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Sale, etc., of obscene books, etc (Section 292 of IPC)

(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

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(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) Otters 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:-

This Section does not extend to:—

(a) Any book, pamphlet, paper, writing, drawing, painting, representation or figure:—

i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or

ii) Which is kept or used bona fide for religious purposes?

(b) Any representation sculptured, engraved, painted or otherwise represented on or in-

i) Any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or

ii) Any temple, or on any car used for the conveyance of idols or kept or used for any religious purpose.

Section 292 along with Section 293 was added in accordance with the resolution passed by the International Convention for the Suppression and circulation of and Traffic in Obscene Publications, signed at Geneva on 12 September 1903. They were amended by the IPC (Amendment) Act, 1969.

With a view to making the then existing law more definite and clear, clause 1 explains the expression ‘obscenity’. Clause 2 of the section provides for not only enhanced punishment for matters relating to publication of obscene matters or objects but also makes it compulsory for the court to award it.

Under Section 292, the following two things have to be proved:

i) That the thing in question was obscene, and

ii) That the accused used it in any of the ways enumerated i.e., sold, distributed, imported, printed or exhibited it, or attempted or offered to do so.

Section 292 (1) consists of two parts. One part refers to a book, pamphlet, paper, writing, drawing, painting, representation, figure of any other object which is lascivious or appeals to the prurient interest, and the next part discusses that, if the above referred materials comprise of two or more distinct items, the effect of any one of its items is, if taken as a whole, tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

The word ‘obscene’ used in Section 292, IPC has not been defined anywhere in the Code. Hence, the ordinary meaning of the word must be given. The meaning of the term ‘obscene’ as given by the dictionaries is as follows:

Webster’s New International Dictionary:

“Obscene: Offensive to chastity or modesty; expressing or presenting to the mind or view something that delicacy, purity and decency forbid to be expressed impure as obscene language, obscene pictures. Impure, indecent, unchase, lewd.”

Oxford New English Dictionary:

“Obscene: Offensive to modesty or decency expressing or suggesting unchaste and lustful ideas; impure, indecent, lewd.”

New Standard Dictionary Funk and Wagnalls:

“Obscene: Offensive to chastity, delicacy, or decency expressing or presenting to the mind to view something that decency, delicacy and purity forbid to be exposed; offensive to morals; indecent; impure.

A New English Dictionary: Murray:

“Obscene: Offensive to the senses, or to taste or refinement, disgusting, repulsive, abominable, loathsome.

Offensive to modesty or decency; expressing or suggesting unchaste or lustful ideas; impure indecent lewd.

Black’s Law Dictionary:

“Obscenity: Lewd, impure, indecent, calculated to shock the moral sense of man by a disregard of chastity or modesty.

Anderson Law Dictionary:

“Obscenity: Includes on the one hand what is merely inauspicious, foul or indecent and on the other hand what is immodest, and calculated to excite impure emotions or desires.

Worcester Dictionary:

“Obscene: Indecent: Indelicate: Immodest: ‘Indecent’ signifies something more than indelicate and less than immodest – something unfit for the eye and ear.

The term ‘obscene’ means something offensive to chastity, decency, or delicacy; expressing or presenting to the mind or views something that delicacy and purity forbid to be exposed. Indecency is an act against good behaviour and just delicacy. Obscenity is such indecency as is calculated to promise the violation of the law and the general corruption of morals.

To sum up the dictionary meaning of the word ‘Obscene’ it is repulsive, filthy, loathsome, indecent and lewd.

The words ‘indecent’ or ‘obscene’ convey same idea, namely offending the recognised standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale. In M. Gowan v. Longmuir [123 S.C. (1) 10] Lord Sancs said, “I do not think that the two words ‘indecent’ and ‘obscene’ are synonymous. The one may shade into the other but there is a difference of meaning.

It is easier to illustrate than define, and I illustrate thus: For a male bather to enter the water nude in the presence of ladies would be indecent, but it would not necessarily be obscene. But if he directed the attention of a lady to a certain member of his body his conduct would certainly be obscene.

The matter might perhaps roughly expressed thus in the ascending scale: Positive- Immodest; comparative-indecent; Superlative – Obscene. These, however, are not rigid categories. The same conduct which in certain circumstances may merit only the milder description may in other circumstances deserve a harder one. ‘Indecent’ is a milder term than ‘obscene’, and as it satisfies the purposes of this case if the prints in question are indecent.

The courts have more often restricted the use of the term ‘obscenity’ to sexual immorality only. Such matters as would tend to stir in persons, into whose hands such matter is ordinarily expected to reach, sex impulse which leads to sexually impure and lustful thoughts, are declared as obscene, attracts the jurisdiction of the court to ban such publications.

The Courts in India seem to accept the meaning given to the word ‘Obscene’ by Cockburn C.J. in R.V. Hicklin [(1868) 2 R 3 QB 360 at p. 371]. Test laid by Cockburn C.J. is that “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 influence and into whose hands a publication of this sort may fall… it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.”

In Ranjit D. Udeshi v. State of Maharashtra [AIR 1965 SC 881], the Supreme Court has held that “the test of obscenity to adopt in India is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression and obscenity in treating sex in a manner appealing to the carnal side of human nature or having that tendency.

The obscene matter in a book 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 on it must not be overlooked.”

In Chandrakant Kalyandas Kakoolkar v. The State of Maharashtra [AIR 1970 SC 1390] , it has been held that in considering the question of obscenity of a publication, the court has to see whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds.

It was also observed in this case that the question of obscenity may have to be judged in the light of the claim that the work has a predominant literary merit”. Referring to the impact on the mind of the youth, the court said, “we do not think that it can be said with any assurance that merely because the adolescent youth read situations of the type presented in the book, they would become depraved, debased and encouraged to lasciviousness.

It is possible that they may come across such situations in life and may have to face them. But if a narration or description of a similar situation is given in a setting emphasising a strong moral to be drawn from it and condemns the conduct of the erring party as wrong and loathsome, it cannot be said that they have a likelihood of corrupting the morals of, those in whose hands it is likely to fall-particularly the adolescents,”

In Samaresh Bose and others v. Amal Mitra and others [AIR 1986 SC 967], the court observed,” In our opinion, in judging the question of obscenity, the judge in the first place should try to place himself in the position of the author and from the view point of the author the judge should try to understand what is it that the author seeks to convey and what the author conveys has any literary and artistic value or not.

The judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the mind of the readers.

The judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of the section by the objective assessment of the book as a whole and also of the passages complained of as obscene separately.

A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust, revulsion and boredom where as obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences. A novel written with a view to expose evils prevailing in society by laying emphasis on sex and use of slangs and unconventional language did not make it obscene.

The true test is not to find out what depraves the morals in any way whatsoever, but what leads to deprave only in one way, viz., by exciting sexual desires and lascivious thoughts.

Works of art are never considered obscene. An artistic picture of a woman in the nude is not per se obscene. In Smt. Farzaun Bi v. Board of Film Censors & Others [1983 All LJ 1133], it was held that mere showing of nude female form in the film is not necessarily obscene. It has to be proved that the manner in which the nude pictures appear in the film is such that it is likely to arouse unhealthy, lustful thoughts in the minds of viewers.

Section 292 only excepts religious prints and sculptures such as works of art which adorn the National Gallaries, which were the pride of Ancient Greece or Rome. Works of a religion character are also exempt, but their exemption is based on the principle that they arouse feelings of veneration and reverence in the beli-ever and cannot, therefore be designated as obscene.

In Neelam Mahajan Singh v. Commissioner of Police [1996 CrLJ 2725 (Cal)], the following from the speech of Lord Cockburn CJ e.c., was cited where obscenity and art are mixed, art must be so preponderating as to throw the obscenity into shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.

In other words, treating art with sex in a manner offensive to public decency and morality judged by our national standards and considered likely to pander to lascivious, prurient, or sexually preconscious minds, must determine the result.

We need not attempt to boulderize 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.”

In Jagdish Chand v. State of Rajasthan [1999 CrLJ 2562 (Raj) it was held that persons who were found viewing obscene films on television with the help of VCR could not be charged for the offence punishable under Section 292.

In Uttam Singh v. Delhi Administration [AIR 1974 SC 1230], the accused was found selling a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and women in pornographic sexual postures and was punished under Section 292.

In Raj Kapoor v. Laxman & Others, the Supreme Court has held that the prosecution of the producers and actors of the film ‘Satyam Shivam Sundaram’ under Section 292 was unsustainable, as it had been duly certified as worthy of exhibition under Section 5A of the Cinematograph Act, 1952. The certificate was held justifiable under Sec. 79, IPC.

The offence under Section 292 is cognizable and warrant must issue in the first instance. It is bailable but not compoundable, and is triable by any Magistrate. It is provided by Section 521 of the CrPC that, on a conviction under Section 292, the court may order the destruction of all copies of the thing in respect of which the conviction was had.

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