This article is written by Vanya Verma pursuing B.B.A. LL.B (Hons.) from Alliance University, Bangalore. This is an exhaustive article that talks about various offences that are related to public health, safety, convenience, decency and morals along with their provisions under The Indian Penal Code and case laws.
Such nuisance can be categorized into two types:
- Private nuisance
- Public nuisance
A private nuisance is an act that causes annoyance or disturbance to an individual or individuals whereas, a public nuisance is a public wrong that interferes with the right of all general public. This article particularly deals with public nuisance.
Section 268 of IPC deals with public nuisance. It is defined as an act which either tends to disturb the public in general or to disregard anything that is required for the common good. The public nuisance is based on the maxim “sic utere tuo ut rem publikum non laedas” which means to enjoy your property in such a way as to not injure the rights of the public.
The term ‘public’ has been defined under Section 12 of IPC, it includes any class of community or any public. Any community or any class that is dwelling in a particular locality can be covered within the ambit of ‘public’.
The term ‘illegal omission’ must be interpreted likewise to the meanings of ‘act’, ‘acts’, and ‘illegal’ as has been provided in Section 32, Section 33, and Section 43 of IPC respectively. Only when an omission is illegal then it will amount to an offence of public nuisance.
The defence cannot be taken by the accused that the nuisance which was caused by him was in order to protect the interest of his own or to prevent or mitigate any harm to the property or crops of the accused.
An exception under Section 81 of IPC absolves a person from criminal liability if the act is committed in good faith or it was to intercept any other harm. But, if the accused is charged under Section 268 of IPC, then he cannot avail the exception under Section 81 of IPC.
One of the most important ingredients under this section to establish conviction is the existence of danger, annoyance, injury to the public, or the person who may have the occasion to use public right. For example– using a highway or a navigable river.
If a trade is interfering with the peace or comfort of the neighbour or in any neighbouring vicinity or if it turns to a health hazard, it amounts to public nuisance. The facts and circumstances of such a nuisance depending on whether all the ingredients required are satisfied for constituting an offence under this Section.
In Ram Autar v. State of Uttar Pradesh, 1962, there was an auction carried out by the appellant for vegetables. Due to this auction, the roads used to get blocked, thus interfering with the physical comfort of the community that was residing in the vicinity. The Supreme Court held that since the auctioning business was being carried out by the appellants inside their private house and the people participating in the auction were blocking the road. The court held that they cannot be convicted for the charges under public nuisance.
The court was of the view that such trades may cause some noise that might lead to discomfort to some people in the community. The communities that are staying in areas where such trade is commonly carried out have to bear such discomfort.
In Muttumira And Ors. vs The Queen Empress, 1884 there was an image put in a village at the time of Muharram near a Hindu temple, the Apex court ruled out that it was an offence under public nuisance as it intended to offend the sentiments of a class. These acts often in our country are committed by followers of a particular creed which is offensive to the sentiments of those who follow other creeds. The building of a place of worship in a specific spot is often likely to offend the sentiments of the followers of some other creeds that are residing in a neighbourhood, but such activities are not regarded as a public nuisance under the Penal Code.
The scope of this provision is to protect the people in the neighbourhood, where they dwell or occupy any property, or when they have an occasion to use a public right.
In K Ramakrishnan and Anr. v State of Kerala, 1999 it was held that an act of smoking in the public falls under the purview of public nuisance which is covered under Section 268 of IPC. Smoking in public causes passive smoking for the non-smokers. It was requested by the Kerala High Court of Kerala to declare an act of smoking in the public as “public nuisance” as well as unconstitutional.
It was observed by The High court that the act of smoking cigarettes, beedis, cigars, or tobacco is an inculpatory act under Section 268 of IPC as well as unconstitutional as it is violative of the right to life that has been described under Article 21 of The Indian Constitution, 1949.
Offences relating to Public Health, Safety, Convenience, Decency and Morals
There are various offences related to Public Health, Safety, Convenience, Decency, and Morals, that are discussed as follows:
Act likely to spread infection of disease dangerous to life
Section 269 of IPC covers negligent acts that are likely to spread infection of disease which are dangerous to life. Section 270 of IPC covers a malignant act likely to spread infection of disease which is dangerous to life.
The aim of Section 269 and 270 is to convict the people who commit such acts either with the knowledge or having reasons to believe that their acts might lead to the spreading of an infection of disease that is threatening to life.
It has been provided under Section 269 of IPC the person punished with imprisonment for a term that may extend to six months, or fine, or both, while under section 270 of IPC that such people will be punished with imprisonment of either for a term that may extend to two years, or fine, or both, as Section 270 is an aggravated form of the offence under Section 269. The term ‘malignantly’ used in Section 270 connotes the mens rea of the accused who acted maliciously by deliberately spreading the infection. Thus, severe punishment is prescribed under Section 270 as compared to Section 269.
In Mr. ‘X’ vs Hospital ‘Z’, 1998, it was found in this case that the blood sample of Mr.X was HIV positive, due to which his marriage got cancelled after his reports were shown to his fiance by the hospital authorities. Because of this event, Mr X was severely ostracised by the community. As a consequence of this, the hospital authorities were held liable by Mr X for breaching his right to privacy and he claimed compensation for the same.
The appellant’s contentions were dismissed by The Apex court. It was observed by the Apex court that the act committed by the authorities was not unconstitutional, because if the authorities didn’t disclose the fact regarding Mr X being HIV positive, his fiance would have been infected by the same disease as a result of consummation. It was further laid down by the Court that Article 21 guarantees everyone the right to lead a healthy life. Thus, if a person who is suffering from HIV Aids deliberately marries and thereby transmitting the infection to his/her partner, would be held liable under Section 269 and Section 270. It is further added that if the fiancé even after being aware of such disease is still willing to marry his/her partner, then the person who is suffering from such disease will not be held guilty of any offence under Section 269 and Section 270.
In Sanjay Goel vs Dongsan Automotive India Pvt. Ltd., 2016 the High Court of Madras handled a case which was related to contaminated effluents and dust particles emitted from a factory were thrown into neighbouring land, thus harming the health of the people living in that area and also allowed breeding of mosquitoes. It was held by the court that it was a prima facie case under various offences, which includes Section 269, IPC.
In Ramkrishna Baburao Maske vs Kishan Shivraj Shelke, 1974, the Bombay High Court said if a commercial sex worker who is suffering from a disease of syphilis, communicates the disease to another during sexual intercourse, then she will not be held liable under Section 269.
Disobedience to quarantine rule
Section 271 of IPC covers disobedience to quarantine rule.
What is the Quarantine Rule?
The term quarantine refers to strict isolation of someone to prevent the spread of the disease. Quarantine is used by the government to end the spreading of contagious diseases. Quarantines are for those people or groups who do not have symptoms of a disease, but they were exposed to the sickness. With the help of quarantine rule, these persons are kept away from others so that they don’t unknowingly infect anyone.
Quarantines may be used during:
- Outbreaks: It is a situation when there is a sudden rise in the number of cases of the disease.
- Epidemics: It is similar to outbreaks, but it is generally considered to be larger and more widespread.
- Pandemics: These are vaster than epidemics, generally global in nature and affect more number of people.
Section 271 means that if any person knowingly disobeys any rule which is made with the object of isolating the places where infectious disease is prevailing from other places, then such person will be held guilty under this provision. This section requires that there should be disobedience with knowledge of a rule that is made and promulgated by the government.
The person shall be punished with imprisonment up to six months, or fine, or both.
Adulteration of food or drink intended for sale and Sale of noxious food or drink
There are certain things that are needed to be proved by the prosecution as follows:
- Adulteration was done by the accused.
- Article in question was food or drink which was meant to be consumed by any living person.
- Due to such adulteration, the article subsequently became noxious.
- Adulterated the article with an intention to sell such an article as food or drink, knowing that such an article will be sold by someone else as a drink or food.
An act of adulteration merely does not amount to an offence under Section 273 unless the adulteration is to an extent to render the article noxious. The sale of such noxious articles as food or drink is mainly prohibited under this Section and not a mere sale of the noxious article.
The term “noxious as food” refers to food that is injurious to health or of detrimental nature.
Under section 272 and Section 273 of IPC a person shall be punished with imprisonment up to six months, or with a fine up to thousand rupees, or both.
In Ram Dayal and Ors. v Emperor, 1923, there was an act of mixing pig’s fat with ghee and was subsequently sold. It was held that by way of such selling it will not make the article “noxious as food”, even though it is noxious to religious sentiments of a class of people. The court was of the view that mixing of water with milk is not an offence under this section, as the mixture is neither noxious nor injurious as food or drink. In a similar way selling wheat along with a large admixture of extraneous matter, like dirt, charcoal, wood was held to not constitute any offence. But if the same is found to be mixed with the hair of rodents or their excreta, and plenty of foreign starch, it will obviously be ‘noxious as food’. Article of food or drink that is intended to be sold, due to the lapse of time or not taking proper care and precaution or not adding preservatives may become noxious.
Adulteration of drugs
Section 274 of IPC deals with the adulteration of drugs. This section comes into force when due to adulteration, the efficiency of drugs reduces or the effects of drugs are either altered or turned noxious.
Under this section, it is necessary that there must be an adulteration of any drug or any medical preparation. This should be done in such a way in order to lessen its efficacy or to change its operation, or to make it noxious. The accused should have the intention that this shall be sold or used for any medicinal purpose, or have knowledge that it is likely to be sold or used as such, and show as if no such adulteration took place.
A person held guilty under this section shall be punished with either simple or rigorous imprisonment for a term that may extend up to six months, or with the fine maximum up to one thousand rupees, or with both.
The offence under this section is available, non-cognizable and non-compoundable and is triable by the Magistrate of the first class.
Sale of adulterated drugs
Section 275 of IPC prohibits the sale of adulterated drugs as well as its issuance from any dispensary. The expression ‘exposes it for sale’ need not necessarily mean that the drug must be exposed to view; it is sufficient under this section if it is contained in a packet or in any other wrappings. A compressive law, The Drugs and Cosmetics Act, 1940 now regulates the manufacture, distribution, sale, import etc. of drugs.
A person held guilty under this section shall be punished with imprisonment that may extend up to six months, or the fine that may extend up to one thousand rupees, or with both.
The offence under this section is available, non-cognizable and non-compoundable, and is triable by the Magistrate of the first class.
Sale of drugs as a different drug or preparation
Section 276 of IPC requires that the prosecution must prove that the drug or the medical preparation was sold knowingly, or it was offered or exposed for the purpose of sale, or it was issued from a dispensary for some medical purpose as a different drug or medical preparation. This section does not refer to adulteration.
Under this section the liability has not been fixed for the injury that is caused but for selling, offering or exposing for sale, or for issuing any drug or medical preparation.
A person held liable under this section shall be punished with either simple or rigorous imprisonment extending up to six months or with fine maximum up to rupees one thousand, or both.
The offence under this section is bailable, non-cognizable, and non-compoundable, and it is triable by the Magistrate of the first class.
Fouling water of public spring or reservoir
Section 277 of IPC deals with the person who voluntarily contaminates any public spring or reservoir that belongs to every member of the community. This act must be done in order to render it less fit to be utilised for the purpose for which it is generally used. The act must be done voluntarily.
The term ‘corrupts or fouls’ is used in this section connotes the act of physically deteriorating or defiling the condition of water from any public spring. Thus, someone taking a bath in a private tank will constitute an offence under this section.
The use of the expression ‘less fit’ rather than using ‘unfit’ is deliberate as the water may not have been rendered totally unfit for use, but even if it has been turned less fit, the accused is held to be guilty. The word ‘voluntarily’ has the same meaning as given under Section 39 of IPC.
A person under this section shall be punished with either simple or rigorous imprisonment which may extend up to three months, or with the fine maximum five hundred rupees, or both.
The offence under this section is bailable, non-cognizable and non-compoundable, and it is triable by the Magistrate of the first class.
Making atmosphere noxious to health
Section 278 of IPC deals with the punishment for making the atmosphere noxious to health and due to such noxious atmosphere health of the general public is affected.
Section 278 applies to such trades which produce noxious and offensive smells. Trades such as making candles by boiling stinking stuff, a factory for making sulphur spirit, vitriol etc, or a tannery where skins are steeped into water thus, making the atmosphere vitiated. Even from burning bricks lime in a kiln produces smoke which is noxious. The setting up of a noxious trade in the vicinity of a populated locality is always considered as a nuisance.
A person under this section shall be punished with a fine extending up to five hundred rupees.
The offence under Section 278 is a bailable, non-cognizable and not compoundable, and is triable by the Magistrate. Offence and summons should ordinarily be issued in the first instance.
X was accused of an offence that he and his family were utilising an open compound as a latrine and thereby polluting the atmosphere. It was held to be public nuisance X was made liable to guilty under Section 278 of IPC.
In K. Ramakrishnan and Anr. v. State of Kerala and Ors, 1999, it was held that the smoking of tobacco in any form in a public place makes the atmosphere injurious for the health of non-smokers who are present in the proximity. Therefore, smoking in a public place attracts Section 278 of IPC and is held to be unconstitutional under Article 21 of The Constitution of India.
Rash driving or riding on a public way
Section 279 of IPC deals with driving or riding any vehicle on a public way in a rash or negligent way. Due to such driving or riding either human life must be endangered or it is likely to cause hurt or injury to another.
Therefore, in such cases, the offender is punished for the manner in which the entire event underwent and not for the produced results.
The prosecution in order to establish guilt under Section 279 is required to prove the following-
- The accused was riding or driving the vehicle on a public way.
- The manner in which the driving of the accused was rash and negligent to such an extent to endanger human life or possibly injure or cause hurt to another person.
In such acts, the essential ingredient is the existence of criminality. The presence of mere carelessness or error is not sufficient to prove him guilty under this section.
No sound of a horn or driving at a high speed, by itself is not indicative of guilt under this section. Time, place, traffic etc. are important factors in order to determine the guilt.
A child getting confused and nervous on hearing the horn of a vehicle, suddenly tries to cross the road which resulted in an accident with the vehicle, such act does not make the driver guilty under this section.
A bus driver though driving a bus at a reasonable speed, ran over a cyclist because of the failure of not looking towards the right before taking a turn on the crossroads, the bus driver was convicted for his reckless driving.
A person held liable under this section shall be punished with either simple or rigorous imprisonment for a term that may extend up to six months, or with fine maximum up to one thousand rupees, or with both.
The offence under this section is available, cognizable and non-compoundable, and is triable by the Magistrate of the first class.
In the State By J.C. Nagar P.S. v Santanam, 1997, the accused was military personnel, he drove a military truck in a zigzag manner and hit a moped rider killing him and then hit against the autorickshaw causing damage to it. The autorickshaw driver chased the truck in another autorickshaw and saw him hitting a compound wall and a grille. The High Court of Karnataka held that the truck driver was guilty under section 279 of the Code.
In Braham Dass v. State of Himachal Pradesh, 1988, the bus driver stopped the bus at a bus-stop, a passenger, after getting down from the bus, went up to the roof of the bus to unload his luggage. The driver was not aware of this and he started the bus. There was no examination on the part of the conductor. There was no evidence that led to show any negligence on the part of the bus driver. The Supreme Court held that Section 279 was not applicable.
Section 280 of IPC requires that the vessel should be navigated either rashly or negligently, and such rashness or negligence must be endangering to human life, or cause hurt or injury to another person. The term vessel has been defined under Section 48 of the Code as anything which is made for the conveyance of humans or any property by water.
A person held guilty under Section 280 of the Code shall be punished with either simple or rigorous imprisonment for a term that may extend for six months, or fine of one thousand rupees, or with both.
The offence under this section is bailable, cognizable and non-compoundable, and is triable by the Magistrate.
Exhibition of false light, mark or buoy
Section 281 of IPC requires that the accused must exhibit some false light, mark or buoy. It should be established by the prosecution that while doing so the accused had an intention or knowledge that his act is likely to mislead any navigator by such exhibition. The quantum of the penalty indicates that the offence is viewed very seriously.
A person held guilty under this section shall be punished with either simple or rigorous imprisonment for a term that may extend up to seven years, or fine, or with both.
The offence under this section is available, cognizable and non-compoundable, and is triable by the Magistrate of the first class.
Conveying a person by water for hire in unsafe or overloaded vessel
Section 282 of IPC requires that the prosecution must establish knowledge or negligence of the accused when he conveys any person in any vessel by water. The section is also applicable in cases where a person is conveyed by water in any vessel on the payment of money. In both cases, the vessel must be either unsafe or overloaded, so as to be dangerous to the life of the person who has boarded it.
A person under this section shall be punished with either simple or rigorous imprisonment for a term that may extend to six months, or with the fine maximum up to one thousand rupees, or with both.
The offence under this section is bailable, non-compoundable and cognizable, and triable by the Magistrate.
In V.R. Bhate and Ors v. State of Maharashtra, 1970, there was a passenger vessel which tilted to one side because of the stampede and exerted all the weight on the tilted side, due to which the water started flowing into the vessel. Thus, frightening the passengers.
The vessel owners were not held to be responsible by the Supreme Court for the incident as the flow was not due to the overloading of passengers but because of the stampede.
Section 283 of IPC deals with any person who by doing such an act or omission of an act takes order with any property under his possession or charge, and such property causes danger, obstruction or an injury to any person in any way of a public or public line of navigation.
Under Section 283 of IPC, a person shall be punished with a fine extending up to two hundred rupees.
The offence under this section is bailable, non-compoundable and cognizable, and triable by the Magistrate.
Negligent conduct with respect to poisonous substance
Section 284 of IPC requires that there should be an act involving poisonous substances. The act must either be rash or negligent, that should be endangering human life or it must be likely to cause hurt or injury to someone. If this is not the case then there must be an omission, either with knowledge or negligence, to take such an order with any substance which is under his possession that is sufficient to guard against any apparent danger to human life arising out of such poisonous substance.
A person held guilty under this section shall be punished with either simple or rigorous imprisonment maximum up to six months or with fine extending up to one thousand rupees, or with both.
The offence under this section is bailable, cognizable and non-compoundable, and triable by any Magistrate.
Negligent conduct with respect to fire or combustible matter
Section 285 of IPC requires that there should be some rash or negligent act by the accused. The act must be endangering to human life or must be likely to cause hurt or injury to another person. If this is not the case then there should be an omission, either knowingly or negligently, to take such an order with fire or with any combustible matter which is in his possession that is sufficient to guard against such probable danger to human life arising from such fire or combustible matter.
A person held guilty under this section shall be punished with either simple or rigorous imprisonment maximum up to six months or with the fine maximum up to one thousand rupees, or with both.
The offence under this section is bailable, cognizable and non-compoundable, and triable by any Magistrate.
In Kurban Hussain Mohammadalli Rangwala v. State of Maharashtra, 1964 the paint and varnish factory of the accused caught fire due to which seven workers lost their lives and several workers suffered burn injuries. The dead people worked in a loft where the manufactured paint was stored.
The Supreme Court held that the accused breached a special condition of the license, by permitting the lighting of four burners in the same room without any precautions in order to prevent a fire that would be dangerous to human life. As it was a negligent omission to order lightning with fire or any other combustible matter in his possession which was sufficient to guard against any possible danger to human life, the accused was held to be guilty.
Negligent conduct with respect to explosive substance
Section 286 of IPC requires the doing of an act with any explosive substance. The act must either be a rash or a negligent act. It must be endangering human life or is likely to cause hurt or injury to another person. If not this, then there must be an omission, either with knowledge or negligence, to take such an order with any explosive substance which is in his possession and is sufficient to guard against probable danger to human life arising from such explosive substance.
Even though the term ‘explosive substance’ has not been defined under the Code, it has been defined under Section 2 of The Explosive Substances Act, 1908, it is deemed to include any such materials that are required for making any explosive substance; it also includes any machine, material, apparatus or implement used, or is intended to be used, or is adapted for causing, or an aid to cause, any explosion or with any explosive substance, also with any part of such machine, apparatus or any implement.
A person held guilty under this section shall be punished with either simple or rigorous imprisonment maximum up to six months or with the fine maximum up to one thousand rupees, or both.
The offence under this section is bailable, non-compoundable and cognizable, and triable by any Magistrate.
Negligent conduct with respect to machinery
Section 287 of IPC requires doing an act with any machinery. The act must either be rash or negligent. It must be endangering human life or likely to cause hurt or injury to another. If this is not the case then there should be an omission either with knowledge or negligence to take such an order with any machinery which he has under his possession or under his care and is sufficient to guard against probable danger to human life arising from such machinery.
A person held guilty under this section shall be punished with either simple or rigorous imprisonment for a term that may extend up to six months or with fine maximum up to one thousand rupees, or both.
The offence under this section is bailable, cognizable and non-compoundable, and triable by any magistrate.
Negligent conduct with respect to pulling down or repairing buildings
Section 288 of IPC requires that either the accused pulls down a building or repairs the same. While doing it knowingly or negligently, there must be an omission on the part of the accused to take such order with that building as is sufficient to guard against any apparent danger to the life of the human from the fall of that building or any part of the building.
A person held guilty under this section shall be punished with either simple or rigorous imprisonment extending up to six months, or with the fine maximum up to one thousand rupees, or both.
The offence under this section is bailable, cognizable and non-compoundable, and triable by any Magistrate.
In Abdul Kalam v. State (Government of NCT of Delhi), 2006 the petitioner was a building owner, he assigned a contractor for the construction job of the house. While doing the plastering, a labourer fell down from scaffolding which was put up by the contractor. It was held by The Delhi High Court that this cannot fall under section 288 as the petitioner did not commit any act that could be considered as rash or negligent to endanger human life and, therefore, he was held not guilty under this section.
Negligent conduct with respect to the animal
Section 289 of IPC requires an omission on the part of the accused. This omission should be with knowledge or negligence. It must be regarding any animal in possession. The order should be sufficient to guard against any apparent danger to the life of the human, or cause grievous hurt from such an animal.
The word ‘animal’ which has been used in the section may be with regard to any tame or a ferocious animal.
A person held guilty under this section shall be punished with either simple or rigorous imprisonment extending up to six months, or with fine maximum of one thousand rupees, or both.
A buffalo that is considered to be a dangerous animal had pushed an old woman carrying a grass load on her head in a field as a result of which she died. The owner and the servant, who had immediate control at that moment, were held guilty under this section.
Punishment for public nuisance in cases not otherwise provided
Section 290 of IPC covers all such cases of public nuisance for which no separate provisions for punishment under the Code have been made.
Under Section 290 the respondent association had filed a case against the appellant municipality for continuously and systematically failing in their duty to maintain cleanliness in the town. Important questions involved in the case were whether the municipality could be considered to be included within the word ‘whoever’, and secondly whether a sanction before prosecuting the municipality was needed to be taken under The Andhra Pradesh Municipality Act, 1965.
The court held that a municipality is included within the word ‘whoever’ because the nature of punishment under this section is such as could be given to the municipality, and the word ‘person’ includes a company or association or body of persons, whether incorporated or not under Section 11 of IPC. The question of sanction is irrelevant because Section 395 of the above The Andhra Pradesh Municipality Act, 1965 does not refer to any such prosecution.
The second instance where there was an existence of a coal depot for around seven or eight years at a particular place, was held not to be a public nuisance as just two persons complained about the same, which does not fall under a proper criterion in order to identify public nuisance. But, the Court held that if the same could be proved to be as a private nuisance, an action as per law could be taken.
The school manager cannot be held to be liable under this section if a portion of a school building collapses and results in the death of many students and others and injuries to many others, because the building was constructed by masons and it cannot be expected by the manager to know, as being a layman, whether the proper quantity and quality of cement, mortar lime other substances and materials were used while constructing the building or not. The municipal authorities who had the responsibility of periodic inspection of the school should have been much more cautious and careful and would have been able to easily detect that the building was not fit enough to be a school.
This section does not penalize for quarrelling in a public street as the same does not cause annoyance to locals. A public nuisance does not legalise even if it has been continuing for a very long period of time.
The place becoming filthy due to the cows urinating on the road has not been held to be an offence under this section.
Playing a radio at a high pitch at odd times and disturbing others is held to be too trivial and hence not punishable under this section.
No punishment has been provided under this section. This section says that in any case whoever commits a public nuisance that is not otherwise punishable under the Indian Penal Code, shall be punished with a fine that may extend up to two hundred rupees.
The offence under section 290 of the Code is bailable, non-cognizable and non- compoundable, and triable by any Magistrate.
Continuance of nuisance after injunction to discontinue
Under Section 291 of IPC, the accused must either repeat or continue public nuisance. The accused must be enjoined by a public servant. The public servant must be having authority under law to issue such an injunction so as to not repeat or continue such nuisance. Magistrate is empowered under Section 142 and Section 143 of The Code of Criminal Procedure, 1973 to issue such an injunction pending inquiry in order to prevent danger and may order any person to stop public nuisance. The court is empowered under the Code of Civil Procedure, 1908 to issue a temporary injunction.
A person held guilty under this section shall be punished with simple imprisonment extending up to six months, or fine, or both.
Sale, etc., of obscene books, etc.
Section 292 and Section 293 discussed below were added to the Code by complying with a resolution that was passed by The International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications Geneva, 1923. After which certain changes were brought to these sections by the Indian Penal Code (Amendment) Act 1969.
Section 292 of IPC has replaced the old Section 292 which had been inserted in the IPC by Act VIII of the year 1925. Under this present section activities like selling, letting to hire, distributing or publicly exhibiting, circulating any books, etc., or any representation of a figure or object which is considered to be obscene is an offence under this section as well as keeping the above-mentioned things for the purposes of sale, etc. or having it under one’s possession is also an offence.
This section exempts liability when the publication is for the good of the public on the suggested lines or when it is used bona fide for some religious purposes. In a similar way, any representation etc. on an ancient temple or monument, or any car that is kept or used for conveying idols or for religious purposes is exempted from liability under this section.
The word ‘obscene’ has not been defined in this section, but the use of words ‘shall be deemed to be obscene’ in subsection (1) of Section 292 creates a fiction, as anything which is considered to be lascivious or something which appeals the prurient interest or the effect that has a tendency to corrupt and deprive persons is considered to be ‘obscene’ within the meaning of this section.
In the famous case of Regina v. Hicklin, 1868 Cockburn, C. J., laid down the obscenity test which has been widely accepted as the valid exhibition of the law. According to him, the test of obscenity includes, whether the tendency of the matter that is charged as obscenity is to corrupt and deprave the ones whose minds are open to such immoral influence and the ones in whose hands the publication of this sort may fall. It makes it quite certain that it would refer to the minds of the young either of sex, or even to persons of more advanced year, thoughts of a most lubricious and impure character.
This test has been accepted by the Supreme Court in Ranjit D. Udeshi vs State Of Maharashtra, 1964. The appellant along with four other persons, in this case, were partners of a firm and owned a bookstall, they were convicted under section 292 by the magistrate for keeping a book named ‘Lady Chatterley’s Lover’ in their stall for sale, the book was banned.
The Supreme Court and the High Court maintained the conviction of the appellant. It was observed by The Supreme Court that treatment of sex in such manner so as to appeal the carnal side or to have a tendency towards which is obscene, and it must be seen as to whether such matter is likely to corrupt and deprave the ones whose minds are open to such influences and the ones into whose hands such material is likely to fall.
Obscenity which is considered offensive to decency or modesty cannot be guarantee under Article 19(1)(a) of the Indian Constitution, 1949 on the ground of freedom of speech and expression guaranteed under this article as freedom of this kind is subject to reasonable restrictions in the public interest of morality or decency.
A mere showing of a female body that is nude does not certainly mean it is obscene. It has to be proved by the prosecution that it is likely to arouse in the mind of the viewers unhealthy and lustful thoughts.
Where the author of the book or novel does not make the use any immodest or vulgar language but if at certain places the author has tried to let the imagination of a reader to grow, it cannot be held to be amounting to obscenity.
Any material that incites extreme immoral perversion in regard to sexual indulgence that leads to degeneration and depravity and introduces carnal desires to seek immoral satisfaction is to be punishable under this section.
The court in order to decide whether a particular material is obscene or not, the court must try to find out what will be the effect of the publication on ordinary members of the society. The standard of a reader is neither one without any sensibility nor one of exceptional sensibility.
The offender cannot use the defence that the information in the particular offending book has been copied from some other source. If that offending book deals with the matter of sex, in such a way so as to stir sex impulses and which leads among the youth impure sexual thoughts and corrupts their mind in the process, then he will be held guilty under this section.
The law of obscenity should be interpreted in proper perspective, in the current day when it is required by India to take a realistic view of steps that have to be taken to check the population explosion in the country. Emphasis on family planning and sex education has to be laid down in books, posters and such other materials which include audio and video cassettes in a slightly more open way but do not corrupt or degrade the morals. More latitude is needed to be given to the matters of interpretation in order to let the courts take a just and reasonable stand-in eliminating pornography as well as vulgar sex from correct public awareness towards the education of sex in the national interest.
In Chandrakant Kalyandas Kakodar vs The State Of Maharashtra And Ors, 1969 the Supreme Court was of the opinion that where the argument is supported as the allegedly obscene matter is actually literary merit work, then the views of leading literature can always be used. The overall view of the entire work must be taken by the Court and then decided as the specific passages are really obscene, always bearing in mind the impact of the book on social morality of contemporary society.
In Samaresh Bose And Anr vs Amal Mitra And Anr, 1985, the appellant who’s a famous Bengali writer, published in a Bengali journal his novel titled ‘Prajapati’. The Supreme Court while setting aside his conviction under Section 292, held that a vulgar writing is not necessarily obscene. A feeling of disgust and revulsion is aroused by vulgarity which also includes boredom but does not have the effect of corrupting, depraving, debasing the morals of a reader of the novel, whereas the obscenity has a tendency to corrupt and deprave the ones whose minds are open to such an immoral influence.
A judge, while judging as to whether a material violates the law of anti-obscenity, should first put himself in the author’s place and then try to understand his viewpoint. After that, he must put himself in the place of a reader and try to analyse how he actually feels while reading the concerned material. Thereafter he must apply his judicial mind to come to a conclusion. In this process, he is authorised to ask for the views of eminent literary men in order to know about how they feel towards such material.
The novel in question, which described the human body of a female in all its sensitivity. But only on that basis obscenity or otherwise cannot and should not be inferred. The novel intended to expose various ills and evils that are prevailing in the society. Emphasis was made on sex, use of slangs and narrations of feelings, description of female human body, thoughts and actions, these were all parts of the expression which had been chosen by the author with a view in order to bring out the shock and disgust that is present in today’s society. The novel thus was held not to be lascivious and depriving the morals and, therefore, not obscene.
In Promilla Kapur vs Yash Pal Bhasin And Ors, 1989, the appellant was the author of the book ‘Indian Callgirls’ which was an abridged edition of her book ‘The Life and World of Callgirls in India’. The author is a sociologist and the publication of the book was a piece of her research. The book also contained the interviews the author had with call girls and had described their encounters with males which included first experiences of a few of them. As the book was written with a view to making the strategy to fight such malaise, it was held to fall under an exception to Section 292, and thus the book was not obscene.
In Jagdish Chavla And Ors. v State Of Rajasthan, 1999 it was observed by High High Court that possession of an obscene object is punishable under Section 292 of the code, if the possession is for the purpose of distribution, sale, hire, circulation or public exhibition and, therefore, if persons are found viewing obscene film on section television with the help of such video cassette recorder cannot be charged for as guilty under this section.
A person held guilty under this section shall be punished with on being convicted for the first time with imprisonment maximum up to two years, and with fine up to two thousand rupees, and, in the case of a second or subsequent conviction, with imprisonment maximum up to five years, along with fine up to five thousand rupees.
The offence under Section 292 is bailable, cognizable and non- compoundable, and triable by any magistrate.
Sale, etc., of obscene objects to a young person
Section 293 of IPC requires sale, letting to hire, exhibition, distribution, or circulation of any such object that is mentioned under section 292 of the Code, it includes offering or attempting to do so. The condition required under this section is that such an act must be done to a person who has not attained the age of twenty years yet. Corrupting or vitiating the mind of youth is treated more severely under the section.
A person guilty under this section while being convicted for the first time, shall be punished, with either a simple or rigorous imprisonment for a term maximum up to three years, all along with fine that may extend up to two thousand rupees, and, while being convicted on subsequent occasions, with simple or rigorous imprisonment for a term extending up to seven years, and with fine that may extend up to five thousand rupees.
Obscene acts and songs
Section 294 of IPC deals with obscene acts and songs. Section 294 does not constitute an act done which is done in private.
To establish a conviction under this section following ingredients have to be satisfied:
- Obscene act must be done in some public place or recitation or utterance of a song or words in or in a vicinity of the public place
- Annoyance should be caused as a consequence
In the case of Deepa And Ors. v. S.I. of Police And Anr., 1985, the question was raised on the dance that was performed by cabaret dancers in a posh hotel. The court held that the dance performance amounted to obscenity because the dancers showed their private parts during the performance and dance was annoying to the audience.
This performance cannot be said that it was done in some private enclosure as the hotels and restaurants are accessible to the ordinary public.
In The State Of Maharashtra v. Joyce Zee Alias Temiko*, 1973, it was decided by the Bombay High Court that the hotels where the cabaret dancers perform fall under private and enclosed places where access is only allowed to persons who are willing to witness such performances, a person who is aggrieved or ‘annoyed’ after witnessing such performance cannot be protected under this section.
It is only after that such an adult consents to witness such acts that he goes to places where such performance is going on.
A person held liable under this section shall be punished either with simple or rigorous imprisonment for a term that may extend to three months., or fine, or with both.
The offence under this section is bailable, cognizable, and non-compoundable and triable by any magistrate.
Keeping the lottery office
Section 294A of IPC punishes those who keep the lotteries that are unauthorized by the government. The object of this section is to save people from getting trapped in such games whose nature is similar to that of gambling.
This section has been inserted by the Indian Penal Code (Amendment) Act, 1870.
The two methods have been devised in order to prohibit such circulation of money, that is:
- Charging for keeping such places or offices that draw such lotteries.
- Penalizing the advertisements pertinent to them.
The first point of this section says that if any person keeps any place or office for the purpose of drawing such lottery that is neither a State lottery nor it is authorized by the State Government, shall be punished with simple or rigorous imprisonment for a term maximum up to six months, or fine, or both.
The second point of this section penalizes the publication of any proposal related to a lottery that is not authorized by the government. If someone does so he shall be punished with a fine extending up to one thousand rupees.
The offence under Section 294-A of the Code is non-cognizable, bailable and non-compoundable, and is triable by any magistrate.
This article discusses various offences that fall under public nuisance, their applicability, and punishment as has been provided under the Indian Penal Code along with illustrations and case laws.
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