- (1.) The Appellant is one of fourt partners of a firm which owns a book-stall in Bombay. He was prosecuted along with the other partners under section 292, Indian Penal Code. All the facts necessary for our purpose appear from the simple charge with two counts which was framed against them. It reads : "That you accused Nos. 1, 2, 3, 4 on or about the 12th day of December, 1959 at Bombay being the partners of a book-stall named Happy Book Stall were found in possession for the purpose of sale copies of an obscene book called Lady Chatterley's Lover (unexpurgated edition) which inter alia contained, obscene matter as detailed separately and attached herewith and thereby committed an offence punishable u/ s. 292 of the I. P. Code. AND That you Gokuldas Shamji on or about the 12th day of December 1959 at Bombay did sell to Bogus Customer Ali Raza Sayeed Hasan a copy of an obscene book called Lady Chatterley's Lover (unexpurgated edition) which inter alia contained obscene matter as detailed separately and attached herewith and thereby committed an offence punishable u/ s 292 of the I. P. Code." The first count applied to the appellant who was accused No. 2 in the case. The Additional Chief Presidency Magistrate IIIrd Court, Esplanade, Bombay convicted all the partners on the first count and fined each of them Rs. 20 with one week's simple imprisonment in default. Gokuldas Shamji was additionally convicted on the second count and was sentenced to a further fine of Rs. 20 or like imprisonment in default. The Magistrate held that the offending book was obscene for purposes of the section. The present appellant filed a revision in the High Court of Bombay. The decision of the High Court was against him. He has now appealed to this Court by special leave and has raised the issue of freedom of speech and expression guaranteed by the nineteenth Article. Before the High Court he had questioned the finding of the Magistrate regarding the novel.
(2.) It is convenient to set out S. 292 of the Indian Penal Code at this stage : "292. Whoever- Sale of obscene books, etc.- (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 (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, made, 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 any person is engaged or is ready to engage in any act which is an 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 with imprisonment of either description for a term which may extend to three months, or with fine, or with both. Exception- This section does not extend to any book, pamphlet, writing, drawing or painting kept or used bona fide for religious purposes or any representation, sculptured, engraved, painted or otherwise represented on, or in any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
(3.) To prove the requirements of the section the prosecution examined two witnesses. One was the test purchaser named in the charge and the other an Inspector of the Vigilance Department. These witnesses proved possession and sale of the book which facts are not denied. The Inspector in his testimony also offered his reasons for considering the book to be obscene. On behalf of the accused Mr. Mulkraj Anand, a writer and Art critic gave evidence and in a detailed analysis of the novel, he sought to establish that in spite of its apparent indelicate theme and the candidates of its delineation and diction, the novel was a work of considerable literary merit and a classic and not obscene. The question does not altogether depend on oral evidence because the offending novel and the portions which are the subject of the charge must be judged of by the court, in the light of Section 292, Indian Penal Code and the provisions of the Constitution. This raises two broad and independent issues of law - the validity of Section 292, Indian Penal Code and the proper interpretation of the section and its application to the offending novel.;