Bharat Bhushan vs State of Punjab

M.L. Singhal, J.

This is revision against the order of Additional Sessions Judge Mansa whereby he maintained the conviction and sentence based upon the accused by the learned Judicial Magistrate, 1st Class, Mansa in case FIR No. 43 dated 9.6.1995 under Section 292/293 IPC of PS Bhikhi.

The prosecution case in brief is that on 9.6.1995, ASI Karnail Singh was going to village Bhikhi in connection with patrol duty, along with H.C. Sukhwinder Singh, PHG Amarjit Singh and Jasbir Singh. He received secret information that Bharat Bhushan, accused was exhibiting blue films on T.V. by means of VCR in his shop known as "Garg General Store" situated at Bus Stand Bhikhi to young boys and thus, was corrupting their morals and that if timely raid was conducted at his shop, he could be caught while exhibiting blue films on TV by means of VCR in his shop, known as "Garg General Store", at Bus Stand Bhikhi to the young boys and corrupting their morals. On receipt of this information, he drafted ruqa which was sent to PS Bhikhi on the basis of which case was registered against Bharat Bhushan. On the way, Sukhpal Singh resident of Bhikhi was joined. His shop was raided. Bharat Bhushan accused was found present. His shop had two portions. In the front portion, the articles of general merchandise were kept. In the back portion, blue films were running on the TV by means of VCR. Bharat Bhushan was apprehended. VCR was stopped. Cassette was removed from the VCR, bearing Chasis No. 129, VCR and TV along with two blue films were also taken into possession. On seeing the police, 810 boys who were seeing the blue films, were found running away. After investigation the accused was challaned. Accused was charged under Sections 292, 293 IPC.

On the conclusion of the trial, vide order dated 9.2.1998, learned Judicial Magistrate, Ist Class, Mansal found the charge under Section 292 IPC proved against the accused. He accordingly convicted him thereunder and sentenced him to undergo R.I. for six months and pay fine of Rs. 200/ and in default of payment of fine, to undergo further R.I. for two months.

Aggrieved by the order of conviction and sentence passed by the Judicial Magistrate, Ist Class, Mansa upon Bharat Bhushan, Bharat Bhushan went in appeal to the court of Session. Learned Additional Sessions Judge Mansa, vide order dated 30.1.1999 dismissed the appeal and maintained the conviction and sentence passed upon him by the learned Magistrate. Accused has now come up in revision to this Court.

ASI Karnail Singh PW1 stated that on 9.6.1995 he along with HC Sukhwinder Singh, PHG Amarjit Singh and PHG Jagsir Singh were on patrol duty and when they reached the shop of Bharat Bhushanaccused situated at Bus Stand Bhikhi, he saw him exhibiting blue films on T.V. by means of VCR in the back portion of the shop to 810 boys. Those boys ran away on seeing the police party. Accused was found standing on the counter of the shop. Blue films being exhibited was the scene of a man and woman in the act of sexual intercourse. Learned counsel for the petitioner submitted that none of those boys has been produced nor has it come in evidence as to what was the age of those boys i.e. whether they were mature or they were raw. He further submitted that Sukhpal Singh was not produced at the trial and the prosecution case hinged only on the statement of ASI Karnail Singh, Blue films Ex. P.1 and P.2 were taken into possession. Learned counsel for the petitioner submitted that ASI Karnail Singh has stated in crossexamination that when he conducted the raid no one was witnessing the film. Suffice it to say, that ASI Karnail Singh has stated that when the police party raided the shop of the accused, an obscene film was being exhibited on TV by means of VCR in which a man and woman were seen in the act of sexual intercourse. He has stated that he saw that film for two minutes. He also stated that on seeing them, 810 boys who were seeing that blue film, ran away. Section 292 of Indian Penal Code read as under :

"292(1) For the purpose of subsection (2) a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obsence 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 persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it;

(2) Whosoever

(a) sells, lets to hire, distributes, exhibits or in any manner puts into circulation or for purpose 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) xx xx xx

(c) xx xx xx

(d) xx xx xx

(e) xx xx xx

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 of 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."

The test of obscently is this, whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immpral influences, 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 Samaresh Bose v. Amal Mitra, AIR 1986 SC 967, the Hon''ble Supreme Court has observed as follows :

"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 viewpoint 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. 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 minds 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 an objective assessment of the book as a whole and also of the passages complained of as obscene separately."

Learned counsel for the petitioner submitted that a picture of the woman in nude is not (sic) obscene where there is nothing in it to offend the morals of decent persons. It is impossible to say that it was too obscene within the meaning of this Section. In Neelam Mahajan Singh v. Commissioner of Police, 1996 Crl. LJ 2725 the Hon''ble Calcutta High Court observed that "Where obscenity and art are mixed, art must be so preponderating as to throw the obscenity into shadow of the obscenity so trivial and insignificant that it can have no effect and may be overlooked. In other words, treating 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 precocious minds, must determine the result."

Section 293 IPC reads as follows :

"293. Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do shall be punished on first conviction with imprisonment of either description for a term which may extend to three 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 seven years, and also with fine which may extend to five thousand rupees."

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.

For the reasons given above, I am of the opinion that the learned courts below justifiably found the charge proved against the petitioner and convicted him.

Petitioner is the first offender and is a petty shopkeeper, maintaining a family and as such I 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. In view of his being first offender and a petty shopkeeper maintaining a family, sentence imposed upon the petitioner is slashed and is brought down to R.I. for one and a half month and to pay fine of Rs. 200/ or in default to pay fine, to undergo further R.I. for one month under Section 292 IPC. Subject to this reduction in sentence, this revision fails and is dismissed.

Revision dismissed.