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Gita Ram And Another v. State Of Himachal Pradesh .
Factual and Procedural Background
On 7 December 2001, a police patrol, acting on secret information, raided “Dhawan Video Hall” at Sai Road. The officers discovered that the appellants were publicly exhibiting a pornographic film titled “Size Matter” to approximately 15 young male viewers. A Videocon television, Sony CD player, three compact discs (“Size Matter” and two copies of “Jawani Ka Khel”), a remote control, ticket book, posters and other items were seized.
The appellants were charged under Section 292 read with Section 34 of the Indian Penal Code (IPC) and Section 7 of the Cinematograph Act. The Sub-Divisional Judicial Magistrate convicted them and imposed:
- Simple imprisonment for six months under Section 292 IPC;
- A fine of ₹1,000 under Section 7 of the Cinematograph Act.
On appeal, the Additional Sessions Judge (Fast Track Court, Solan Camp at Nalagarh) upheld the conviction but reduced the custodial sentence to one month’s simple imprisonment, maintaining both fines. The High Court of Himachal Pradesh dismissed the appellants’ criminal revision, finding no perversity in the concurrent findings of the courts below.
The appellants then approached the Supreme Court through Special Leave Petition (Criminal) No. 2537 of 2012, where notice was confined solely to the question of sentence.
Legal Issues Presented
- Whether first-time offenders convicted under Section 292 IPC for exhibiting obscene material can be released on probation under Section 4 of the Probation of Offenders Act, 1958.
- Whether the sentence of one month’s simple imprisonment, along with fines, warranted further reduction or substitution by a fine alone.
Arguments of the Parties
Appellants’ Arguments
- The appellants were not habitual offenders; this was their first conviction.
- Invoked Section 4 of the Probation of Offenders Act, urging that they be released on probation upon execution of bonds, with the custodial sentence substituted entirely by a monetary penalty.
- Contended that such leniency would serve the ends of justice in the circumstances.
Respondent’s Arguments
The opinion does not contain a detailed account of the respondent’s legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Uttam Singh v. State (Delhi Administration) (1974) 4 SCC 590 | Courts should not extend probationary relief for offences under Section 292 IPC because the statute, post-1969 amendment, reflects legislative intent to deter obscenity, particularly to protect youth. | Relied on to reject the appellants’ request for probation, underscoring that leniency would undermine legislative intent. |
| Bharat Bhushan v. State of Punjab, (1999) 2 RCR (Cri) 148 (P&H) | Exhibiting pornographic films to adolescents is morally corrupting; probation is inappropriate even for first offenders. | Cited to reinforce the conclusion that releasing the appellants on probation would be contrary to public interest. |
Court's Reasoning and Analysis
The Supreme Court examined Section 292 IPC, emphasizing the 1969 amendment that prescribes a stricter sentencing framework, including imprisonment up to two years on a first conviction. The Court observed that the legislative purpose is to curb dissemination of obscene material, which poses a particular risk to younger audiences.
Drawing extensively on Uttam Singh and Bharat Bhushan, the Court held that granting probation in such cases would defeat the statute’s deterrent objective. The judges noted that blue films have a corrupting influence, especially on impressionable minds, and that society’s interest in protecting youth outweighs the appellants’ plea for leniency.
Finding no exceptional circumstances, the Court concluded that the modified sentence of one month’s simple imprisonment and accompanying fines was already lenient and did not warrant further reduction.
Holding and Implications
APPEAL DISMISSED.
The Supreme Court upheld the sentence of one month’s simple imprisonment for each appellant and the fines imposed under Section 292 IPC and Section 7 of the Cinematograph Act. The judgment reaffirms that probationary relief is generally inappropriate for offences involving public exhibition of obscene material. While the verdict does not establish a new legal precedent, it fortifies existing jurisprudence emphasizing the protection of youth from exposure to pornography and endorses stringent sentencing even for first-time offenders in such cases.
The Judgment of the Court was delivered by
M.Y Eqbal, J.— Leave granted. 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 Gita Ram v. State of H.P Criminal Revision No. 36 of 2006 Notice was issued SLP (Cri) No. 2537 of 2012 on the limited question of sentence in a conviction of the appellants under Section 292 read with Section 34 IPC and Section 7 of the Cinematograph Act.
2. The prosecution case was that on 7-12-2001 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 the blue film, namely, “Size Matter” was displayed by the appellants to the viewers on Videocon TV, Sony CD player; one CD, namely, “Size Matter”, two CDs of “Jawani Ka Khel”, remote, ticket book, TV and poster were taken into possession in the presence of the witnesses.
3. The appellants were charged for the offences punishable under Section 292 read with Section 34 IPC and Section 7 of the Cinematograph Act.
4. After the statements of the appellants were recorded under Section 313 CrPC 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 IPC and a fine of Rs 1000 under Section 7 of the Cinematograph Act.
5. 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 the 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 1000 by the trial court for the offence under Section 292 IPC and further fine of Rs 1000 imposed on them for the 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.
6. 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. The learned counsel submitted that the ends of the justice would be subserved if the sentence is modified only by imposition of fine and they may be asked to furnish bond in terms of Section 4 of the Probation of Offenders Act.
7. We are unable to appreciate the submissions made by the learned counsel. Section 292 IPC reads as under:
“292. Sale, etc. of obscene books, etc.—(1) For the purposes of sub-section (2), 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 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.—***”
8. 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 these types of offences which corrupt the mind of the people to whom objectionable things can easily reach and it need not be emphasised that corrupting influence is more likely to be upon the younger generation who has got to be protected from being easy prey.
9. Exactly a similar question was considered by this Court in Uttam Singh v. State (Delhi Admn.) (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:
“4. … There are certain exceptions to this section with which we are not concerned. This section was amended by Act 36 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 these types of offences which corrupt the minds of people to whom these objectionable things can easily reach and it need not 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.”
10. A similar view was taken by the Punjab and Haryana High Court in Bharat Bhushan v. State of Punjab (1999) 2 RCR (Cri) 148 (P&H) refusing to give benefit of probation for exhibiting blue film punishable under Sections 292 and 293 IPC. The Court held that: [RCR (Cri) p. 150, paras 7&9]
“7. 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.
***
9. The petitioner is the first offender and is a petty shopkeeper, maintaining a family and as such [the High Court] feels 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.
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