Case Note & Summary
The Supreme Court of India heard a criminal appeal limited to the question of sentence arising from a conviction under Section 292 of the Indian Penal Code, 1860. The appellant owned a shop at Kishan Ganj, Delhi, and on 1st February 1972, pursuant to a police arrangement involving a secret information and a decoy purchaser, he sold a packet of playing cards to P.W. 1. The reverse side of these cards depicted luridly obscene naked pictures of men and women in pornographic sexual postures. Upon receiving a signal from the purchaser, the police raided the shop and recovered two additional packets of obscene cards and the ten-rupee note used for the sale from the accused. The trial court convicted the accused under Section 292 IPC and sentenced him to six months rigorous imprisonment, a fine of Rs. 500, and in default of payment, further rigorous imprisonment for three months. The Delhi High Court affirmed both conviction and sentence. The accused then appealed to the Supreme Court by special leave, challenging only the severity of the sentence and seeking release under Section 4 of the Probation of Offenders Act, 1958. The appellant's counsel argued that the sentence was very severe because only one single sale had been established and only three packets of cards were recovered. He further submitted that the accused was entitled to be released on probation under Section 4 of the Probation of Offenders Act, 1958. The Supreme Court examined Section 292 IPC and noted that the section had been amended by Act XXXVI of 1969, which enlarged the scope of exceptions and enhanced the penalty. Before the amendment, the penalty was up to three months imprisonment, or with fine, or with both. The amendment introduced a dichotomy of penal treatment for first offenders and subsequent offenders, prescribing imprisonment even for a first conviction. The Court observed that the legislative intent was clear: to deal strictly with offences that corrupt the minds of people, especially the younger generation, who must be protected from libidinous appeals upon which the illicit trade is based. The Court rejected the plea for leniency, holding that the nature of the offence and the potential danger of the accused's activity in the nefarious trade affecting the morals of society, particularly of the young, precluded any lenient treatment. It refused to release the accused under Section 4 of the Probation of Offenders Act, 1958, and stated that offences of corrupting the internal fabric of the mind must be treated on the same footing as cases of food adulteration. Accordingly, the appeal was dismissed, and the accused was directed to surrender to his bail to serve the sentence.
Headnote
A) Criminal Law - Obscenity - Sentence for selling obscene playing cards - Indian Penal Code, 1860, Section 292 (as amended by Act XXXVI of 1969) - Appellant sold a packet of playing cards portraying luridly obscene naked pictures of men and women in pornographic sexual postures; only one sale and three packets were recovered. Court held that the amendment introduced dichotomy of penal treatment, enhanced penalty, and even on first conviction accused shall be punished with imprisonment and fine, reflecting legislative intent to curb corruption of minds, especially youth. Held that sentence of six months rigorous imprisonment and fine of Rs. 500 was affirmed and no leniency was warranted. (Paras Not mentioned) B) Criminal Procedure - Probation of Offenders - Release on probation under Section 4 of Probation of Offenders Act, 1958 - Probation of Offenders Act, 1958, Section 4 - Appellant argued for probation, but court found that having regard to nature of offence and potential danger of appellant's activity in nefarious trade affecting morals of society, particularly young, release was not expedient. Held that offences of corrupting internal fabric of mind must be treated on same footing as food adulteration and probation was refused. (Paras Not mentioned)
Issue of Consideration
Whether the sentence of six months rigorous imprisonment and fine of Rs. 500 for a first offence under Section 292 IPC was severe; Whether the appellant was entitled to release on probation under Section 4 of the Probation of Offenders Act, 1958
Final Decision
Appeal dismissed. Accused must surrender to his bail to serve the sentence. Sentence of six months rigorous imprisonment and fine of Rs. 500 with default three months rigorous imprisonment affirmed.
Law Points
- Section 292 IPC as amended by Act XXXVI of 1969 enhances penalty and mandates imprisonment on first conviction
- obscenity defined as lascivious or appealing to prurient interest
- tending to deprave and corrupt
- intention of legislature to protect youth from corrupting influence
- probation under Section 4 Probation of Offenders Act
- 1958 not expedient for offences involving moral corruption of society
- such offences treated on same footing as food adulteration
