court earlier referred to, “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 court to ascertain whether the book 4 or story or any passage or passages therein offend the provisions of S. 292, I.P.C………………………”(PP 980 ) 9. In Om Prakash Vs. State of M.P. 1989 (3) Crimes 589, a Division Bench of the Madhya Pradesh High Court analyzing the principles of law applicable held: “22 However, we find though no arguments were addressed on this point viz. that the convictions of the appellants under Section 294 of the Indian Penal Code are unsustainable. In Sobaran Singh V. State, (1962 J.L.J. Note 135). As regards the abuses, it was held that no literal significance be attached to them. “The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. Mere platitudinous utterances signifying the enraged stte of the person’s mind would not be sufficient to attract the application of the provisions of Section 294 of the Indian Penal Code”. Such is also the view taken in Dal Singh Vs. State of M.P., (1957 M.P.L.J. Note 62) and Chandrakant Kakodkar V. State of Maharashtra, (AIR 1970 S.C.1390). Thus, “mere vulgar abuses” do not constitute offence under Section 294 of the Indian Penal Code, though of course in certain circumstances intentional insult with intent to provoke breach of peace may enable a court to frame charge under Section 504 of the Indian penal Code”. (PP 595 Emphasis supplied). 10. The Punjab and Haryana High Court in O.P.Lamba and others Vs. Tarun Mehta and others, 1988 Cri.L.J.610 summarizing the principles of law applicable held: “4.The photograph marked 'A' is totally smudged and indecipherable. Except the face of a woman, nothing else can be made out even with a magnifying glass. Even the learned counsel for the respondent when confronted could hardly express anything material for the purposes of this case. In view of this, it is impossible to hold that this picture can be any incentive to sensuality or can excite impure thoughts in the minds of ordinary persons of normal temperament who may happen to took at it. I am of the considered view that for the 5 purpose of testing whether a picture is obscene or not, one has hardly to depend upon any oral testimony. What has to be considered is to a great extent the surrounding circumstances such as the pose, the posture, the suggestive element in the picture and last of all the person or persons in whose hand it is likely to fall. This picture, as already opined, hardly conveys anything except that one can see the, face of a woman and that too with an effort. None has so far attempted to define obscenity. However, the test of obscenity, as laid down in Queen v. Hicklin, (1868) 3 QB 360 and accepted by the Supreme Court of India in Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 : (1965 (2) Cri LJ 8), is: "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........it is quite certain that it 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 above-noted picture does not meet this test at all. In the present day society in India, a book, picture or/a publication, which deals with such matters cannot per se be said to be obscene. Great emphasis is being laid on family planning and in that connection it has become absolutely necessary to impart education about sex to the masses. It is a matter of common knowledge that there is even a thinking to introduce sex education as one of the subjects to be taught to the younger generation. 5. Another aspect of the matter of which the Court appears to have remained completely oblivious of is that the film "Together with Love" which has been advertised through this publication has not at all been characterised as obscene. As a matter of fact, it is not indicated any where or urged that the complainant has seen this picture at all. Besides this, this film before its exhibition must have been subjected to a certificate of the Board of Censor under the Cinematograph Act, 1952. Law presumes the regular performance of all official acts. I, however, do not suggest, even for a moment, that the grant of 6 such a certificate debars the court from judging the obscenity of a film being exhibited publicly or that the certificate of the Board of Censor is conclusive; yet it can also not be lost sight of that such a certificate is the opinion of a high powered Board specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. All I mean to say is that rebuttable presumptions which arise in favour of the statutory certificate can be negatived by positive evidence. No such evidence was before the Court at the time of passing the impugned order dt. August6,1986, directing the petitioners to come and face the trial. I am, therefore, of the view that the trial Magistrate should not have normally brushed aside what another Tribunal "for similar purpose" has found. 6. Still further, what is utterly lacking in the case is the mens rea on the part of the petitioners. It is settled law that unless a statute either clearly or by necessary implication rules out mens rea as to constitute part of the crime, nobody can be found guilty of an offence under the Criminal law unless he has got a guilty mind. Mens rea, of course, can be proved by circumstantial evidence. In the instant case, as has been pointed out right in the beginning, the petitioners who are in the top echelons of the organisation that publishes the daily paper are hardly concerned with the day to day working of the same. It is elementary that such like advertisements are received in the office of the Press in the ordinary course of business and are printed and published on the payment of prescribed rates. No allegation has been made on behalf of the complainant much less supported by any evidence that the petitioners were at any stage made aware of the printing and publication of this advertisement any time prior to the date i.e. April 21, 1986. It was opined as early as the beginning of this century in Mumtaz Ali v. Emperor, 1905 Pun Re 35 that the mere fact that a person is proprietor and publisher of a newspaper is not sufficient to render him criminally liable in respect of matter inserted therein by one of his servants. There must be a distinct finding that the matter complained of was inserted by the order or owing to the negligence of the proprietor.” (PP 612 & 613) 7 11. In Raj Kapoor Vs. Laxman, AIR 1980 Supreme Court 605, the court also considers the parameters of Section 292 of the Indian Penal Code within the frame work of the law relating to sensor. 12. These principles were aptly summarized in Ajay Goswami Vs. Union of India and others (2007) 1 SCC 143, the court ruled: “66 Where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its “obscene” content. This view was accepted by this Court in Ranjut D. Udeshi V. State of Maharashtra: (AIR pp. 886 & 889, paras 9 & 21) Where there is propagation of ideas, opinions and information of public interest or profit the approach to the problem may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene……… Where are and obscenity are mixed, the element of art must be so prepondering as to overshadow the obscenity or make it so trivial/inconsequential that it can be ignored; obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech. “69 In Ranjit Udeshi this Court held that the delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a last resort by the Supreme Court and, therefore, the evidence of men of literature or others on the question of obscenity is not relevant. However, in Samaresh Bose V. Amal Mitra this Court observed: (SCC p. 314, para 29) In appropriate cases, the court, for eliminating any subjective element or personal preference which 8 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. 71. The test for judging a work should be that of an ordinary man of common sense and prudence and not an “out of the ordinary or hypersensitive man”. As Hidayatullah, C.J. remarked in K.A. Abbas: (SCC p. 802, para 49) “If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped”. 75. The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions.” 13. The law is, therefore, now well settled that it is not ordinary sensitive mind which has to be considered but the facts are to be considered objectively. 14. I find from the judgment of both the courts below that mere observations have been made regarding the figuring has the tendency of corrupting an ordinary innocent mind. The court seems to have been overawed by a moralistic approach to the case rather than considering the law in objectively. Moreover, the evidence of PW2 and PW3 is unreliable and it is not understood as to why when there were other independent witnesses they have not been associated with the so called search. 9 15. In these circumstances, this petition is allowed. The conviction and sentence of the learned trial Court is quashed and set aside. The bail bonds furnished by the petitioner are discharged. (Dev Darshan Sud), Judge. July 12,2010 (R)