Uttam Singh Vs. The State (Delhi
Administration) [1974] INSC 66 (21 March 1974)
GOSWAMI, P.K.
GOSWAMI, P.K.
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 1230 1974 SCR (3) 722 1974
SCC (4) 590
ACT:
Penal Code--S. 292--Sale of playing cards
with luridly obscene naked pictures--Sentence if severe--If could be released
under the Probation of offenders Act, 1958.
HEADNOTE:
The appellant was convicted under s. 292
I.P.C. and sentenced to rigorous imprisonment and fine for selling a packet of
playing cards portraying on the reverse luridly obscene naked pictures of men
and women in pornographic sexual postures. The conviction and sentence was
affirmed by the High Court.
It was contended that the sentence was very
severe on the ground that only one single offence had been established and
secondly that he might be released Linder the Probation of Offenders Act, 1958.
Dismissing the appeal,
HELD :-(i) The appellant cannot be dealt with
leniently in this case. The amendment of section 292 I.P.C. by Act XXXVI of
1969, apart from enlarging the scope of the exceptions.
enhanced the penalty. By the amendment the
dichotomy of penal treatment was introduced for dealing with the first
offenders and the subsequent offenders. Even in the case of first conviction
the accused shall be punished with imprisonment. The intention of the
legislature was, therefore, made clear by the amendment of 1969 in dealing with
this type of offenders which corrupt the minds of people to whom these
objectionable things can easily reach.
The corrupting influence of these pictures is
more likely to be upon the younger generation who has got to be protected from
being an easy prey to these libidinous appeals upon which this illicit trade is
based. [724A-B] (ii) The appellant cannot be released under s. 4 of the Probation
of Offenders Act having regard to the nature of the offence and the potential
danger of the appellant's activity in the nefarious trade affecting the morals
of society, particularly the young. These offences have got to be treated on
the same footing ,is the cases of food adulterators. [724-G]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 49 of 1974.
From the Judgment aid Order dated the 1st
October, 1973 of the Delhi High Court at New Delhi in Criminal Appeal No. 170
of 1972.
Gopal Singh and M. S. Gupta, for the
appellant.
R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.This appeal by special leave is limited only to the question of
sentence in a conviction of the accusedappellant under section 292, Indian
Penal Code. The accused has a shop at Kishan Ganj, Delhi. It is no more in
controversy that on 1st February, 1972, the accused sold a packet of playing
cards portraying on the reverse luridly obscene naked pictures of men and women
in pornographic sexual postures to P.W. 1. This sale was arranged by the police
Sub-Inspector (P.W. 4) on receipt of secret information about the accused
uttering these obscene pictures. On getting a signal from the purchaser a raid
was made in the accused's shop when two more packets of such 723 obscene cards
were also recovered in addition to the packet already sold to P.W. 1. The
ten-rupee note, which was the price of the said set of playing cards and which
had been earlier given-by the Sub-Inspector to P.W. 1, was also recovered from the
person of the accused.
At the trial the accused was convicted under
section 292, Indian Penal Code and sentenced to six months' rigorous
imprisonment and to a fine of Rs. 500/-, in default further rigorous
imprisonment for three months. The High Court affirmed the conviction as well
as the sentence. Hence this appeal.
The learned counsel for the appellant submits
that the sentence is very severe on the ground that only one single sale has
been established in this case and also only three packets of cards were
recovered from the accused. He further submits that the accused is entitled to
be released on probation under section 4 of the probation of Offenders Act,
1958.
Since obscenity of the playing cards
recovered from the accused is not challenged and for the matter of that the
conviction under section 292, I.P.C., it is necessary even for the purpose of
appreciating the submission on the ground of sentence to read the definition of
obscenity under that section to keep in mind what is interdicted under the
law-.
Section 292(1) reads as follows :292(1)
:"For the purpose of sub-section (2), a book, pamphlet, paper, writing,
drawing, painting, representation or figure or any other object, shall be
deemed to be ob scene, if it is lascivious or appeals to the prurient interest
or if its effect, or (where it comprises two or more items) the effect of any
one of its items, is, if taken as a whole, such as to tend to deprave and
corrupt persons who are likely, having regard to all relevant circumstances; to
read, see or bear the matter contained or embodied in it".
Sub-section (2) of section 292 is the penal
provision which runs as follows :292 (2) : "Whoeversells, 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....
* * * * 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 extent to five years, and also with fine which may extend
to five thousand rupees".
724 There are certain Exceptions to this
section with which we are concerned. This section was amended by Act XXXVI of
1969 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 need riot be emphasised 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.
With regard to the plea of the learned
counsel on the score of section 4 of the Probation of Offenders Act, we may
read the section Power to Court to release certain offenders on probation of
good conduct : 4(1) "When any person is found guilty of having committed
an offence not punishable with death or imprisonment for life and the Court by
which the person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the defence and the character
of the offender, it is expedient, to release him on probation of good conduct,
then, notwithstanding anything contained in any other law for the time being in
force, the Court may, instead of sentencing him at once to any punishment,
direct that he be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called upon during such period,
not exceeding three years, as the Court may direct, and in the meantime to keep
the peace and be of good behaviour".
* * * * * The accused is married and is said
to be 36 years of ago.
Having regard to the circumstances of the
case and the nature of the offence and the potential danger of the accused's
activity in this nefarious trade affecting the morals of society particularly
of the young, we are not prepared to release him under section 4 of the Probation
of Offenders Act. These offences of corrupting the internal fabric of the mind
have got to be treated on the same footing as the cases of food adulterators
and we are not prepared to show any leniency. The appeal is, therefore,
rejected. The accused shall surrender to his bail to serve the sentence.
P. B. R. Appeal dismissed.
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