In our previous articles " we had discussed some of the
legal issues regarding Blogging. Let us visit a few more here.
For the information of all, I will reproduce the relevant
sections here.
292. Sale, etc., of obscene
books, etc. _
( 1 ) For the purposes of subsection
(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 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 any person, or
(e) 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].
Exception- This section does not extend to-
(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
of learning or other objects of general concern, or
(ii) which is kept or used
bona fide 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.]
STATE
AMENDMENTS
State of Orissa:
Same as in Tamil Nadu [Vide Orissa Act No. 13 of
1962].
State of Tamil Nadu:
In section 292 the words "shall be punished with
imprisonment of either description for a term which may extend to three months
or with fine or with both" substitute the following, namely:-
shall be punished with imprisonment of either
description for a term which may extend to two years or with fine or with
both..
Provided that for a second or any subsequent offence
under this section, he shall be punished with imprisonment of either
description for a term which shall not be less than six months and not more
than two years and with fine."
[Vide T.N. Act No. 25 of 1960].
State of Orissa:
Section 292A
Same as in Tamil Nadu [Vide Orissa Act No. 13 of
1962].
State of Tamil Nadu:
Add after section 292 the following new section
namely:-
292A: Printing, etc, of grossly indecent or
scurrilous matter or matter intended for blackmail.
Whoever,-
(a) prints or causes to be printed in any
newspaper, periodical or circular, or exhibits or causes to be exhibited, to
public view or distributes or causes to be distributed or in any manner puts
into circulation any picture or any printed or written document which is
grossly indecent, or in scurrilous or intended for blackmail; or
(b) sells or lets for hire, or for purposes of
sale or hire makes, produces or has in his possession, any picture or any
printed or written document which is grossly indecent or is scurrilous or
intended for blackmail; or
(c) conveys any picture or any printed or written
document which is grossly indecent or is scurrilous or intended for blackmail
knowing or having reason to believe that such picture or document will be
printed, sold, let for hire distributed or publicly exhibited or in any manner
put into circulation; or
(d) takes part in, or receives profits from, any
business in the course of which he knows or has reason to believe that any
such newspaper, periodical, circular, picture or other printed or written
document is printed, exhibited, distributed, circulated, sold. let for hire,
made, produced, kept, conveyed or purchased.. or
(e) 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 newspaper, periodical,
circular, picture or other printed or written document which is grossly
indecent or is scurrilous or intended for blackmail, can be procured from or
through any person; or
(f) offers or attempts to do any act which is an
offence under this section *[shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both]:
Provided that for a second or any subsequent
offence under this section, he shall be punished with imprisonment of either
description for a term which shall not be less than six months *[and not more
than two years].
Explanation 1- For the purposes of this section,
the word scurrilous shall be deemed to include any matter which is likely to
be injurious to morality or is calculated to injure any person:
Provided that it is not scurrilous to express in
good faith anything whatever respecting the conduct of-
(i) a public servant in the discharge of his
public functions or respecting his character so far as his character appears
in that conduct and no further: or
(ii) any person touching any public question, and
respecting his character, so far as his character appears in that conduct and
no further.
Explanation II- In deciding whether any person
has committed an offence under this section, the court shall have regard inter
alia, to the following considerations-
(a) The general character of the person charged,
and where relevant the nature of his business;
(b) the general character and dominant effect of
the matter alleged to be grossly indecent or. scurrilous or intended for
blackmail;
(c) any evidence offered or called by or on
behalf of the accused person as to his intention in committing any of the acts
specified in this section.
Vide 'T'.N. Act No. 25 of 1960].
*Substituted by T.N. Act No. 30 of 1984
293. Sale, etc., of obscene
objects to young person
Whoever sells, lets to hire, distributes, exhibits or
circulates to any person under the age of twenty years any such obscene object
as is referred to in the last preceding section, or offers or attempts so to
do, shall be punished on first conviction with imprisonment of either
description for a term which may extend to three 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 seven years, and also with fine which may extend to
five thousand rupees.
STATE
AMENDMENTS
State of Orissa:
Same as in Tamil Nadu [vide Orissa Act No. 13 of
1962].
State of Tamil Nadu:
In Section 293-
(a) for the words "any such obscene object as is
referred to in the last preceding section" the words, figures and letter "any
such obscene object as is referred to in section 292 or any such newspaper,
periodical, circular, picture or other printed or written document as is
referred to in section 292-A" shall be substituted;
(b) for the words "which may extend to six
months" the words "which may extend to three years" shall be substituted;
(c) in the marginal note, after
the words "obscene objects" the words "any grossly indecent or scurrilous
matter intended for blackmail shall be inserted."
[Vide T.N. Act No. 25 of 1960].
294. Obscene acts and songs
Whoever, to the annoyance of others-
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song,
ballad or words, in or near any public place,
shall be punished with imprisonment of either
description for a term which may extend to three months, or with fine, or with
both.
In the light of the above readers can evaluate the gravity of
the offence referred to in the earlier article where a link to an obscene
material was posted on a Blog by a visitor.
In as much as Section 67 of ITA-2000 applies to publishing
and distribution of Electronic Documents while Section 292/293 of IPC apply to
print objects and "other objects" which also gets extended to Electronic
Documents by virtue of Section 4 of ITA-2000, there is an overlap between the
two sections in different Acts.
Section 292 of IPC perhaps is wider in respect of the
type of offences covered, while Section 67 of ITA-2000 restricts itself to
Publishing, Distribution and Causing Publication and Distribution only.
In an actual incident referring to acts covered by Section 67
of ITA-2000, it would be appropriate to invoke this section from a specialized
act applicable for Electronic Documents. For the same offence it would be in
appropriate to invoke Section 292 also since this may indicate "Double
Jeopardy".
In respect of offences other than Publishing and Distribution
covered by Section 292/293 of IPC, the section can be invoked in addition to
Section 67 of ITA-2000 without raising the issue of "Double Jeopardy".
It would be necessary for the prosecution to be very specific
about the charges and the invokation of specific sections so that there is no
dilution of the charges.
