Case Note & Summary
The appellant, author Chandrakant Kalyandas Kakodar, and the printer-publisher were convicted under Section 292 of the Indian Penal Code for publishing an allegedly obscene short story 'Shama' in the 1962 Diwali issue of a Marathi magazine. A complaint was filed alleging that the story and other articles were obscene and tended to corrupt readers. The trial magistrate acquitted the accused, finding no obscenity. On appeal by the State, the Bombay High Court reversed the acquittal and convicted the author and publisher, imposing a fine and ordering destruction of the magazines. The accused appealed to the Supreme Court by special leave. The Supreme Court examined the test for obscenity laid down in prior decisions, notably Ranjit D. Udeshi v. State of Maharashtra, which followed the Hicklin test: whether the matter tends to deprave and corrupt those open to immoral influences. The Court emphasized that an overall view of the entire work is necessary, considering literary merit and contemporary social morality. The story depicted a poet's moral struggles and resistances to sexual temptations, conveying a moral against sensual degradation. The Court held that the story, read as a whole, did not pander to prurient interests and was not obscene. It found the High Court's view erroneous, allowed the appeal, set aside the convictions and sentences, and ordered refund of fine if paid.
Headnote
A) Criminal Law - Obscenity - Test for Obscenity - Indian Penal Code, 1860, Section 292 - The core test is whether the matter tends to deprave and corrupt persons open to such influences, judged by taking an overall view of the entire work, considering its literary merit and contemporary social morality - Held that obscene matter must be considered by itself to see if it is so gross that it is likely to deprave; the court must not overlook the influence on social morality and the claim of literary merit, relying on evidence of litterateurs if needed (Paras 2-5). B) Constitutional Law - Freedom of Speech and Expression - Balance with Public Morality - Constitution of India, Article 19(1)(a) - A balance must be maintained between freedom of speech and public decency; when the latter is substantially transgressed, the former must give way - Held that treating sex in art and literature is not itself obscenity; art must preponderate over obscenity, and the standard is national, not based on isolated cases or adolescents alone (Paras 5-8). C) Criminal Law - Obscenity - Application to the Story 'Shama' - Indian Penal Code, 1860, Section 292 - The story, read as a whole, conveyed a moral of resisting temptation, with sex subordinated to the moral element; it did not pander to prurient interests - Held that the story was not obscene, as the dominant effect was not to excite sexual passions but to condemn degradation, with no likelihood to deprave a class of readers; conviction set aside (Paras 9-11).
Issue of Consideration
Whether the short story 'Shama' published in a magazine was obscene under Section 292 of the Indian Penal Code, and whether the conviction of the author and publisher was justified.
Final Decision
The Supreme Court allowed the appeal, set aside the conviction and sentence, and ordered refund of fine if paid. The story was held not obscene as it did not pander to prurient interest and the moral element predominated.
Law Points
- Legal points not extracted
- The test of obscenity is whether the tendency of the matter is to deprave and corrupt those open to immoral influences
- The court must take an overall view of the entire work
- Obscene passages must be so gross and decided that they are likely to corrupt
- The work's predominant literary merit and impact on contemporary social morality are relevant
- Writers cannot be required to write only for adolescents
- The standard is the impact on a class likely to read the work
- not an isolated case
