The essence of Section 292 of the I.P. Code is to be understood in the context of the intention of the Legislature. The legal provision does not cover each and every act which can be termed as "immoral" or "vulgar" or "offending to the sense of decency". The obscenity has to be in the context of Sub-clause (1) of Section 292 of the I.P. Code. A plain reading of Sub-clause (1) of Section 292 of the I.P. Code would make it manifest that a writing will have to be termed as "obscene" if it is lascivious or appeals to the prurient interest or if its effect is such that taken as a whole, it tends 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. The obscenity does not lie in letters of the words. The writing, for the purpose of branding it as "obscene" must have tendency to deprave and corrupt persons who are likely to read the same. In the present case, it is but natural to ask oneself as to who was the reader of the letter ?
1. This Revision Application is heard finally by consent and is being disposed of at the stage of admission.
2. The long and short of the prosecution case is that the petitioner, who is husband of complainant PW Sindhu, threatened her of dire consequences due to her refusal to give divorce to him. The complainant is gainfully employed as a staff nurse in Government Medical College and Hospital, Aurangabad. Petitioner is an advocate. They married somewhere in 1987-1988. The marriage was unhappy affair for both of them. The spouses fell apart somewhere in 2000. The marriage was on rocks. The wife is admittedly residing separately since about 2000. The petitioner desired divorce from her, but she refused to accede to his demand. The petitioner was infuriated due to refusal of the wife to give divorce.
3. The petitioner sent a letter dated 8th December, 1999 to the Chief Matron under whom the wife (PW Sindhu) was working. In the said letter, he imputed unchastity to PW Sindhu, alleging her extramarital sexual relations with others and called her a prostitute. The letter was written in a very crude and vulgar language. The Chief Matron thereafter called PW Sindhu in the office and gave her the letter for reading. Both of them were shocked on reading of the letter. Then, PW Sindhu recalled the threats given by the petitioner and identified handwriting of the letter as that of the petitioner. She, however, did not take immediate action. The petitioner subsequently wrote four similar letters containing allegations of extramarital relations of PW Sindhu with the workers of Bajaj Company and others. The letters in slang language, alleged that she was indulging in sexual escapades with variety of persons including the workers of Bajaj Company. Those letters prompted PW Sindhu to lodge a report at City Chowk Police Station, Aurangabad. The police carried out certain investigation and chargesheeted the petitioner for offences punishable under Section 292 and 500 of the I.P. Code.
4. At trial, PW Sindhu (complainant) alongwith other staff nurse and Matron were examined. The letters were sent to handwriting expert for opinion. The fact that the letters were authored by the petitioner was held as proved. The learned Judicial Magistrate (First Class) came to the conclusion that text of the letters is no short of obscenity and, therefore, held the petitioner guilty for commission of offence punishable under Section 292 of the I.P. Code. The learned Judicial Magistrate further came to the conclusion that the letters addressed to the Chief Matron are per se defamatory and, therefore, the petitioner was guilty for offence punishable under Section 500 of the I.P. Code. He was sentenced to suffer rigorous imprisonment for six (6) months and to pay a fine of Rs. 2000/- for offence punishable under Section 292 of the I.P. Code and to suffer simple imprisonment for three (3) months and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for fifteen (15) days for commission of offence punishable under Section 500 of the I.P. Code. Both the substantive sentences were directed to run concurrently. Aggrieved thereby, the petitioner preferred Criminal Appeal No. 74/2005, which came to be dismissed, confirming the order of conviction and sentence rendered by the learned Judicial Magistrate (First Class)
5. Mr. Damle V.N., learned advocate, for the petitioner, strenuously argued that the acts of the petitioner would not come within the ambit of Section 292 of the I.P. Code. He would further submit that the courts below did not consider distinction between concept of "vulgarity" and "obscenity". He would submit that the letters written by the petitioner were, ofcourse, crude expressions out of his frustration, but would not amount to an offence punishable under either of the provisions of the I.P. Code. He would submit that the petitioner was hurt due to obstinate attitude of the wife and was rather prompted to take such recourse which ordinarily cannot be justified on moral grounds. He would submit that lack of morality by itself is not punishable within the ambit of Section 292 of the I.P. Code. He further would invite my attention to Explanation (4) appended to Section 499 of the I.P. Code and would canvas that there was no publication of the letters nor there was intention to cause loss of reputation to the complainant in the esteem of plural members known to her. Hence, Mr. Damle urged to allow the revision application. Per contra, learned A.P.P. Mr. D.R. Adhav, supports the impugned judgements.
6. At the threshold, it may be mentioned that authorship of the letters is duly proved and the concurrent findings of both the courts on this score need not be disturbed. Nor such finding is challenged before me. So, clinching question is as to whether the letters sent by the petitioner would amount to obscenity and/or defamation as enumerated in Section 292 and/or Section 499 of the I.P. Code. The letters in question are not signed by the petitioner. They were sent anonymously. The letters in question were addressed to the Chief Matron of the Government Medical College and Hospital, Aurangabad, locally called "Ghati Hospital". The language of the letters show that the petitioner described extramarital relations of his wife - PW Sindhu with various persons including workers of Bajaj Company in morbid and vulgar manner. For example, he described that she regularly gets fucked from such workers in every night.
7. The essence of Section 292 of the I.P. Code is to be understood in the context of the intention of the Legislature. The legal provision does not cover each and every act which can be termed as "immoral" or "vulgar" or "offending to the sense of decency". The obscenity has to be in the context of Sub-clause (1) of Section 292 of the I.P. Code. A plain reading of Sub-clause (1) of Section 292 of the I.P. Code would make it manifest that a writing will have to be termed as "obscene" if it is lascivious or appeals to the prurient interest or if its effect is such that taken as a whole, it tends 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. The obscenity does not lie in letters of the words. The writing, for the purpose of branding it as "obscene" must have tendency to deprave and corrupt persons who are likely to read the same. In the present case, it is but natural to ask oneself as to who was the reader of the letter ?
The reader of the letter was admittedly the Chief Matron of the hospital. She does not say that she was depraved and was corrupted in her ideas about sexuality on reading the letters. As a matter of fact, nudity is the order of the day in the context of her profession as auxilliary midwife. The Chief Matron was in no way likely to be depraved on reading of such writing of the letters. The letters were not for anyone else to read. The Chief Matron could have simply thrown the letters in the dustbin because they were worth such treatment. There was no reason for the Chief Matron to show the letters to the complainant -PW Sindhu or any other member of the staff.
8. There cannot be any doubt about the fact that PW Sindhu must have been disturbed on reading of such letters. The letters, however, do not tend to deprave any gullible reader and the intention is not to cause sexual arousement of the reader.
9. The word "obscenity" has been explained in Nowitts' Dictionary of English Law as follows:
An article is deemed to be obscene of its effect, or where the article comprises two or more distinct items, the effect of any one of its items if taken as a whole, is to tend to deprave and corrupt persons, who are likely having regard to all the relevant circumstances to read, to see or hear matters contained or embodied in it.
10. It is abundantly clear that "obscenity" and "depravity" are not confined to sex. The law on the subject "obscenity" is well settled by catena of judgements of the Apex Court. The writing must be such that if Hicklin test is applied, then it could be said to be "obscene". It is well settled that "obscenity" depends on the class of readers, the catchment area of the age group of the readers for whom such material is provided and the possible mental impact thereof. It need not be reiterated that reader of the letters in question was not a gullible novice in the present case. She is well experienced Chief Matron, used to rough and tough life with daily experience of nudity, death and all oddities of the life. Obviously, she could not be depraved by such writings of the letters though she could have entertained some prejudiced ideas about PW Sindhu.
11. According to new Standard Dictionary, "obscene" means offensive to chastity, delicacy or decency. According to Black's Law Dictionary, "obscenity" means character or quality of being obscene, conduct, tending to corrupt the public merely by its indecency or lawness. According to Webster's New International Dictionary, "obscene" means disgusting to the senses, usually because of some filthy grotesque of unnatural quality, grossly repugnant to the generally accepted notions of what is appropriate.
12. Mr. Damle seeks to rely on certain observations in "Samaresh Bose and Anr. v. Amal Mitra and Anr. ". The Apex Court
observed that there is distinction between "vulgarity" and "obscenity". It is observed that vulgar writing is not necessarily obscene. The relevant observations may be usefully quoted as follows:
The mere fact that the various affairs and episodes with emphasis on sex have been narrated in slang and vulgar language may shock a reader who may feel disgusted by the book, does not resolve the question of obscenity. It has to be remembered that the author has chosen to use such kind of words and language in expressing the feelings, thoughts and actions of Sukhen as men like Sukhen could indulge in to make the whole thing realistic. It appears that the vulgar and slang language used have greatly influenced the decision of the Chief Presidency Magistrate and also of the learned Judge of the High Court. The observations made by them and recorded earlier go to indicate that in their thinking there has been a kind of confusion between vulgarity and obscenity. A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral observe that characters like Sukhen.
13. The text of the letters which are extensively reproduced in the impugned judgements would indicate that the petitioner had lost balance of mind while degrading his wife to the level of a prostitute. His hidden annoyance at the bottom of the letters is the reason which prompted him to write such vulgar letters. However, these letters do not tend to deprave the reader like the Chief Matron to get influenced and get her corrupted as regards morals. In this view of the matter, the conviction of the petitioner for offence punishable under Section 292 of the I.P. Code is unsustainable. The impugned judgements are liable to be interfered with in as-much-as those are rendered without considering the legal position in proper perspective.
14. So far as offence of defamation is concerned, there must be publication of imputation intending to harm reputation of the person who would feel defamated. The person, about whom such publication is made, must prove that in estimation of others, his moral or intellectual character is lowered down as a result of such false imputations. In the present case, the anonymous letters were in the nature of complaints made by the petitioner to the higher authority. He warned, in one of the letters, that other staff nurses are likely to resort to similar immoral acts if the immoral activities of PW Sindhu are not curbed. The letters were not published and circulated by the petitioner to others except and save the Chief Matron. She made it known to others. For such act of the Chief Matron, the petitioner cannot be held liable. He did not request her to circulate the letter to the staff nurses and to show it to PW Sindhu. For the purpose of offence of defamation punishable under Section 499 of the I.P. Code, there must be publication of false imputation. The publication must cause ill-effect of lowering down the person, about whom such writing is published, in the esteem of others. There appears no such evidence tendered by the Chief Matron and other witnesses. Under these circumstances, the conviction for offence punishable under Section 500 of the I.P. Code is also unsustainable and will have to be set aside.
15. Before parting with this matter, I must deprecate conduct of the petitioner. He is an advocate. The degradation of the standards of the profession is to be viewed seriously. The petitioner cannot have two standards of behaviour, one inside and one outside the Court. His manner of writing such vulgar letters to the wife or to the Chief Matron may be viewed seriously. The Bar Council may take appropriate action in this context.
16. In the result, the Criminal Revision Application is allowed. The impugned judgements are set aside. The petitioner is acquitted of the offences punishable under Section 292 and 500 of the I.P. Code. He shall be set free immediately, if not required in any other case. The fine amount, if deposited, shall be refunded to him.
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The reader of the letter was admittedly the Chief Matron of the hospital. She does not say that she was depraved and was corrupted in her ideas about sexuality on reading the letters. As a matter of fact, nudity is the order of the day in the context of her profession as auxilliary midwife. The Chief Matron was in no way likely to be depraved on reading of such writing of the letters. The letters were not for anyone else to read. The Chief Matron could have simply thrown the letters in the dustbin because they were worth such treatment. There was no reason for the Chief Matron to show the letters to the complainant -PW Sindhu or any other member of the staff.
8. There cannot be any doubt about the fact that PW Sindhu must have been disturbed on reading of such letters. The letters, however, do not tend to deprave any gullible reader and the intention is not to cause sexual arousement of the reader.
It is well settled that "obscenity" depends on the class of readers, the catchment area of the age group of the readers for whom such material is provided and the possible mental impact thereof. It need not be reiterated that reader of the letters in question was not a gullible novice in the present case. She is well experienced Chief Matron, used to rough and tough life with daily experience of nudity, death and all oddities of the life. Obviously, she could not be depraved by such writings of the letters though she could have entertained some prejudiced ideas about PW Sindhu.
Bombay High Court
Sopan S/O Vithal Shinde vs The State Of Maharashtra on 27 February, 2008
Bench: V Kingaonkar
1. This Revision Application is heard finally by consent and is being disposed of at the stage of admission.
2. The long and short of the prosecution case is that the petitioner, who is husband of complainant PW Sindhu, threatened her of dire consequences due to her refusal to give divorce to him. The complainant is gainfully employed as a staff nurse in Government Medical College and Hospital, Aurangabad. Petitioner is an advocate. They married somewhere in 1987-1988. The marriage was unhappy affair for both of them. The spouses fell apart somewhere in 2000. The marriage was on rocks. The wife is admittedly residing separately since about 2000. The petitioner desired divorce from her, but she refused to accede to his demand. The petitioner was infuriated due to refusal of the wife to give divorce.
3. The petitioner sent a letter dated 8th December, 1999 to the Chief Matron under whom the wife (PW Sindhu) was working. In the said letter, he imputed unchastity to PW Sindhu, alleging her extramarital sexual relations with others and called her a prostitute. The letter was written in a very crude and vulgar language. The Chief Matron thereafter called PW Sindhu in the office and gave her the letter for reading. Both of them were shocked on reading of the letter. Then, PW Sindhu recalled the threats given by the petitioner and identified handwriting of the letter as that of the petitioner. She, however, did not take immediate action. The petitioner subsequently wrote four similar letters containing allegations of extramarital relations of PW Sindhu with the workers of Bajaj Company and others. The letters in slang language, alleged that she was indulging in sexual escapades with variety of persons including the workers of Bajaj Company. Those letters prompted PW Sindhu to lodge a report at City Chowk Police Station, Aurangabad. The police carried out certain investigation and chargesheeted the petitioner for offences punishable under Section 292 and 500 of the I.P. Code.
4. At trial, PW Sindhu (complainant) alongwith other staff nurse and Matron were examined. The letters were sent to handwriting expert for opinion. The fact that the letters were authored by the petitioner was held as proved. The learned Judicial Magistrate (First Class) came to the conclusion that text of the letters is no short of obscenity and, therefore, held the petitioner guilty for commission of offence punishable under Section 292 of the I.P. Code. The learned Judicial Magistrate further came to the conclusion that the letters addressed to the Chief Matron are per se defamatory and, therefore, the petitioner was guilty for offence punishable under Section 500 of the I.P. Code. He was sentenced to suffer rigorous imprisonment for six (6) months and to pay a fine of Rs. 2000/- for offence punishable under Section 292 of the I.P. Code and to suffer simple imprisonment for three (3) months and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for fifteen (15) days for commission of offence punishable under Section 500 of the I.P. Code. Both the substantive sentences were directed to run concurrently. Aggrieved thereby, the petitioner preferred Criminal Appeal No. 74/2005, which came to be dismissed, confirming the order of conviction and sentence rendered by the learned Judicial Magistrate (First Class)
5. Mr. Damle V.N., learned advocate, for the petitioner, strenuously argued that the acts of the petitioner would not come within the ambit of Section 292 of the I.P. Code. He would further submit that the courts below did not consider distinction between concept of "vulgarity" and "obscenity". He would submit that the letters written by the petitioner were, ofcourse, crude expressions out of his frustration, but would not amount to an offence punishable under either of the provisions of the I.P. Code. He would submit that the petitioner was hurt due to obstinate attitude of the wife and was rather prompted to take such recourse which ordinarily cannot be justified on moral grounds. He would submit that lack of morality by itself is not punishable within the ambit of Section 292 of the I.P. Code. He further would invite my attention to Explanation (4) appended to Section 499 of the I.P. Code and would canvas that there was no publication of the letters nor there was intention to cause loss of reputation to the complainant in the esteem of plural members known to her. Hence, Mr. Damle urged to allow the revision application. Per contra, learned A.P.P. Mr. D.R. Adhav, supports the impugned judgements.
6. At the threshold, it may be mentioned that authorship of the letters is duly proved and the concurrent findings of both the courts on this score need not be disturbed. Nor such finding is challenged before me. So, clinching question is as to whether the letters sent by the petitioner would amount to obscenity and/or defamation as enumerated in Section 292 and/or Section 499 of the I.P. Code. The letters in question are not signed by the petitioner. They were sent anonymously. The letters in question were addressed to the Chief Matron of the Government Medical College and Hospital, Aurangabad, locally called "Ghati Hospital". The language of the letters show that the petitioner described extramarital relations of his wife - PW Sindhu with various persons including workers of Bajaj Company in morbid and vulgar manner. For example, he described that she regularly gets fucked from such workers in every night.
7. The essence of Section 292 of the I.P. Code is to be understood in the context of the intention of the Legislature. The legal provision does not cover each and every act which can be termed as "immoral" or "vulgar" or "offending to the sense of decency". The obscenity has to be in the context of Sub-clause (1) of Section 292 of the I.P. Code. A plain reading of Sub-clause (1) of Section 292 of the I.P. Code would make it manifest that a writing will have to be termed as "obscene" if it is lascivious or appeals to the prurient interest or if its effect is such that taken as a whole, it tends 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. The obscenity does not lie in letters of the words. The writing, for the purpose of branding it as "obscene" must have tendency to deprave and corrupt persons who are likely to read the same. In the present case, it is but natural to ask oneself as to who was the reader of the letter ?
The reader of the letter was admittedly the Chief Matron of the hospital. She does not say that she was depraved and was corrupted in her ideas about sexuality on reading the letters. As a matter of fact, nudity is the order of the day in the context of her profession as auxilliary midwife. The Chief Matron was in no way likely to be depraved on reading of such writing of the letters. The letters were not for anyone else to read. The Chief Matron could have simply thrown the letters in the dustbin because they were worth such treatment. There was no reason for the Chief Matron to show the letters to the complainant -PW Sindhu or any other member of the staff.
8. There cannot be any doubt about the fact that PW Sindhu must have been disturbed on reading of such letters. The letters, however, do not tend to deprave any gullible reader and the intention is not to cause sexual arousement of the reader.
9. The word "obscenity" has been explained in Nowitts' Dictionary of English Law as follows:
An article is deemed to be obscene of its effect, or where the article comprises two or more distinct items, the effect of any one of its items if taken as a whole, is to tend to deprave and corrupt persons, who are likely having regard to all the relevant circumstances to read, to see or hear matters contained or embodied in it.
10. It is abundantly clear that "obscenity" and "depravity" are not confined to sex. The law on the subject "obscenity" is well settled by catena of judgements of the Apex Court. The writing must be such that if Hicklin test is applied, then it could be said to be "obscene". It is well settled that "obscenity" depends on the class of readers, the catchment area of the age group of the readers for whom such material is provided and the possible mental impact thereof. It need not be reiterated that reader of the letters in question was not a gullible novice in the present case. She is well experienced Chief Matron, used to rough and tough life with daily experience of nudity, death and all oddities of the life. Obviously, she could not be depraved by such writings of the letters though she could have entertained some prejudiced ideas about PW Sindhu.
11. According to new Standard Dictionary, "obscene" means offensive to chastity, delicacy or decency. According to Black's Law Dictionary, "obscenity" means character or quality of being obscene, conduct, tending to corrupt the public merely by its indecency or lawness. According to Webster's New International Dictionary, "obscene" means disgusting to the senses, usually because of some filthy grotesque of unnatural quality, grossly repugnant to the generally accepted notions of what is appropriate.
12. Mr. Damle seeks to rely on certain observations in "Samaresh Bose and Anr. v. Amal Mitra and Anr. ". The Apex Court
observed that there is distinction between "vulgarity" and "obscenity". It is observed that vulgar writing is not necessarily obscene. The relevant observations may be usefully quoted as follows:
The mere fact that the various affairs and episodes with emphasis on sex have been narrated in slang and vulgar language may shock a reader who may feel disgusted by the book, does not resolve the question of obscenity. It has to be remembered that the author has chosen to use such kind of words and language in expressing the feelings, thoughts and actions of Sukhen as men like Sukhen could indulge in to make the whole thing realistic. It appears that the vulgar and slang language used have greatly influenced the decision of the Chief Presidency Magistrate and also of the learned Judge of the High Court. The observations made by them and recorded earlier go to indicate that in their thinking there has been a kind of confusion between vulgarity and obscenity. A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral observe that characters like Sukhen.
13. The text of the letters which are extensively reproduced in the impugned judgements would indicate that the petitioner had lost balance of mind while degrading his wife to the level of a prostitute. His hidden annoyance at the bottom of the letters is the reason which prompted him to write such vulgar letters. However, these letters do not tend to deprave the reader like the Chief Matron to get influenced and get her corrupted as regards morals. In this view of the matter, the conviction of the petitioner for offence punishable under Section 292 of the I.P. Code is unsustainable. The impugned judgements are liable to be interfered with in as-much-as those are rendered without considering the legal position in proper perspective.
14. So far as offence of defamation is concerned, there must be publication of imputation intending to harm reputation of the person who would feel defamated. The person, about whom such publication is made, must prove that in estimation of others, his moral or intellectual character is lowered down as a result of such false imputations. In the present case, the anonymous letters were in the nature of complaints made by the petitioner to the higher authority. He warned, in one of the letters, that other staff nurses are likely to resort to similar immoral acts if the immoral activities of PW Sindhu are not curbed. The letters were not published and circulated by the petitioner to others except and save the Chief Matron. She made it known to others. For such act of the Chief Matron, the petitioner cannot be held liable. He did not request her to circulate the letter to the staff nurses and to show it to PW Sindhu. For the purpose of offence of defamation punishable under Section 499 of the I.P. Code, there must be publication of false imputation. The publication must cause ill-effect of lowering down the person, about whom such writing is published, in the esteem of others. There appears no such evidence tendered by the Chief Matron and other witnesses. Under these circumstances, the conviction for offence punishable under Section 500 of the I.P. Code is also unsustainable and will have to be set aside.
15. Before parting with this matter, I must deprecate conduct of the petitioner. He is an advocate. The degradation of the standards of the profession is to be viewed seriously. The petitioner cannot have two standards of behaviour, one inside and one outside the Court. His manner of writing such vulgar letters to the wife or to the Chief Matron may be viewed seriously. The Bar Council may take appropriate action in this context.
16. In the result, the Criminal Revision Application is allowed. The impugned judgements are set aside. The petitioner is acquitted of the offences punishable under Section 292 and 500 of the I.P. Code. He shall be set free immediately, if not required in any other case. The fine amount, if deposited, shall be refunded to him.
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