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4. In a case of this nature the question that arises for consideration is whether the publication is obscene Under Section 292-A, IPC or whether it contains indecent representation of women as coming within the purview of the Act. These issues are to be decided by the court. No oral evidence is necessary to decide whether the publication offends the law or not. The question whether the magazine, 'Love', printed and published by the petitioner is obscene or not is not to depend on the oral evidence. Nor is the publication to be compared with other or similar periodicals. It is the duty of the court to ascertain whether the magazine offends the provisions of Section 292-A or those in the Act. The verdict as to whether the book or article or photographs printed therein, considered as a whole, panders to the prurient and is obscene must be judged by the Court (Vide Kakodkar, C. K. v. State of Maharashtra, AIR 1970 SC 1390 : (1970 Cri LJ 1273). I think it is the duty of the court to examine the magazine and see whether it offends Section 292-A, IPC or any of the provisions in the Act. For considering that question, it is not necessary for this court to examine or compare the impugned publication with reference to any other magazines, books or story. The issue to be decided does not depend on oral evidence. The court is to adjudicate on it, on the basis of well established notions of decency and morality. This being the legal position, on such examination if this court comes to the conclusion that the publication does not offend any of the provisions mentioned earlier, the complaint is to be quashed, for the prosecution if allowed to proceed with will amount to a waste of judicial time and an abuse of process of court. The High Court's power under Section 482 of the Code in dealing with the complaints of such nature was considered by the Supreme Court in Madhavrao v. Sambhajirao AIR 1988 SC 709 : (1988 Cri LJ 853). Their Lordships observed (para 7):

"The Court must, therefore, apply itself to consider each work at a time. This should not, of course, be done in the spirit of the lady who charged Dr. Johnson with putting improper words in his Dictionary and was rebuked by him. "Madam, you must have been looking for them". To adopt such an attitude towards Art and Literature would make the Courts a Board of Censors. An overall view of the obscene matter in setting of the whole work would, of course, be necessary, but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall. In this connection the interests of our contemporary society and particularly the influence of the book etc. On it must not be overlooked. A number of considerations may here enter which it is not necessary to enumerate, but we must draw attention to one fact. Today our National and Regional Languages are strengthening themselves by new literary standards after a deadening period under the impact of English. Emulation by our writers of an obscene book under the aegis of this Court's determination is likely to pervert our entire literature because obscenity pays and true art finds little popular support. Only an obscurant will deny the need for such caution. This consideration marches with all law and precedent on this subject and so considered we can only say that where obscenity and art are mixed, art must be so preponderating as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. In other words, treating with sex in a manner offensive to public decency and morality (and these are the words of our fundamental Law), judged of by our National standards and considered likely to pander to lascivious, prurient or 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."

8. There is difference between obscenity, and pornography. The latter denotes writings, pictures etc. intended to arouse sexual desire. While obscenity includes writings etc. not intended to do so but which have that tendency. Both offend public decency and morals. Pornography is obscenity in a more aggravated form.

9. Among all the creatures of nature human beings are the most refined ones. Male species of all types of animals and birds are considered more beautiful than their respective females. But in literature, ladies are described as beautiful. A pretty damsel is beautiful to behold. A thing of beauty is a joy for ever. Are the bodies of females obscene? A brazenly nude body may evoke a feeling of disgust and revultion. If nudity is properly covered, human body whether of male or female cannot be regarded as objects of obscenity without something more. That something more is to be found in the facial expression or pose in which it is photographed. The photograph of a female body, cannot be considered as obscene or as an indecent representation of woman, if the above mentioned something more is absent.