Case No Gr/579 of 1965
In the Court of the Presidency Magistrate, 9th Court, Calcutta
State Vs Malay Roychoudhury
The final order and date of such order
Accused is found guilty of the offence punishable under Section 292 Indian Penal Code, is convicted thereunder and sentenced to pay a fine of Rs 200/- or simple imprisonment for one month. Copies of the impugned publication be destroyed.
A.K.Mitra
Presidency Magistrate, 9th Court
Calcutta, 28th December 1965
In all cases in which the Magistrate inflicts imprisonment or fine exceeding two hundred rupees or both a brief statement of the reasons for the conviction is to be stated.
1. Police have submitted charge sheet against the accused Malay Roychoudhury under section 292 Indian Penal Code upon the allegations that he is the author of an obscene poem captioned 'Prachanda Baidyutik Chhutar' ( Stark Electric Jesus ) published in a Bengali journal Hungry Generation of which he is said to be one of the pioneers responsible for its circulation and distribution, it is also alleged that on 4th September 1964 from his residence at Patna the manuscript of the poem in question and a copy of the aforesaid booklet containing the said obscene poem were recovered aming other sundry things.
2. Prosecution has examined 14 witnesses and has proved a number of documents including the manuscript of the poem concerned. Accused, who has pleaded not guilty and claims to be tried called 5 defense witnesses.
3. That the accused is the author of impugned poem and is connected with the management of the periodical named Hungry Generation are admitted by the Police Witness One Samir Kumar Basu, Police Witness Two Shakti Chattopadhyay, Police Witness Three Pabitra Ballabh, Police Witness Four Utpalkumar Basu prove that accused is connected with and pioneer of the periodical Hungry Generation. Police Witness Eight also testifies to the fact that accused is a founder member of the literary circle who published the said periodical and contributing articles to it. The evidence on record establishes that accused and others used to meet at the Coffee House, Albert Hall, College Street, Calcutta, where evidently they used to exchange ideas and circulate and distribute the aforesaid journal Hungry Generation. At this meeting place some of the prosecution witnesses saw and read the impugned poem under the caption 'Prachanda Baidyutik Chhutar' ( Stark Electric Jesus ) composed by the accused and published in the periodical Hungry Generation.
S.M.Barori, Police Witness Nine, Sub Inspector of Police, Detective Department, proves the seizure of the manuscript of the offending poem and a printed copy of the aforesaid periodical containing the impugned poem from the possession of the accused at Patna on 4th September 1964. The Seizure List Exhibit One and Police Witness Eleven and Police Witness Twelve -- two search witnesses corroborate Police witness Nine.
Thus it is established beyond a shadow of doubt that the accused is not only maker and producer of the impugned piece, but was found to be in possession of the manuscript and the printed copy. Police witness Thirteen, the handwriting expert proves that the manuscript is by the pen and hand of the accused. Authorship is thus proved. And Barori, Police witness number Nine has also proved, corroborated as he is by Police Witness Nine and 12 ( search witnesses ) that accused was found to be in possession of the impugned publication . So one of the ingredients of Section 292 of Indian Penal Code, namely of circulation, distribution -- making the possession present.
4. Upon the next important ingredient, namely, if the particular piece is obscene or not, we have the divergent opinion of the witnesses. Police witness One calls it obscene, equating vulgarity with obscenity. Police Witness Shakti Chattopadhyay himself a writer and one of the pioneers of Hungry Generation, does not go beyond saying that he does not like the offending poem and that it does not appeal to his aesthetic senses. To Police Witness Three Pabitra Ballabh, an MA in political Science, and a school teacher, it is unreadable, vulgar and not a piece of poetry at all. reaction of police Witness Utpalkumar Basu -- another writer, is that the offending poem is an experiment piece of writing carrying a sense of disgust. He ventures his opinion that it reveals a tense and excited mind. Police Witness Seven Pashupati Chatterjee alias Sandipan Chattopadhyay, an Assistant Inspector of Corporation of Calcutta, shares the same opinion with the Police Witness Number Four and calls it an experimental piece of writing, adding that such experiment is necessary in the interest of growth and richness of literarture . On reading of the poem he feels a depraving effect. Police Witness Number Five Subhas Ghosh a writer and Police witness number Eight Saileswar Ghosh a school teacher both praise the offending poem for its high literary value and both certify its aesthetic appeal. Defence witness One Satrajit Dutta, a teacher of Applied Psychology, in post graduate classes calls it also a kind of experimental writing but not, as whole, obscene, since it does not inflame his passion nor brings about in him any psychosomatic changes. He gives us for whatever its worth, the benefit of his opinion as teacher of psychology that a normal man by reading the offending poem would not react with any abnormal sensation, but to a common man not used to this kind of reading, he concedes reaction would be some depraving effect. Defense witness Number Three Jyotirmoy Dutta, who is a film critique and reviewer at the newspaper 'The Statesman' does not call it , after reading the whole of the offending piece obscene and finds in it not a single obscene word. Defense witness Sunil Gangopadhyay -- a short story writer, novelist and poet, similarly does not call it an obscene poem. Defense witness Number Five, Tarun Sanyal, who is a lecturer of Economics, an essayist, a text book writer and poet, shares the same view with Defense witness Number Four.
5. I have discussed at some length, the view of the witnesses for and against the offending poem. But as the Supreme Court in R.D.Udeshi Vs the State of Maharashtra 1965 ( 2) Cr L.J. observed : " The question does not altogether depend on oral evidence because the offending poem as a whole must be judged by the Court in the light of Section 292 Indian Penal Code and the provision of our constitution". Defense witness One says that the offending poem will tend to deprave common man with not a moral mind. But the effect produced on an ordinary member of the Society or a particular class of readers for which it is meant is a relevant factor. A man of wide culture or rare character or a person of depraved mentality can not be regarded as standard readers of such a piece, nor men of exceptional sensibility and men without any sensibility whatsoever. It is common knowledge that young men and women students and others with impressionable mind throng around the Coffee House and it is in evidence that at the Coffee House the offending publication in presence of the accused was freely distributed and widely discussed. So the relevant consideration is what effect it would reasonably be expected to produce on ordinary readers for whom it is meant. And as circulation has been proved and the making of the offending poem as well as possession of the publication by the accused have been undeniably established, there can be no question of lack of mens rea. In this connection it is worthwhile to refer to the negative evidence of Police witness Six T.N.Sen of 48A Shankar Haldar Lane, the police shown to be place of publication of the offending periodical, and the positive evidence of Defense witness Number Two A.K Haldar of Shankar Haldar Lane, who testifies to the fact that he permitted the accused to make use of his address in connection with the publication of the offending journal.
6. Now the question what is or is not obscene is an age-old controversy and the task of distinguishing between what is artistic and obscene has been rendered none too easier nor only because Indian Penal Code does not define the word "obscene" but also because a piece of Art or literature has not uniform appeal, is individualistic in its appeal which varies from man to man, and in the same object the insensitive sees only obscenity and the intellectual finds a message of beauty and art but nothing gross. But happily there has evolved through the ages certain norms which afford as valuable guide to the vexed question. In the context of changed approach to the question of sex a writing is now generally not regarded as obscene merely because it treats with sex and nudity. Applying however the test of obscenity as laid down by Cockburn C. J. in Hickin's case, their Lordships of our Supreme Court in R.D.Udeshi Vs State of Maharashtra ( 1964 cr. L.J.8) have observed that "Treating with sex in a manner offensive to public decency and morality ( and these are the words of our fundamental law ) judged by our National Standards and considered likely to ponder to lascivious, prurient and sexually precocious minds, must determine the result. We need not attempt to bowdlerize all literature and thus rob speech and expression of freedom. A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way."
It is further observed : ""in our opinion, the test to adopt in our country ( regard being had to our community 'mores' ) is that obscenity without a preponderating social purpose or profit can not have the constitutional protection of free speech and expression, and obscenity in treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc are matters for consideration in each particular case."
Applying the test to the offending poem and realizing it as a whole, it appears to be per se obscene. In bizarre style it starts with restless impatience of a sensuous man for a woman obsessed with uncontrollable urge for sexual intercourse followed by a description of vagina, uterus, clitoris, seminal fluid, and other parts of the female body and organ, beasting of the man's innate impulse and conscious skill as to how to enjoy a woman, blaspheming God and profaning parents accusing them of homosexuality and maste5rbation, debasing all that is noble and beautiful in human love and relationship. It is a piece of self-analysis and eroticism in autobiographical or confessional vein when the poet engages himself in a mercilessly obnoxious and revolting self-denigration and reportage of sexual vulgarity to a degree of perversion and morbidity far exceeding the customary and permissible limits of condor in description and representation. It is patently offensive to what is called contemporary community standards. It's predominant appeal to an average man considered as a whole is to prurient interest, in a shameful or morbid interest in nudity, sex and excretion. Considering the dominant theme it is dirt for dirt's sake, or, what is commonly called, hard core pornography suggesting to the minds of those in whose hands it may fall stinking wearisome and suffocating thoughts of a most impure and libidinous character and thus tending to deprave and corrupt them without any rendering social or artistic value and importance. By no stretch of imagination can it be called, what has been argued, an artistic piece of erotic realism opening up new dimension to contemporary Bengali literature or a kind of experimental piece of writing, but appears to be a report of a repressed or a most pervert mind who is obsessed with sex in all its nakedness and thrives on, or revel, in utter vulgarity and profanity preoccupied with morbid eroticism and promiscuity in all its naked ugliness and uncontrolled passion for opposite sex. It transgresses public decency and morality substantially, rather at public decency and morality by its highly morbid erotic effect unredeemed by anything literary or artistic. It is an affront to current community standards or decency and morality. The writing viewed separately and as a whole treats with sex, that great motivating force of human life, in a manner that surpasses the permissible limits judged from our community standards, and as there is no redeeming social value or gain to society which can be said to preponderate, I must hold that the writing has failed to satisfy the time honoured test. Therefore it has got to be stamped out since it comes within the purview of Section 292 Indian Penal Code. Accused is accordingly found guilty of the offence punishable under Section 292 of Indian Penal Code
A.K.Mitra
Presidency Magistrate
9th Court, Calcutta
28th December 1965
In the Court of the Presidency Magistrate, 9th Court, Calcutta
State Vs Malay Roychoudhury
The final order and date of such order
Accused is found guilty of the offence punishable under Section 292 Indian Penal Code, is convicted thereunder and sentenced to pay a fine of Rs 200/- or simple imprisonment for one month. Copies of the impugned publication be destroyed.
A.K.Mitra
Presidency Magistrate, 9th Court
Calcutta, 28th December 1965
In all cases in which the Magistrate inflicts imprisonment or fine exceeding two hundred rupees or both a brief statement of the reasons for the conviction is to be stated.
1. Police have submitted charge sheet against the accused Malay Roychoudhury under section 292 Indian Penal Code upon the allegations that he is the author of an obscene poem captioned 'Prachanda Baidyutik Chhutar' ( Stark Electric Jesus ) published in a Bengali journal Hungry Generation of which he is said to be one of the pioneers responsible for its circulation and distribution, it is also alleged that on 4th September 1964 from his residence at Patna the manuscript of the poem in question and a copy of the aforesaid booklet containing the said obscene poem were recovered aming other sundry things.
2. Prosecution has examined 14 witnesses and has proved a number of documents including the manuscript of the poem concerned. Accused, who has pleaded not guilty and claims to be tried called 5 defense witnesses.
3. That the accused is the author of impugned poem and is connected with the management of the periodical named Hungry Generation are admitted by the Police Witness One Samir Kumar Basu, Police Witness Two Shakti Chattopadhyay, Police Witness Three Pabitra Ballabh, Police Witness Four Utpalkumar Basu prove that accused is connected with and pioneer of the periodical Hungry Generation. Police Witness Eight also testifies to the fact that accused is a founder member of the literary circle who published the said periodical and contributing articles to it. The evidence on record establishes that accused and others used to meet at the Coffee House, Albert Hall, College Street, Calcutta, where evidently they used to exchange ideas and circulate and distribute the aforesaid journal Hungry Generation. At this meeting place some of the prosecution witnesses saw and read the impugned poem under the caption 'Prachanda Baidyutik Chhutar' ( Stark Electric Jesus ) composed by the accused and published in the periodical Hungry Generation.
S.M.Barori, Police Witness Nine, Sub Inspector of Police, Detective Department, proves the seizure of the manuscript of the offending poem and a printed copy of the aforesaid periodical containing the impugned poem from the possession of the accused at Patna on 4th September 1964. The Seizure List Exhibit One and Police Witness Eleven and Police Witness Twelve -- two search witnesses corroborate Police witness Nine.
Thus it is established beyond a shadow of doubt that the accused is not only maker and producer of the impugned piece, but was found to be in possession of the manuscript and the printed copy. Police witness Thirteen, the handwriting expert proves that the manuscript is by the pen and hand of the accused. Authorship is thus proved. And Barori, Police witness number Nine has also proved, corroborated as he is by Police Witness Nine and 12 ( search witnesses ) that accused was found to be in possession of the impugned publication . So one of the ingredients of Section 292 of Indian Penal Code, namely of circulation, distribution -- making the possession present.
4. Upon the next important ingredient, namely, if the particular piece is obscene or not, we have the divergent opinion of the witnesses. Police witness One calls it obscene, equating vulgarity with obscenity. Police Witness Shakti Chattopadhyay himself a writer and one of the pioneers of Hungry Generation, does not go beyond saying that he does not like the offending poem and that it does not appeal to his aesthetic senses. To Police Witness Three Pabitra Ballabh, an MA in political Science, and a school teacher, it is unreadable, vulgar and not a piece of poetry at all. reaction of police Witness Utpalkumar Basu -- another writer, is that the offending poem is an experiment piece of writing carrying a sense of disgust. He ventures his opinion that it reveals a tense and excited mind. Police Witness Seven Pashupati Chatterjee alias Sandipan Chattopadhyay, an Assistant Inspector of Corporation of Calcutta, shares the same opinion with the Police Witness Number Four and calls it an experimental piece of writing, adding that such experiment is necessary in the interest of growth and richness of literarture . On reading of the poem he feels a depraving effect. Police Witness Number Five Subhas Ghosh a writer and Police witness number Eight Saileswar Ghosh a school teacher both praise the offending poem for its high literary value and both certify its aesthetic appeal. Defence witness One Satrajit Dutta, a teacher of Applied Psychology, in post graduate classes calls it also a kind of experimental writing but not, as whole, obscene, since it does not inflame his passion nor brings about in him any psychosomatic changes. He gives us for whatever its worth, the benefit of his opinion as teacher of psychology that a normal man by reading the offending poem would not react with any abnormal sensation, but to a common man not used to this kind of reading, he concedes reaction would be some depraving effect. Defense witness Number Three Jyotirmoy Dutta, who is a film critique and reviewer at the newspaper 'The Statesman' does not call it , after reading the whole of the offending piece obscene and finds in it not a single obscene word. Defense witness Sunil Gangopadhyay -- a short story writer, novelist and poet, similarly does not call it an obscene poem. Defense witness Number Five, Tarun Sanyal, who is a lecturer of Economics, an essayist, a text book writer and poet, shares the same view with Defense witness Number Four.
5. I have discussed at some length, the view of the witnesses for and against the offending poem. But as the Supreme Court in R.D.Udeshi Vs the State of Maharashtra 1965 ( 2) Cr L.J. observed : " The question does not altogether depend on oral evidence because the offending poem as a whole must be judged by the Court in the light of Section 292 Indian Penal Code and the provision of our constitution". Defense witness One says that the offending poem will tend to deprave common man with not a moral mind. But the effect produced on an ordinary member of the Society or a particular class of readers for which it is meant is a relevant factor. A man of wide culture or rare character or a person of depraved mentality can not be regarded as standard readers of such a piece, nor men of exceptional sensibility and men without any sensibility whatsoever. It is common knowledge that young men and women students and others with impressionable mind throng around the Coffee House and it is in evidence that at the Coffee House the offending publication in presence of the accused was freely distributed and widely discussed. So the relevant consideration is what effect it would reasonably be expected to produce on ordinary readers for whom it is meant. And as circulation has been proved and the making of the offending poem as well as possession of the publication by the accused have been undeniably established, there can be no question of lack of mens rea. In this connection it is worthwhile to refer to the negative evidence of Police witness Six T.N.Sen of 48A Shankar Haldar Lane, the police shown to be place of publication of the offending periodical, and the positive evidence of Defense witness Number Two A.K Haldar of Shankar Haldar Lane, who testifies to the fact that he permitted the accused to make use of his address in connection with the publication of the offending journal.
6. Now the question what is or is not obscene is an age-old controversy and the task of distinguishing between what is artistic and obscene has been rendered none too easier nor only because Indian Penal Code does not define the word "obscene" but also because a piece of Art or literature has not uniform appeal, is individualistic in its appeal which varies from man to man, and in the same object the insensitive sees only obscenity and the intellectual finds a message of beauty and art but nothing gross. But happily there has evolved through the ages certain norms which afford as valuable guide to the vexed question. In the context of changed approach to the question of sex a writing is now generally not regarded as obscene merely because it treats with sex and nudity. Applying however the test of obscenity as laid down by Cockburn C. J. in Hickin's case, their Lordships of our Supreme Court in R.D.Udeshi Vs State of Maharashtra ( 1964 cr. L.J.8) have observed that "Treating with sex in a manner offensive to public decency and morality ( and these are the words of our fundamental law ) judged by our National Standards and considered likely to ponder to lascivious, prurient and sexually precocious minds, must determine the result. We need not attempt to bowdlerize all literature and thus rob speech and expression of freedom. A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way."
It is further observed : ""in our opinion, the test to adopt in our country ( regard being had to our community 'mores' ) is that obscenity without a preponderating social purpose or profit can not have the constitutional protection of free speech and expression, and obscenity in treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc are matters for consideration in each particular case."
Applying the test to the offending poem and realizing it as a whole, it appears to be per se obscene. In bizarre style it starts with restless impatience of a sensuous man for a woman obsessed with uncontrollable urge for sexual intercourse followed by a description of vagina, uterus, clitoris, seminal fluid, and other parts of the female body and organ, beasting of the man's innate impulse and conscious skill as to how to enjoy a woman, blaspheming God and profaning parents accusing them of homosexuality and maste5rbation, debasing all that is noble and beautiful in human love and relationship. It is a piece of self-analysis and eroticism in autobiographical or confessional vein when the poet engages himself in a mercilessly obnoxious and revolting self-denigration and reportage of sexual vulgarity to a degree of perversion and morbidity far exceeding the customary and permissible limits of condor in description and representation. It is patently offensive to what is called contemporary community standards. It's predominant appeal to an average man considered as a whole is to prurient interest, in a shameful or morbid interest in nudity, sex and excretion. Considering the dominant theme it is dirt for dirt's sake, or, what is commonly called, hard core pornography suggesting to the minds of those in whose hands it may fall stinking wearisome and suffocating thoughts of a most impure and libidinous character and thus tending to deprave and corrupt them without any rendering social or artistic value and importance. By no stretch of imagination can it be called, what has been argued, an artistic piece of erotic realism opening up new dimension to contemporary Bengali literature or a kind of experimental piece of writing, but appears to be a report of a repressed or a most pervert mind who is obsessed with sex in all its nakedness and thrives on, or revel, in utter vulgarity and profanity preoccupied with morbid eroticism and promiscuity in all its naked ugliness and uncontrolled passion for opposite sex. It transgresses public decency and morality substantially, rather at public decency and morality by its highly morbid erotic effect unredeemed by anything literary or artistic. It is an affront to current community standards or decency and morality. The writing viewed separately and as a whole treats with sex, that great motivating force of human life, in a manner that surpasses the permissible limits judged from our community standards, and as there is no redeeming social value or gain to society which can be said to preponderate, I must hold that the writing has failed to satisfy the time honoured test. Therefore it has got to be stamped out since it comes within the purview of Section 292 Indian Penal Code. Accused is accordingly found guilty of the offence punishable under Section 292 of Indian Penal Code
A.K.Mitra
Presidency Magistrate
9th Court, Calcutta
28th December 1965
