12 Dec 2010

Merely watching 'porn' not an offence: High Court

Holding that the criminal law of the country does not treat possession and viewing of porn, without an intention to sale such material, as a crime the Bombay High Court in a recent decision set aside the charges framed against certain persons for having committed offences in terms of the Indian Penal Code. The High Court held that possession of porn for private viewership was not an offence prescribed under law and therefore could not be prosecuted upon. The offence was possession of porn for selling it and unless such circumstances were established, the offence could not be said to have been committed.

The High Court declared the law inter alia in the following terms;
10. Here, I am only concerned with sub-Section 2(a) of Section 292. It is not the prosecution case that sub-Section (b),(c), (d) or (e) are attracted in the present case. A reading of clause (a) of sub-section (2) makes it clear that offence is committed if either someone sells, lets to hire, distributes, publicly exhibits, or in any manner puts into circulation, or he for purpose of sale, hire, distribution, public exhibition or putting in circulation, makes, produces or keeps in possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object. Simpliciter viewing of an obscene object is not an offence under clause (a). It becomes an offence only when someone has in possession such object for the purposes of sale, hire, distribution, publicly exhibiting or putting into circulation. Thus, even assuming that there was a cassette of obscene film or that it was in the computer and was on the screen at the time the raiding party reached the bungalow, in my opinion, the petitioners cannot be charged under Section 292 of IPC.
11. In the instant case, it is not the allegation of the prosecution that the petitioners were found selling, hiring, distributing or putting into circulation the cassette of obscene film. It appears from the contention of the learned APP that it is their case that the accused were publicly exhibiting the film. This contention cannot be accepted because the bungalow cannot be said to be a public place, especially as no member of the public could freely walk into the bungalow. For the second part of clause (a) of sub-Section 2, the prosecution has to show that the obscene material was made, produced or kept in possession for the purpose of sale, hire, distribution, public exhibition or circulation. In other words, the possession of the obscene object is punishable under Section 292 of IPC only if the possession is for the purpose of sale, hire, distribution public exhibition or circulation. If the obscene object is kept in a house for private viewing and is not for sale, hire, public exhibition or circulation, the accused cannot be charged under Section 292 IPC.
12. Identical question arose before the Madras High Court in the case of V. Sundarrajan Vs State of Madras (Cri.P.C. No. 376 of 1978) decided on 28.11.1979 which was a case under Section 292-A of IPC. Section 292-A is the State Amendment in Tamil Nadu. Clause (b) of Section 292-A, IPC is more or less same as clause (a) of sub-sec. (2) of Section 292, IPC. The learned Judge of the Madras High Court has held that if a blue film is found in the possession of the accused, he cannot be convicted simply on the ground of possession unless it is further proved that the purpose of keeping the same was for selling or letting for hire.
13. Thus, the Madras High Court in V. Sundarrajan (Supra) has held that if a blue film is found in the possession of the accused, he cannot be convicted simply on the ground of possession. Without proving the purpose of possession mentioned in Section 292(2)(a) of IPC, a man cannot be convicted for the offence under Section 292 of IPC. The decision rendered in the above referred Sundarrajan's case was followed by the Rajasthan High Court in Jagdish Chavla (1999 Cri. L.J. 2562 ). In Jagdish Chavla's case, it was alleged that on 17.08.1993, the Circle Inspector received some information and he raided a house situated in Jawahar Nagar, Sri. Ganganagar, belonging to Charanjit at 5.30 p.m, and noticed that four persons including one lady, were viewing obscene film on the television with the help of VCR. He,therefore, seized the cassette, television set and the VCR and registered a case under Section 292 of IPC. In this decision, the point arose for consideration whether possession of the obscene object is punishable under Section 292 of IPC. In the said decision, it was held that if the possession is for the purpose of sale, hire, distribution, public exhibition or circulation, offence under Section 292 is made out but if the obscene object is kept in a house and is not for sale, hire, public exhibition or circulation, the accused cannot be charged under Section 292 of IPC. 
14. It is not the case of prosecution that the accused were possessing the obscene films for the purpose of sale, hiring, distributing or circulating as mentioned in clause (a) of sub-section (2) of Section 292 of IPC. I have already observed that the act of the accused of privately viewing the obscene film on the laptop in the bungalow does not amount to public exhibition. Therefore, the act of the accused of privately viewing the obscene film does not constitute an offence under Section 292 of IPC. Clause (a) of sub-sec.(2) of Section 292 of IPC makes it very clear that without proving the purpose of possession mentioned in the clause, a person cannot be convicted for the offence. As far as the aspect of obscene dance by some people in the bungalow is concerned, the said dance was not for the purpose of viewing by the general public. The people were dancing among themselves. The same was not for public exhibition. In such case, Section 292 cannot be attracted. That being so, the continuance of the proceedings against the petitioners shall only be abuse of the process of the Court. It is, therefore, deemed proper to quash the charge under Section 292 of IPC against the present petitioners/applicant.
15. Consequently, the petitions succeed. The charge against the petitioners/ applicant under Section 292, IPC is  quashed. All the application / petitions disposed of in above terms.

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