Point of Law: To attract an offence under Section 292 IPC, there must be evidence to show that accused sells, drawing, painting, representation or figure or any other obscene object whatsoever.

ORDER :

Pornography has been in practice for centuries. The new digital age has made it more accessible than ever before and it is available even to children and adults at their fingertips. The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence? A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy. But God designed sexuality as something for a man and a woman within marriage. It is not only a lust but also a matter of love and for having children too. But a male and female who have attained majority, doing sex with consent is not an offence. Consensual sex between a man and woman is not an offence in our country, if it is within their privacy. A court of law need not recognise consensual sex or watching of a porn video in privacy because these are within the domain of the will of society and the decision of legislature. The duty of the court is only to find out whether it amounts to an offence.

2. Petitioner is the sole accused in Crime No.2550/2016 of Aluva Police Station which is now pending as C.C.No.1248/2016 on the file of the Judicial First Class Magistrate Court-I, Aluva. The above case is charge sheeted against the petitioner alleging offence punishable under Section 292 IPC. The prosecution case is that, while the defacto complainant and his associates were on patrol duty on 11.7.2016 at 8.40. p.m., the accused was seen standing on the road side near Aluva palace, watching obscene videos in his mobile phone and hence he was arrested and his mobile phone was seized. Annexure 1 is the FIR. Thereafter, the police laid a charge sheet before the Judicial First Class Magistrate Court-I, Aluva and the learned Magistrate has taken cognizance of the offence based on Annexure 2 Final Report. According to the petitioner, even if the entire allegations in Annexure 2 are accepted in toto, no offence under Section 292 IPC is made out.

3. The short point to be decided in this case is whether the offence under Section 292 IPC is made out in this case. It will be better to extract Section 292 IPC for a proper understanding of the ingredients of the Section:

“292. 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 persons 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 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

(c) 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

(d) 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