IMPORTANT POINT
Exhibiting blue film does not deserve leniency in sentencing.

Judgment :-

M.Y. Eqbal, J.

Leave granted.

2. 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 CRLR No. 36/2006. Notice was issued on the limited question of sentence in a conviction of the appellants under Section 292 read with Section 34 of the IPC and Section 7 of Cinematograph Act.

3. The prosecution case was that on 07.12.2001 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 blue film, namely “Size Matter” was displayed by the appellants to the viewers on Videocon TV Sony C.D. player, one CD namely “Size Matter”, two C.Ds. of “Jawani Ka Khel”, remote, ticket book, T.V. and poster were taken into possession in the presence of the witnesses.

4. The appellants were charged for offences punishable under Section 292 read with Section 34 IPC and Section 7 of Cinematograph Act.

5. After the statements of the appellants were recorded under Section 313 Cr.P.C. 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 of the IPC and fine of Rs.1,000/- under Section 7 of Cinematograph Act.

6. 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 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.1,000/- by the trial court for the offence under Section 292 IPC and further fine of Rs.1000/- was imposed on them for 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.

7. 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. Learned counsel submitted that the ends of the justice would be sub-served if the sentence is modified only by imposing of fine and they may be asked to furnish bond in terms of Section 4 of the Probation of Offenders Act.

8. We are unable to appreciate the submissions made by the learned counsel. Section 292 IPC reads as under:

“Sale, etc. of obscene books, etc.- [(1) 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 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 his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys