GITA RAM & ANR.versusSTATE OF H.P.

                        (2013] 1 S.C.R. 698


A                        GITA RAM & ANR.
                                  v.
                           STATE OF H.P.
                 (Criminal Appeal No. 227 of 2013)

                        FEBRUARY 1, 2013
B
              [T.S. THAKUR AND M.Y. EQBAL, JJ.]

        Penal Code, 1860:

c        s.292 read withs. 34 /PC ands. 7 of Cinematograph Act
    - Display of obscene films to young viewers - Conviction -
    Plea of accused for release uls 4 of the Probation of Offenders
    Act - Held: In view of the dichotomy of punishments
    introduced by Legislature in s.292 /PC for first offenders and
    subsequent offenders, sentence of one month's simple
0
    imprisonment with fine, needs no interference - Probation of
    Offenders Act, 1958 - s.4 - Cinematograph Act, 1952 - s. 7.

        The allegations against the appellants of showing
    blue films to young viewers on CD player were found to
E   have been proved. They were convicted u/s 292 read
    with s. 34 IPC and s.7 of Cinematograph Act. The
    sentence of six months simple imprisonment was
    reduced by the appellate court to one month each. The
    High Court dismissed appellants' revision petition.
F
         In the instant appeal, the appellants pleaded for their
    release on probation u/s 4 of the Probation of Offenders
    Act.

        Dismissing the appeal, the Court
G
        HELD: Section 292, IPC 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
H                                698
         GITA RAM & ANR. v. STATE OF H.P.                 699


  amending the provision, is to deal with this type of           A
. offences which corrupt the mind of the people to whom
  objectionable things can easily reach, and such
  corrupting influence is more likely to be upon the younger
  generation who has got to be protected from being easy
  prey. In the facts and circumstances of the case and also       B
  considering the nature of the activities and the offence
  committed by the appellants, this Court is unable to show
  any leniency and to modify the sentence any further.
  [para 9 and 11] [702-G-H; 704-E]

    Uttam Singh vs. The State (Delhi Administration 1974 (3) C
SCR 722 = 1974 (4) SCC 590; Bharat Bhushan vs. State of
Punjab 1999 (2) RCR (Criminal) 148 - relied on

                     Case Law Reference:
                                                                 D
   1974 (3) SCR 722                relied on        para 9
   1999 (2) RCR (Criminal) 148 relied on            para 10
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 No. 227 of 2013.
                                                                 •E
    From the Judgment & Order dated 21.11.2011 of the High
Court of Himachal Pradesh at Shimla in Criminal Revision No.
36 of 2006.

     Shweta Garg, Rakesh Garg, A.G. Garg for the Appellants.      F

     Naresh K. Sharma for the Respondent.

     The Judgment of the Court was delivered by

     M.Y. EQBAL, J. 1. Leave granted.                            G
    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
                                                                 H
    700     SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A   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
8
  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
C 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
D 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
E   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
F 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
G 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
H preferred revision before the High Court of Himachal Pradesh.
 GITA RAM & ANR. v. STATE OF H.P. [M.Y. EQBAL, J.] 701


. The High Court examined all the materials available on record         A
  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
                                                                        8
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           C
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             D
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,     E
     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
                                                                        F
     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   G
     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
                                                                        H
    702       SUPREME COURT REPORTS                         [2013] 1 S.C.R.


A                (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
B
                 (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
c         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,
D         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,
E         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
F         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
G 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
H
GITA RAM & ANR. v. STATE OF H.P. [M.Y. EQBAL, J.] 703


emphasized that corrupting influence is more likely to be upon       A
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) sec 590. In that case the accused
was convicted under Section 292 IPC on the charge of selling         B
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:          c
     "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            D
    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
                 0

    the accused shall be punished with imprisonment of either
    description for a term which may extend to two years and         E
    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        F
    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         G
    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              H
    704      SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A 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
B
          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
c         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
D         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
E 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.
F R.P.                                           Appeal dismissed.