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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