What is obscenity? Distinguish between obscenity and vulgarity. What offence, if any, is made out.

Question: What is ‘obscenity’? Distinguish between ‘obscenity’ and ‘vulgarity’. What offence, if any, is made out in the following cases:–

• Atul and Monika were found kissing and embracing each other in a Maruti Van, parked at 40 paces from a police post located at a lonely place.

• During the search of the Residential house of the accused of the offence under Sections 120-B, 420, 467, 468 and 471 IPC. One videocassette containing a pornographic scene is recovered from an almirah, the key of which was supplied by the accused. (D.J.S. 1990)

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Answer

The word ‘obscene’ is not defined in the IPC. Framers of the Code, plausibly realising that ‘obscenity’ depends upon the standards of morals of the contemporary society, were desisted from confining it in precise terms. The idea relating to immorality and indecency may change from time to time, and place to place.

In the absence of a definition of obscenity in the IPC, the task of defining it, thus, has been done by courts. The apex court has also evolved a test of obscenity.

The word ‘obscene, in common parlance, denotes the thing that is offensive to modesty or decency, lewd, filthy and repulsive. The meaning of ‘obscene, according to the Oxford New English Dictionary is, ‘offensive to modesty or decency, expressing or suggesting unchaste and lustful ideas, impure, indecent and lewd’. The term gives emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences. However, it would be wrong to perceive nudity and sex as essentially obscene, indecent or immoral.

Sex and obscenity are not always synonymous. Even a picture of a woman in the nude is not per se obscene as held in Sreen Saksena v. Emperor AIR 1940 Cal 290. It becomes obscene only when it excites impure thoughts in the mind of ordinary persons of normal temperament, surrounding circumstances, in which such expressions or pictures are made, therefore, become relevant.

Similarly, vulgar writing is not necessarily obscene. It differs from obscenity. A book or other literature on sexology that intends to give advice to married people cannot be held obscene even though it refers to sex and carries sexual pictures.

In Samaresh Bose v. Amal Mitra [AIR 1986 SC 967] the Supreme Court, holding a novel intended to expose the evils prevailing in society with emphasis on sex and using slang and unconventional language is not obscene, observed:

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 is the tendency to deprave and corrupt those whose minds are open to such immoral observe…

A novel…which…intends to expose the evils and ills prevailing in the society in various spheres cannot be said to be obscene merely because slang and unconventional language has been used in the book, in which there has been an emphasis on sex and description of female bodies and there are narrations of feelings, thoughts and actions in vulgar language. Some portions of the book may appear to be vulgar and readers of cultured and refined taste may feel shocked and disgusted.

Equally, in some portions, the words used and descriptions are given may not appear to be in proper taste. In some, there may have been an exhibition of bad taste leaving it to the readers of experience and maturity to draw the necessary inference, but certainly not sufficient to bring home to the adolescents any suggestion which is depraving or lascivious.

• Atul and Monika were found kissing and embracing each other in a Maruti Van, parked at 40 paces from a police post located at a lonely place.

Section 294 makes Obscene acts and songs punishable. It States that, whoever, to the annoyance of others—

(a) does any obscene act in any public place, or

(b) sings recites or utters any obscene songs, ballad or words, in or near any public place,

shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

Section 294 intends to promote public decency and morality. It encompasses the offence called in common parlance ‘eve teasing’. In order to secure a conviction under s 294 the prosecution has to prove two particulars, namely:

1. the accused has done an obscene act
2. in any public place
3. or has sung, recited or uttered any obscene songs or words in or near any public place; and
4. has so caused annoyance to others.

Scope of Section 294 was discussed in Atul Jain v. State of Haryana, 1989 (1) CLR 115, and the court observed:

“As far as the scope of section 294, IPC is concerned, it will not cover the allegations in the FIR. There is no allegation that they committed any obscene act in any public place to the annoyance of others as, according to FIR nobody is states to be present around except the police officials and even otherwise kissing of two young people, without any intention of annoying anyone will not be obscene.”

In the present case, when Atul and Monika were found kissing and embracing each other, there was no person nearby who could have felt annoyed by the said act. Thus, no offence is disclosed in this case.

1. During the search of the Residential house of the accused of an offence under Sections 120-B, 420, 467, 468 and 471 IPC. One videocassette containing a pornographic scene is recovered from an almirah, the key of which was supplied by the accused. (D.J.S. 1990)

Section 292, IPC which deals with the Sale, etc., of obscene books, etc, its clause 2(a) provides that:

(2) Whoever—(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.

Reading of Section 292, IPC makes it clear that mere possession of any obscene material is not made an offence under the said section. It has to be alleged and proved that the person who is in possession of any obscene material is having the same for purposes of sale, hire, distribution, public exhibition or circulation.

In this case, there is only one cassette containing the obscene material which was found at the residential premises of the petitioner and thus, no inference can be drawn from this fact alone that the petitioner was having in his possession the aforesaid video cassette for any said purposes enumerated above. Thus, no offence under section 292, IPC has been made out.

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