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Criminal Appeal No. 396 of 1953, decided on 26th Novem ber 1954.
Penal Code (XLV of 1860) Ss. 294, 509‑Obscenity Test‑Whether words not obscene in themselves would become obscene with reference to person or occasion ‑"I love you my love"---Not obscene.
The ordinary meaning of the word obscene' as used in P. P. C. is offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd.
Words charged should themselves be looked into. Person addressed or a particular time or place will not, make, them obscene if they were not such in themselves.
Words, " I love you my love", addressed to a girl on a public road when she had come out of. her College, were held not to be obsence.
The accused, however, could be charged under sec tion 509, P. P. C.
Ali Ahmad Fazil, for Appellant.
A. H. Qureshi, A. P. P, for the Crown;
‑The appellant in this case has been convicted under section 294, P. P. C. and sentenced to undergo 3 months' R. I. The prosecution story shortly put is this:
That the appellant at about 1‑30 p.m. on 29th October 1953 addressed a student of Women's College, Karachi in the following words :‑
"I love you my love."
The appellant said so on the public road when the girl had come out of her college. At the time when the appellant uttered these words the uncle of the girl Abdul Lateef was also there. Abdul Lateef caught the accused. A constable who was nearby arrested the appellant. Abdul Lateef lodged a report about the incident at the Police Station. The plea of the appellant was that he had been arrested under mistake. He pleaded that there were other people who may have remarked, as alleged by the prosecution and as they had run away, he was arrested.
The prosecution produced the girl herself, Abdul Lateef the uncle of the girl, and one Ayyub Khan. The latter two witnesses, in their statement before the learned Magistrate, had supported the girl that it was the appellant who had addressed her as " I love you my love" and no one else. The learned Magistrate believed the prosecution witnesses and held that the words " I love you my love" were obscene and that these words had annoyed the girl within the meaning of section 294 P. P. C. The learned Magistrate held these words to be obscene on the ground that they were addressed by a stranger at a public place to a girl with whom he had no introduction. The learned Magistrate remarked that "the phrase itself is innocent enough and cannot be said to be obscene." It was obscene as it was addressed to a girl at a public place.
It was‑ contended by Mr. Ali Ahmad Fazil, the learned advocate for the appellant, that the words, "I love you my love are not obscene. Mr. Qureshi, the learned advocate for the Crown, contended that the words by themselves though not obscene but the question whether these words were obscene or not, must be determined with reference to the person to whom they were addressed and the circumstances in which they were addressed. I have given my careful con sideration to the question whether these words can be said to be obscene within the meaning of section 294 P. P. C. or not, and I have come to the conclusion on that they cannot be held within the meaning of section 294 P. P. C. which runs as under :‑
"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 a term which may extend to three months, or with fine, or with both.
Now the question is, how to determine the meaning of the word "obscene". A reference to dictionaries does afford some guide to the use of a word in a statute. Lord Coleridge said in R. v. Peters ((1886) 16 Q B D 636, 641).
"I am quite aware that dictionaries are not to be taken as authoritative exponents of the meaning of words used in Acts of Parliament, but is a well‑known rule of Courts of Law that words should be taken to be used in their ordinary sense and we are therefore send for instructions to those books".
I would, therefore, refer to some dictionaries for the meaning given there of the word "obscene". A New English Diction ary" by Sir James Murray, Vol. III gives the meaning of "obscene" thus:
"(1) Offensive to the senses or to taste or refinement ; disgusting, repulsive, filthy, foul, abominable, loathsome Now some what archaic.
(2) Offensive to modesty or decency ; expressing or suggesting unchaste or lustful ideas ; impure, indecent, lewd"
The word "obscene" is given as under in Ronald Burrows' "Words and Phrases Judicially Defined" Vol. IV :‑
"Obscene.‑It is quite clear that the publishing an obscene book is an offence against the Law of the Land. It is per fectly true . . . . . that there are a great many publica tions of high repute in the literary production of this country the tendency of which is immodest, and, if you please, immoral . . . . . But it is not to be said because there are in many standard and established works objectionable passages, that therefore the law is not as alleged on the part of this prosecution namely, that obscene works are the subject matter of indictment; and I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences' and into whose hands a publication of this sort may fall. R. v. Hicklin ((1868), L R 3 Q B 360) per Cockburn, C. J., at p. 371.
Canada.‑--The words 'obscene' . . . . . was originally used to describe anything disgusting, repulsive filthy, or foul. This use of the word is now said to be somewhat archaic or poetic ; and it is ordinarily restricted to something offensive to modesty or decency or expressing or suggesting un chaste or lustful ideas or being impure, indecent, or lewd. R. v. Beaver ((1905). 9 0 L R 418) per Maclaren, J. A., at pp. 424, 425."
In "Stroud's Judicial Dictionary" Third Edition Vol. III, the meaning of the word "obscene" is given thus :‑
"Obscene.‑(1) A book or other publication is not saved from being obscene' within the Obscene Publications Act, 1857 (20 & 21 Vict., c. 83), because the professed intention of it is, not to injure public morals, but to attack the iniquity of a particular religion ; e. g., The confessional unmasked, Showing the depravity of the Romish Priesthood the iniquity of the Confessional and the question put to females in confession was 'obscene', because it glaringly detailed impure and filthy acts words and ideas; and was indiscriminatingly published to all classes of persons R. v. Hicklin (supra) See further Steele v. Brannan, (8 C P 261) See hereon Law of Libel Amendment Act, 1888 (51 & 52 Vict., c. 64) section 7 on which See R. v. Barraclough ((1906) 1 K B 201) See aid or abet. If part of a publication is obscene an order may be made for the destruction of the whole (Paget Publica tions v Watson ((1952) 1 T L R 1189).
(2) The word 'obscene' (in obscene libel in Australia) in its ordinary sense denotes today something which is indecent or disgusting (per Fullagar, J., in R. v. Close ((1948) V L R 45) ).
It would, thus, appear that the ordinary meaing of the word 'obscene' as used in P. P. C. would be in common parlance something which is offensive to modesty or decency, A or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd. This, to my mind, is a very extensive and lucid meaning of the word "obscene"
The question before me now is, as contended by the learned advocate for the Crown, whether in order to deter mine if certain songs or words are obscene or not, a reference to the place and the person to whom they were addressed, can be made or not. In my opinion, this contention has no force. It is a well accepted principle of interpretation of statutes that the words used therein should be interpreted as they are without bringing any extraneous consideration such as suggested by the learned advocate for the Crown. Whether certain song is obscene or not, the song itself has to be looked into. The mere fact that a certain person were to recite a couplet, suggestive of love, of some well known Urdu poet, in the presence of ladies, would not make it obscene within the meaning of sections 294 of P. P. C. If this conten tion was accepted, love songs in a Theatre recited in presence ladies would be declared to be obscene. The word obscene has also been used in section 294 in reference to painting and other objects. In order to apply the test laid down by Cockburn C. J., what has to be seen is the painting itself. A painting which cannot invoke immoral or impure thoughts, by itself cannot become obscene by reference to the place or the person to whom it is shown. A nude photo or painting is either obscene by reference for itself or not. It cannot become obscene, if it is not so, by reference to the place where it is exhibited or to the person to whom it is shown. In my opinion, whether certain words or songs are obscene or not, the words or songs must be looked into themselves. They cannot be so determined with reference to the time, place or the person in whose presence they were uttered.
It is not within the province of any court to attempt to give extended meaning to terms or words in order to attempt to within the penal clause of certain provisions of law. 1'rc' bring it the function of the Courts of law to give extended meaning to words in order to bring it within the provisions of section 249 to P. P. C. It is the function of the Legislature to se; section 294 section 294 P. P. C. that certain words in themselves, so amend ever innocent and pure they may be, may become obscene if uttered at a certain time, place and in presence of certain persons.
It may be that where a person were to utter such words as 'I love you' in reference to a woman intending thereby to insult her modesty or to intrude upon her privacy, it is, an offence punishable under section 509 of the Penal Code, which runs as under :‑
"Whoever, intending to insult the modesty of any woman utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard or that such gesture or object shall be seen by such woman or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
A reference to the above section would show that if a stranger were to utter such words, as are in question now, to a woman, he may be said to have intended to insult the modesty of that woman. The intention has to be judged from the conduct or the act of the person.
I would, therefore, for the reasons set forth above, set aside the conviction and the sentence passed on the accused. Under the circumstances of the present case, no useful pur pose can be served by ordering retrial, especially in view of the fact that the appellant, considering his age, has already undergone the agony of a criminal trial and the act of the appellant, though reprehensible, was foolish than anything else. I have no doubt that this trial was sufficient lesson to the appellant and he would be, in future be a good citizen.
The appellant is on bail, the surety is discharged.
A. H. Appeal accepted.
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