SECTION 292 IPC - Indian Penal Code - Sale, etc., of obscene books, etc.

Description of IPC Section 292

According to section 292 of Indian penal code,

• For the purposes of sub-section (2), a 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 persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
• Whoever:
  1. 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, reduces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
  2. 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
  3. 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
  4. 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
  5. 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.

What does Section 292 entail?

Section 292 of the IPC states that a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed to be obscene if:

1. It is lascivious (revealing a sexual desire), or

2. Appeals to the prurient interest (excessive interest in sexual matters);

3. If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see or hear the matter contained in such materials.

This section not only states what an obscene material but also makes it a punishment if such obscene material is up for sale, circulation, import-export or advertisement. Section 293 also makes it a punishable offence if such sale is made to youngsters who are below the age of 20 years.

The attempt or offer to do any such act may be punishable with imprisonment which may extend to two years and with fine which may extend to two thousand rupees. If it is a second conviction then he may be punished with imprisonment for a term which may extend to five years and with fine that may extend to five thousand rupees.

Keeping in mind the freedom of speech and artistic or creative expression, Section 292 does not extend to the following:

(a)   any book, pamphlet, paper, writing, drawing, painting, representation or figure—

(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or

(ii) which is kept or used bona fide (in good faith) for religious purposes;

(b) any representation sculptured, engraved, painted or otherwise represented on or in—

(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

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What is the Trial Procedure for Section 292?

If a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class after inquiry thinks necessary or has a reason to believe that a place is used for the sale of such obscene and objectionable articles then he may by warrant authorise any police officer above the rank of a constable to enter, search or take possession of any property found therein which is of such obscenity as described under Section 292.

Magistrate may by warrant can also authorise any police officer not below the rank of sub- inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other documents may be or maybe reasonably suspected to be.

If such steps are taken by the magistrate, then it would amount to a warrant case.
 

Stages of Criminal Trial in a Warrant Case when Instituted by the Police Report

1. FIR (First Information Report): Under Section 154 of the Code of Criminal Procedure, an FIR or First Information Report is registered. An FIR is a piece of information given by someone who is usually the aggrieved party to the police relating the act of an offence.

2. Investigation by the police: The next step after the filing of FIR is the investigation. After examining facts and circumstances and collecting evidence a conclusion a police report is filed to the magistrate.

3. Charges imposed: If after considering the police report and other important documents the accused is not discharged, then the court frames charges. This means that the accused enters a trial. It is important to note that in a warrant case the charges should be in writing.

4. Plea of guilty: After framing the charges the accused is given an opportunity to plead guilty. The court must note that such a plea is made voluntarily and not under undue pressure.

5. Prosecution evidence: After the accused pleads guilty, the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support their arguments with evidence. A lot of witnesses are also examined in the process. The court has the power to issue summons to any person as a witness or order anyone to produce any document.

6. Statement given by the accused: The accused is given an opportunity to be heard and explain his end of arguments.

7. Burden of proof: The burden of proof is on the prosecution. They have to prove to the court that the accused has indeed committed the particular crime.  

8. Judgement: The final decision of the court given with reasons in the acquittal or conviction of the accused is known as judgement. In a scenario where the accused is acquitted, the prosecution is given time to appeal against the order of the court. On the other hand, when the accused is convicted, then both sides are invited to present arguments on the punishment which is to be awarded. This is usually done when the accused has committed an offence that amounts to life imprisonment or capital punishment.

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How to get bail in a Section 292 case?

The first step is to hire a competent criminal lawyer who can aid you with the process of getting bail as the offence under Section 292 is a bailable offence. The next step would be filing for bail. The accused has to file an application for bail, that is Form no. 45 which is provided in the second schedule. The next step would be the bail hearing. This is the hearing where the judge will hear all the reasons to grant the bail and announce the decision. This is a very crucial step and there is a much more need for a good criminal lawyer representation for you as the way you present your arguments can help you get the bail or your bail may be rejected by the court. All the facts and evidence should be presented before the court. Some of the considerations that are looked into before granting bail to the accused are the following:

1. The character of the accused

2. The nature of the crime for which he has been accused

3. His employment situation and financial status

4. His background history

5. Whether the accused has been convicted before and if yes, then his regularity in the scheduled appearances by the judge,

6. His family background and history,

7. For the number of years, he has been a resident of the community where he currently lives.
 

What are your Prospects of Getting a Government Job when Charged under Section 292?

If your case is under trial then you would have to wait for the judgement to be delivered. It also differs from department to department and the process of selection. However, if you are acquitted then you would be eligible to apply for any government job. If you are convicted and have appealed it in a higher court then you may be required to mention that the conviction is appealed and sub-judice.

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Important Judgements related to Section 292

1. Maqbool Fida Husain V. Raj Kumar Pandey

Maqbool Fida Husain is a famous painter and 0ne of his paintings, later titled “Bharat Mata” (Mother India), depicts India in the form of a naked woman. Husain had sold it to a private collector in 2004. In 2006, the painting was advertised in an online charity auction for earthquake victims. The advertisement of the painting led to protests, and private complaints were filed in various parts of India. The Supreme Court transferred the matter to Delhi. The trial court in Delhi issued summons to the Husain for offences under section 292 of the Indian Penal Code (IPC),

The High Court of Delhi held that the “Bharat Mata” painting by Maqbool Fida Husain was not obscene under section 292 of the Indian Penal Code. The court reasoned that art was an important tool of expression, but that Article 19(2) of the Indian Constitution allowed limitations on freedom of expression to be restricted on the grounds of public decency and morality. However, by reviewing the intent of the artist and the idea behind the painting, the court held that the painting did not violate section 292 of the IPC.
 

2. Bobby Art International, Etc vs Om Pal Singh Hoon & Ors on 1 May 1996

In 1994, Bobby Art International, a film production company, made a film titled “Bandit Queen” which was based on a true story about a village girl who was raped and brutalized, and who subsequently became a member of a violent criminal gang as a means of revenging herself upon society. The film was based on the book about the incident written by Mala Sen. The film contained explicit scenes of rape and nudity. In July 1995, the Censor Board indicated that it would grant the film an “A” certificate (films considered suitable for exhibition restricted to adults only) in terms of the Cinematograph Act, 1952 (the Act) but only on the condition that certain scenes were deleted or modified.

The Supreme Court of India set aside the decision of the Delhi High Court which had restrained the screening of the movie “Bandit Queen, holding that the screening of a film cannot be prohibited merely because it depicts obscene and graphic events. The producers of the film, which told the true story of a woman who was raped and brutalized before taking revenge on her attackers, had approached the Court seeking the reinstatement of the classification of the film as “Adult only”. The Court held that the scenes featuring nudity and expletives served the purpose of telling the important story and that the producers’ right to freedom of expression could not be restricted simply because of the content of the scenes.

Testimonials

1. “I am a writer and I had written a book which was in the erotica genre. A reader had found some of the chapters in my book to be obscene and filed me under Section 292. I had argued before the court that it was my fundamental right to have the freedom of speech and expression and that there was nothing in my book which was obscene or contained anything regarding the same. It was a literary art. The court decided that the book was not obscene and found that I have every right to enjoy my fundamental rights given by the holy constitution of India.”

- Rakesh Prasad
 

2. “My wife is a model so being present on social media and sharing her art comes with the job. There was a shoot where she had posed with another male model which had to be a naked shoot for a magazine. A follower of my wife saw that post on social media and filed a case under section 292 against her. It was found by the court that the content was not obscene and it did not excite sexual passion or to deprave or corrupt minds of people.”

- Praful Nagraj

3. “I am a stand-up comedian and after a show of mine a man from the audience comes up to me and starts screaming at me whilst hurling swears at my way. I was definitely very shocked and he said that he found some of my jokes obscene and that he would take an action against me. He did file me under Section 292 but the court had listened to my defence which was mainly revolving around Freedom of speech and artistic freedom. The court found that my jokes had nothing that would corrupt people’s mind after applying the community standard test.”

- Sukanya Ravishankar

4. “My boyfriend and I were in a park and we were shooting a video for our youtube channel. We have a couples’ YouTube channel and my boyfriend was hugging me and holding my hand in public when a man crossing by started yelling at us and hurled a lot of abusive language at us. He said that he would file a case against us (which he did under section292) and said really nasty things about us. The whole episode was actually caught on tape by our videographer. The judge ruled in our favour and said that there had been no scene of obscenity or disgraceful behaviour.”

- Raddhika Samsun

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Why is it important to hire a lawyer for section 292?

Having a lawyer is extremely crucial in a criminal case. When you are accused of a crime and facing a criminal charge, you don’t want to go into court unprepared. Most individuals end up losing their case because they are unaware of their right, legal technicalities, and proper court procedures. There is a long list of procedures to be followed when you have to go to court. So, you must seek legal assistance from a criminal lawyer when the stakes are higher than a simple fine. A criminal lawyer also knows the technicalities and court procedures that can help you prove the accused guilty if you are the prosecutor. A criminal lawyer is an expert who can help you better your arguments and present solid evidence to the court.