BEFORE THE

THE HONOURABLE SUPREME COURT OF INDIA

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1949

In The Matter ofRJ.......................................................Petitioner

Vs.
Union of India....Respondent

: ON SUBMISSION TO:
THE HONOURABLE SUPREME COURT OF INDIA

Memorial on behalf of Petitioner:

Dipanjan Roychoudhary
Roll Number 210
7th semester
Section- B

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TABLE OF CONTENTS

S. No

Topic

Page No.

ABBREVIATIONS

INDEX OF AUTHORITIES

TABLE OF CASES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES

SUMMARY OF PLEADINGS

ARGUMENTS ADVANCED

10

PRAYER

14

ABBREVIATIONS

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1. SCC

Supreme Court Cases

2. AIR

All India Reporter

3. SC

Supreme Court

4. All ER

7. US

8. vs

9. Ors.

All England Reporter

United States

versus

Others

INDEX OF AUTHORITIES

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STATUTES:

1. Indian Penal Code 1860

BOOKS CONSULTED:

1. JUSTICE GP SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 12TH

EDITION 2010, LEXIS NEXIS BUTTERWORTHS WADHWA, NAGPUR
2. KD GAUR, THE INDIAN PENAL CODE, 4TH EDITION 2009, UNIVERSAL
PUBLISHERS, NEW DELHI
3. VN SHUKLA, CONSTITUTION OF INDIA, 11TH EDITION 2008, EASTERN BOOK
COMPANY, LUCKNOW

TABLE OF CASES

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S. No

Case Name

Citation

Attorney General of Hongkong vs. Lee Kwong (1993) 3 All ER 939

Kut
Vijaya Singh vs. State of UP

AIR 1990 SC 1459

Bobby Art International v. Om Pal Singh Hoon

AIR 1996 SC 1846

Ranjit D Udeshi vs State of Maharashtra

AIR 1965 SC 881

Miller vs California

413 US 25 1973

Jenkin vs Georgia

418 US 153 1973

Tolaram vs State of Bombay AIR 1954 SC 496

AIR 1954 SC 496

State of Maharashtra vs Tapas D Neogy

(1999) 7 SCC 685

Balram Kumawat v. Union of India

(2003) 7 SCC 640

10

AIR 2005 SC 2622

Standard Chartered Bank vs. Directorate of

11

Enforcement
Swantraj vs. State of Maharashtra

AIR 1974 SC 517

12

Krishna Janardan Bhat v. Dattatraya G Hegde

AIR 2008 SC 1325

13

Samaresh Bose vs. Amal Mitra

AIR 1986 SC 967

STATEMENT OF JURISDICTION

Article 136 in The Constitution Of India 1949

136. Special leave to appeal by the Supreme Court

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(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.

STATEMENT OF FACTS

1) RJ, hereafter referred to as the petitioner is one of the ardent followers of a tantrik tradition
that requires tough saadhna, ritualistic sex with dead body, and eating of half burnt dead
human bodies.

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2) For the purpose of preserving the tradition of learning of these practices, the petitioner
documented them and produced and distributed literature with graphic details in the forms of
books free of cost in a city.

3) He was prosecuted u/s 292 IPC. The court of first instance found him guilty and thereafter
the Court of Appeal confirmed this decision of conviction.

4) Now the petitioner has approached this honourable court under a special leave petition on
the grounds that his activities are covered under the exception of the section as it is in the
interest of learning.

5) The matter stands before this honourable court

STATEMENT OF ISSUES

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Issue 1: Whether the petitioner is liable to be convicted under Section 292 of the Indian Penal
Code 1860 or not?

SUMMARY OF ARGUMENTS
Issue 1: Whether the petitioner is liable to be convicted under Section 292 of the Indian Penal
Code 1860 or not?

In the present case not only does the book by the petitioner have any content which
could be said to be for the benefit of the general public, but instead it contains
practices which are savage, necrophilic and against the very ethos of morality in every

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human society. The primary objection against the book is not because it has sexual
content, but because the object of that content is not to educate but to corrupt the

minds of the general populace.

The petitioner is not even entitled to say that in distributing the said books, he was
merely exercising his right to freedom of speech because even in the most democratic
of societies, there are restrictions on this right where it is perceived that it could lead
to the moral degradation of people in society by spreading obscenity. And the

petitioners book does just that.

There is no scope for ambiguity whatsoever. The meaning of the word obscene is to
be construed by the community standard test and regardless of the fact that the
petitioner distributed the books for free and did not profit from them per se as
required under Sub-Section 2 (c) of Section 292 IPC, it also cannot be denied that at
present his cult has a very less following and influenced by the book, more people

may join him and thus he may benefit financially too.

The fundamental object and purpose of criminal law is not only to protect and to
conserve the safety and security of primary personal rights of individuals, but also to
protect and guard public morals and public decency and to conserve the moral welfare

of the state.
The objection to the book of the petitioner is not merely because it has sexual content
but the kind of practices it promotes, notably necrophilia. The human body is
considered sacred by every society and religion across the world and while the act of
sexual intercourse is for procreation purposes, having it with a dead body amounts to
denigrate humanity itself, not mentioning to disrespect the memories of the deceased
person as well.

ARGUMENTS ADVANCED
Issue 1: Whether the petitioner is liable to be convicted under Section 292 of the Indian Penal
Code 1860 or not?

First of all it is humbly argued before this court that in deciding what are the essential
ingredients of the offence, what will be decisive will be the substance and reality of the

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language and not its form1 the burden to prove that the case of the accused falls within an
exception to a statutory offence lies on him2

In the present case the petitioner RJ is claiming exception to the offence under Section
292 on the IPC with the argument that the distribution of the said books were with the
object of promoting learning.

With regard to this argument we may refer to the case of Bobby Art International v. Om Pal
Singh Hoon3, where the Delhi High Court refused to put a ban on the movie Bandit Queen
saying that a movie which aimed to put an end to social evil could not be made impermissible
to screen merely because it depicted sexual content because whatever had been depicted in
the movie was not to excite cinema goers but to fill them with disgust for the perpetrators of
such a disgusting crime.

It is to be noted that noted that in the present case not only does the book by the
petitioner have any content which could be said to be for the benefit of the general
public, but instead it contains practices which are savage, necrophilic and against the
very ethos of morality in every human society. The primary objection against the book
is not because it has sexual content, but because the object of that content is not to
educate but to corrupt the minds of the general populace.
Secondly it is submitted that in the case of Ranjit D Udeshi vs State of Maharashtra4
where it was argued that Section 292 of the IPC 1860, violates Article 19 (1) (a) of the
Constitution since it puts restrictions on the freedom of speech and expression, the court said
that it makes an exception in favour of existing laws which impose restrictions on the
1 Attorney General of Hongkong vs. Lee Kwong Kut (1993) 3 All ER 939

2 Vijaya Singh vs. State of UP AIR 1990 SC 1459

3 Bobby Art International v. Om Pal Singh Hoon AIR 1996 SC 1846

4 Ranjit D Udeshi vs State of Maharashtra AIR 1965 SC 881

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exercise of the right in the interests of public decency and morality. The court agreed that
Article 19 (1) (a) could hardly be interpreted thus as to allow obscenity.

Even The United States Supreme Court in Miller vs California5 has laid down contemporary
community standard test to define an obsceneity offence keeping in view the understanding
of the community. In Jenkin vs Georgia6, the same court also convicted the appellant for
showing a movie which had sexual content saying that the First Amendment to the US
Constitution, or the right to free speech, did not cover the commercialization of hard
pornography.
Therefore in the present case the petitioner is not even entitled to say that in
distributing the said books, he was merely exercising his right to freedom of speech
because even in the most democratic of societies, there are restrictions on this right
where it is perceived that it could lead to the moral degradation of people in society
by spreading obscenity. And the petitioners book does just that.

Third, it is put forward that Justice Mahajan in the case of Tolaram vs State of Bombay7
said that where two possible and reasonable constructions can be put upon a penal provision,
the court must lean towards that construction which exempts the subject from penalty rather
than the one which imposes penalty. It is not competent for the court to stretch the meaning of
an expression used by the Legislature in order to carry out the intention of the Legislature.
But in the present case there is no possible interpretation which could exempt the
petitioner from conviction. Neither is it within the limits of freedom of speech and
expression, nor is the content in question for the promotion of learning or for the
benefit of the general public.
Fourth Having said that, in was in the case of State of Maharashtra vs Tapas D Neogy 8,
where this very honourable Supreme Court said that it was under no obligation follow this
5 Miller vs California 413 US 25 1973

6 Jenkin vs Georgia 418 US 153 1973

7 Tolaram vs State of Bombay AIR 1954 SC 496

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narrow rule of interpretation and that while the accused has every right to make his stand
before the court, the court would go strictly by the commonsense language of the statute and
would not look for any doubt or ambiguity in the words of the statute on its own.
In the present case there is no scope for ambiguity whatsoever. The meaning of the
word obscene is to be construed by the community standard test and regardless of
the fact that the petitioner distributed the books for free and did not profit from them
per se as required under Sub-Section 2 (c) of Section 292 IPC, it also cannot be
denied that at present his cult has a very less following and influenced by the book,
more people may join him and thus he may benefit financially too.

Fifth, The object and logical purpose of any penal provision has to also be taken into
consideration if the plain intention of Parliament to fight crimes of a special nature is to be
realized.9 A common sense approach for applicability for solving a question of applicability
of a penal enactment is not ruled out by the rule of strict construction 10 Language permitting a
penal statute may also be construed so as to avoid a lacuna and to suppress the mischief and
advance the remedy. 11
Therefore in the present case it is to be noted that the fundamental object and purpose
of criminal law is not only to protect and to conserve the safety and security of
primary personal rights of individuals, but also to protect and guard public morals and
public decency and to conserve the moral welfare of the state. Thus it is the duty of
the state to guard the citizens, against attacks which maybe insidious, and punish
individuals for obscene publications which tend to corrupt morals. The same has also
been confirmed by the International Convention for the Suppression and Circulation
of and Traffic in Obscene Publications at Geneva 1923.12
8 State of Maharashtra vs Tapas D Neogy (1999) 7 SCC 685

9 Balram Kumawat v. Union of India (2003) 7 SCC 640

10 Standard Chartered Bank vs. Directorate of Enforcement AIR 2005 SC 2622

11 Swantraj vs. State of Maharashtra AIR 1974 SC 517

12 HS Gour, Penal Law of India, 11th edition 2000, Vol 3

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Sixth, it is submitted that Presumption of innocence as a human right and the doctrine of
reverse burden introduced by a statutory provision have to be delicately balanced upon the
factual matrix of the case13 Like in the case of Samaresh Bose vs. Amal Mitra14 it was said
that while deciding the obscene content of a book, a judge should have regard for the fact
whether the book conveys any literary or artistic value and should place himself in the
position of the reader to what decide what kind of influence the book may have. A mere
reference to sex will not be considered enough to ban the book from distribution.
In the presence case it is to be noted that the objection to the book of the petitioner is
not merely because it has sexual content but the kind of practices it promotes, notably
necrophilia
Conclusively the counsel wishes to put forward that the human body is considered sacred
by every society and religion across the world and while the act of sexual intercourse is for
procreation purposes, having it with a dead body amounts to denigrate humanity itself, not
mentioning to disrespect the memories of the deceased person as well.
Bible 1 Corinthians 6:19
Or do you not know that your body is a temple of the Holy Spirit who is in you, whom you
have from God, and that you are not your own? For you have been bought with a price:
therefore glorify God in your body.
Koran 9:84
Grief for the dying or the dead is but natural. and one may weep when overcome (hh. 3. 4).
but wailing, slapping the cheeks, tearing garments, etc., are forbidden (hh. 5, 6).
Bhagwad Gita Chapter XI -Of the Manifesting of the One and Manifold
All this universe enfold, All its huge diversity, Into one vast shape, and be Visible, and
viewed, and blended In one Body- subtle, splendid.

13 Krishna Janardan Bhat v. Dattatraya G Hegde AIR 2008 SC 1325

14 Samaresh Bose vs. Amal Mitra AIR 1986 SC 967

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Therefore the counsel humbly submits that the petitioner be convicted for the offence under
Section 292 IPC as his book not just promotes obscenity but crimes against humanity in
the larger context.

PRAYER

Wherefore, in the light of the facts of the case, issues raised, arguments advanced
and authorities cited, this Honourable Court may graciously be pleased to

1. Dismiss the present special leave petition of the petitioner.

2. Declare that the petitioner is liable to be convicted under Section 292 of the Indian
Penal Code 1860

And pass any order in favour of the Respondent that it may deem fit in the ends of
justice, equity and good conscience.

All of which is most humbly and respectfully submitted before this

honourable court

Counsel on behalf of Respondent

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