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Sunday, February 3, 2013

Section 292 read with Section 34 of the IPC and Section 7 of Cinematograph Act. = benefit of Section 4 of the Probation of Offenders Act. The Court rejecting the submission observed: “There are certain exceptions to this section with which we are not concerned. This section was amended by Act XXXVI when apart from enlarging the scope of the exceptions, the penalty was enhanced which was earlier up to three months or with fine or with both. By the amendment a dichotomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. In the case of even a first conviction the accused shall be punished with imprisonment of either description for a term which may extend to two years and with fine which may extend to two thousand rupees. The intention of the legislature is, therefore, made clear by the amendment in 1969 in dealing with this type of offences which corrupt the minds of people to whom these objectionable things can easily reach and it needs not be emphasized that the corrupting influence of these pictures is more likely to be upon the younger generation who has got to be protected from being easy prey to these libidinous appeals upon which this illicit trade is based. We are, therefore, not prepared to accept the submission of the learned counsel to deal with the accused leniently in this case.” - Punjab and Haryana High Court in the case of Bharat Bhushan vs. State of Punjab reported in 1999 (2) RCR (Criminal) 148 refusing to give benefit of probation for exhibiting blue film punishable under Sections 292 and 293 of the IPC. The Court held that: “exhibiting blue film in which man and woman were shown in the act of sexual intercourse to young boys would definitely deprave and corrupt their morals. Their minds are impressionable. On their impressionable minds anything can be imprinted. Things would have been different if that blue film had been exhibited to mature minds. Showing a man and a woman in the act of sexual intercourse tends to appealing to the carnal side of the human nature. Petitioner is the first offender and is a petty shopkeeper, maintaining a family and as such the High Court feel that he should be dealt with leniently in the matter of sentence. He cannot be released on probation of good conduct as the act imputed to him tended to corrupt and deprave the minds of immature and adolescent boys.” 11. In the facts and circumstances of the case and also considering the nature of the activities and the offence committed by the appellants, we are unable to show any leniency and to modify the sentence any further. 12. For the aforesaid reasons, we do not find any merit in the appeal which is accordingly dismissed.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO. 227    OF 2013
         (Arising out of Special Leave Petition (Crl.) No.2537/2012)

Gita Ram & Anr.                                       …………Appellant(s)

                                     Vs.

State of H.P.                                            ………..Respondent(s)


                               J U D G M E N T


M.Y.EQBAL,J.

      Leave granted.

2.    This appeal by special leave arises out  of  the  judgment  and  order
dated 21.11.2011 of the High Court of Himachal Pradesh  at  Shimla  in  CRLR
No. 36/2006.  Notice was issued on the limited question  of  sentence  in  a
conviction of the appellants under Section 292 read with Section 34  of  the
IPC and Section 7 of Cinematograph Act.
3.    The prosecution case was that on 07.12.2001 on  the  basis  of  secret
information the patrolling party raided the premises in Dhawan  Video  Hall,
Sai Road and found that the appellants were showing blue film to  young  men
and about 15 viewers were there in the hall.  
It  was  alleged  that  CD  of
blue film, namely “Size Matter” was  displayed  by  the  appellants  to  the
viewers on Videocon TV Sony C.D. player, one CD namely  “Size  Matter”,  two
C.Ds. of “Jawani Ka Khel”, remote, ticket book, T.V. and poster  were  taken
into possession in the presence of the witnesses.
4.    The appellants were charged for offences punishable under Section  292
read with Section 34 IPC and Section 7 of Cinematograph Act.
5.     After the statements of the appellants were  recorded  under  Section
313 Cr.P.C. the trial began and, finally on  completion  of  trial  the  Sub
Divisional Judicial Magistrate convicted and  sentenced  the  appellants  to
undergo simple imprisonment for 6 months under Section 292 of  the  IPC  and
fine of Rs.1,000/- under Section 7 of Cinematograph Act.
6.    On appeal filed by the appellants, the Additional Sessions Judge  Fast
Track Court, Solan Camp at Nalagarh affirmed  the  judgment  passed  by  the
Trial Court.  However, the appellants being first offenders  Sessions  Judge
showed  some  leniency  in  sentence  of   imprisonment   and   instead   of
imprisonment  of  6  months  the  appellants  were   sentenced   to   simple
imprisonment for one month each.  The sentence awarded by  the  Trial  Court
was modified to that extent.  The imposition of fine of  Rs.1,000/-  by  the
trial court for the offence under  Section  292  IPC  and  further  fine  of
Rs.1000/-  was  imposed  on  them  for  offence  under  Section  7  of   the
Cinematograph Act, were maintained.
The appellants then preferred  revision
before the High Court of Himachal Pradesh.  The High Court examined all  the
materials  available  on  record  as  also  the  evidence,  both  oral   and
documentary and finally came to the conclusion that there is  no  perversity
in the impugned judgment.  Accordingly, the revision was dismissed.
7.     Ms.  Sweta  Garg,  learned  counsel  appearing  for  the   appellants
submitted that the appellants are not habitual offenders and  having  regard
to the fact that the appellants, for  the  first  time,  were  found  to  be
indulged in the commission of  offence  they  deserved  to  be  released  on
probation under Section 4  of  the  Probation  of  Offenders  Act.   Learned
counsel submitted that the ends of the justice would be  sub-served  if  the
sentence is modified only by imposing of fine  and  they  may  be  asked  to
furnish bond in terms of Section 4 of the Probation of Offenders Act.
8.    We are unable to  appreciate  the  submissions  made  by  the  learned
counsel.  Section 292 IPC reads as under:
                 “Sale, etc. of obscene books, etc.- [(1) For the  purposes
        of sub-section(2),  a  book,  pamphlet,  paper,  writing,  drawing,
        painting, representation, figure or  any  other  object,  shall  be
        deemed to be obscene if it is lascivious or appeals to the prurient
        interest  or if its effect, or (where  it  comprises  two  or  more
        distinct items) the effect of any one of its items, is, if taken as
        a whole, such as to tend to deprave and  corrupt  person,  who  are
        likely, having regard to all relevant circumstances, to  read,  see
        or hear the matter contained or embodied in it.]


           [(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, or
           (b) imports, exports or conveys any obscene object  for  any  of
        the purposes aforesaid, or knowing or having reason to believe that
        such object will be sold, let  to  hire,  distributed  or  publicly
        exhibited or in any manner put into circulation, or
           (c) takes part in or receives profits from any business  in  the
        course of which he knows or has reason to  believe  that  any  such
        obscene objects are  for  any  of  the  purposes  aforesaid,  made,
        produced, purchased, kept, imported, exported,  conveyed,  publicly
        exhibited or in any manner put into circulation, or
           (d) advertises or makes known by any means whatsoever  that  any
        person is engaged or is ready to engage in  any  act  which  is  an
        offence under this section, or that any such obscene object can  be
        procured from or through any person, or
           (e) offers or attempts to do any act which is an  offence  under
        this section,


        shall be punished [on first conviction with imprisonment of  either
        description for a term which may extend to two years, and with fine
        which may extend to two thousand rupees, and, in  the  event  of  a
        second  or  subsequent  conviction,  with  imprisonment  of  either
        description for a term which may extend to  five  years,  and  also
        with fine which may extend to five thousand rupees].
           [Exception …………………………………………..”



   9. The aforesaid provision was amended in 1969  whereby  a  dichotomy  of
      penal treatment was introduced for dealing with  the  first  offenders
      and the subsequent offenders.  The intention of the Legislature  while
      amending the provision is to deal with this  type  of  offences  which
      corrupt the  mind of the  people  to  whom  objectionable  things  can
      easily reach and need not be emphasized that corrupting  influence  is
      more likely to be upon the  younger  generation  who  has  got  to  be
      protected from being easy  prey.  
Exactly,  a  similar  question  was
      considered by this Court in the case of Uttam Singh   vs.   The  State
      (Delhi Administration) 1974 (4) SCC 590.
In that case the accused was
      convicted under Section 292 IPC on the charge of selling a  packet  of
      playing cards portraying on the reverse luridly obscene naked pictures
      of men and women in pornographic sexual postures.  A similar  argument
      was advanced by the counsel to  give  benefit  of  Section  4  of  the
      Probation  of  Offenders  Act.  The  Court  rejecting  the  submission
      observed:
        “There are certain exceptions to this section with which we are not
        concerned. This section was amended by Act XXXVI  when  apart  from
        enlarging the scope of the exceptions,  the  penalty  was  enhanced
        which was earlier up to three months or with fine or with both.  By
        the amendment a dichotomy of penal  treatment  was  introduced  for
        dealing with the first offenders and the subsequent  offenders.  In
        the case of even a first conviction the accused shall  be  punished
        with imprisonment of either description for a term which may extend
        to two years and with fine which may extend to two thousand rupees.
        The intention of the legislature is, therefore, made clear  by  the
        amendment in 1969 in dealing  with  this  type  of  offences  which
        corrupt the minds of people to whom these objectionable things  can
        easily reach and it needs not be  emphasized  that  the  corrupting
        influence of these pictures is more likely to be upon  the  younger
        generation who has got to be protected  from  being  easy  prey  to
        these libidinous appeals upon which this illicit trade is based. We
        are, therefore, not  prepared  to  accept  the  submission  of  the
        learned counsel to deal with the accused leniently in this case.”

10.   A similar view was taken by Punjab and Haryana High Court in the  case
of Bharat Bhushan vs. State of Punjab reported in 1999  (2)  RCR  (Criminal)
148  refusing  to  give  benefit  of  probation  for  exhibiting  blue  film
punishable under Sections 292 and 293 of the IPC.  The Court held that:
            “exhibiting blue film in which man and woman were shown  in  the
          act of sexual intercourse to young boys would  definitely  deprave
          and corrupt their morals. Their minds are impressionable. On their
          impressionable minds anything can be imprinted. Things would  have
          been different if that blue film  had  been  exhibited  to  mature
          minds. Showing a man and a woman in the act of sexual  intercourse
          tends to appealing  to  the  carnal  side  of  the  human  nature.
          Petitioner is the  first  offender  and  is  a  petty  shopkeeper,
          maintaining a family and as such  the  High  Court  feel  that  he
          should be dealt with leniently  in  the  matter  of  sentence.  He
          cannot be released on probation of good conduct as the act imputed
          to him tended to corrupt and deprave the  minds  of  immature  and
          adolescent boys.”




11.   In the facts and circumstances of the case and  also  considering  the
nature of the activities and the offence committed  by  the  appellants,  we
are unable to show any leniency and to modify the sentence any further.
12.   For the aforesaid reasons, we do not find  any  merit  in  the  appeal
which is accordingly dismissed.

                                                                …………………………J.
                                                               (T.S. THAKUR)


                                                              …………………………..J.
                                                                (M.Y. EQBAL)
New Delhi
February 01, 2013

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