Sections 292–294A IPC vs Sections 294–297 BNS — Obscene Books and Objects, and Lottery Offices

In India, Sections 294, 295 and 297 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced Sections 292, 293 and 294A of the Indian Penal Code, 1860 (IPC) from 1 July 2024. The obscenity definition now reaches electronic content, fines are higher, and the young-person offence now protects children below eighteen instead of persons under twenty.

At a glance

The CrPC First Schedule classified Sections 292 and 293 IPC as cognizable, bailable and triable by any Magistrate (the "Ditto" entries trace to the Section 291 and Section 277 rows), and Section 294A in both its parts as non-cognizable, bailable and triable by any Magistrate. The classification of each offence is therefore unchanged.

What changed

Section 294 BNS (IPC 292)

• Expanded — sub-section (1): "figure or any other object, shall be deemed to be obscene" becomes "figure or any other object, including display of any content in electronic form shall be deemed to be obscene". The three limbs of the test — lascivious, appeals to the prurient interest, or tends to deprave and corrupt persons likely to read, see or hear the matter — are the same words.
• Expanded — clause (2)(a): the list of obscene things ends "any other obscene object whatsoever in whatever manner"; the IPC ended at "whatsoever".
• Minor edit — clause (2)(c): the list "made, produced, purchased" is printed "made produced, purchased" in both the Gazette and the India Code BNS text; clause separators change from "or" after a comma to "; or".
• Modified — punishment: the imprisonment terms are the same (up to two years on first conviction; up to five years on a second or subsequent conviction). The fine on first conviction rises from "two thousand rupees" to "five thousand rupees", and on a later conviction from "five thousand rupees" to "ten thousand rupees".
• Minor edit — Exception: the same four exclusions (public good in the interest of science, literature, art or learning or other objects of general concern; bona fide religious use; representations on ancient monuments within the Ancient Monuments and Archaeological Sites and Remains Act, 1958; representations in temples, on idol cars or kept for religious purposes), with "; or" separators and the Act number moved to the margin.

Section 295 BNS (IPC 293)

• Modified — protected person: "to any person under the age of twenty years" becomes "to any child". Section 2(3) BNS defines "child" as "any person below the age of eighteen years". On a reading of the text, the offence no longer covers persons aged eighteen or nineteen.
• Minor edit — cross-reference: "as is referred to in the last preceding section" becomes "as is referred to in section 294". The heading changes from "to young person" to "to child".
• Identical — punishment: three years and ₹2,000 on first conviction; seven years and ₹5,000 on a later conviction.

Section 296 BNS (IPC 294): the offence is the same; the previously unlimited fine is capped at one thousand rupees. It is covered on its own page.

Section 297 BNS (IPC 294A)

• Minor edit — structure: the two paragraphs of Section 294A become sub-sections (1) and (2); "And whoever publishes" becomes "(2) Whoever publishes", and "or forbear doing anything" becomes "or forbear from doing anything".
• Identical — sub-section (1): the carve-out "not being a State lottery or a lottery authorised by the State Government" and the punishment (six months, or fine, or both) are unchanged.
• Modified — sub-section (2): the fine for publishing a lottery proposal rises from "one thousand rupees" to "five thousand rupees".

Statutory text (relevant extract)

Extract, Section 292(1) IPC (repealed from 1 July 2024):

… 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 …

Extract, Section 294(1) BNS:

… a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, including display of any content in electronic form shall be deemed to be obscene if it is lascivious or appeals to the prurient interest …

Extract, Section 295 BNS:

Whoever sells, lets to hire, distributes, exhibits or circulates to any child any such obscene object as is referred to in section 294, or offers or attempts so to do, shall be punished …

Extract, Section 297(2) BNS:

… shall be punished with fine which may extend to five thousand rupees.

How it works — the ingredients

1. Is the material obscene? (Section 294(1)) — the deeming provision applies "for the purposes of sub-section (2)". The material is obscene if any one of three things is true: it is lascivious; it appeals to the prurient interest; or its effect — or, where it has two or more distinct items, the effect of any one of them — taken as a whole, tends to deprave and corrupt persons who are likely, "having regard to all relevant circumstances", to read, see or hear it. Aveek Sarkar (para 24, below) numbers them (i) to (iii).

2. Did the accused deal with it in a prohibited way? (Section 294(2)) — any one of five clauses:

• (a) selling, letting to hire, distributing, publicly exhibiting or putting into circulation, or making, producing or possessing for any of those purposes;
• (b) importing, exporting or conveying for those purposes, or knowing or having reason to believe it will be sold, hired, distributed, exhibited or circulated;
• (c) taking part in or receiving profits from a business in which he knows or has reason to believe obscene objects are dealt with for those purposes;
• (d) advertising that any person is engaged or ready to engage in an offence under the section, or that an obscene object can be procured from or through any person;
• (e) offering or attempting to do any act that is an offence under the section.

3. Does the Exception apply? — the section "does not extend to" material whose publication is "proved to be justified as being for the public good" in the interest of science, literature, art or learning or other objects of general concern; material kept or used bona fide for religious purposes; and representations on ancient monuments, in temples, on idol cars or kept for religious purposes.

Section 295 adds one element to clause 2: the recipient is a child. It covers selling, letting to hire, distributing, exhibiting or circulating "to any child", and offering or attempting to do so.

Section 297 has two offences. Sub-section (1) is keeping "any office or place for the purpose of drawing any lottery" that is neither a State lottery nor authorised by the State Government. Sub-section (2) is publishing a proposal "to pay any sum, or to deliver any goods, or to do or forbear from doing anything for the benefit of any person" on any event or contingency relating to the draw of any ticket, lot, number or figure "in any such lottery" — that is, an unauthorised one.

What this means in practice

For the complainant and the investigating officer

• Sections 294(2), 295 and 296 are cognizable, so information about them is recorded as an FIR and the police may arrest without warrant. Section 297(1) and (2) are non-cognizable: under Section 174(1) BNSS the officer enters the substance of the information and refers the informant to the Magistrate, and under Section 174(2) no police officer may investigate without the order of a Magistrate having power to try the case.
• Section 97(2)(f) BNSS lists "obscene objects referred to in section 294" among the objectionable articles for which a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may issue a warrant to search a place, as Section 94(2)(f) CrPC did for Section 292 IPC.
• Section 98(1) BNSS lets the State Government, by notification stating its grounds, declare forfeited every copy of a newspaper, book or document containing matter whose publication is punishable under Section 294 or 295 BNS (among other sections). Section 95(1) CrPC had the same power for Sections 292 and 293 IPC.

For the accused and the defence advocate

• All the offences on this page are bailable, and none appears in the compounding tables in Section 359 BNSS (nor were Sections 292, 293 and 294A IPC listed in Section 320 CrPC as enacted). They cannot be compounded.
• The contest is framed by the three statutory limbs and the Exception. The Exception places the burden in its own words: the public-good justification must be "proved".
• For a publisher or seller, Udeshi (below) holds that knowledge of the obscenity is not an ingredient of the offence, but the prosecution must prove the sale or keeping for sale.
• For Section 295, the age of the recipient is now an element under the BNS definition of "child"; on a reading of the text, a recipient aged eighteen or nineteen is outside Section 295, though the dealing may still fall under Section 294.

After conviction

• Under Section 501(1) BNSS, on a conviction under Section 294 or 295 BNS the court may order the destruction of all copies of the thing in its custody or in the possession or power of the convicted person, as Section 455(1) CrPC allowed for Sections 292 and 293 IPC.
• Section 127(1)(ii) BNSS lets an Executive Magistrate require a bond for good behaviour, "for such period, not exceeding one year", from a person who makes, publishes, sells or otherwise puts into circulation "any obscene matter such as is referred to in section 294", as Section 108(1)(ii) CrPC did.

Judgments that still matter

Ranjit D. Udeshi v. State of Maharashtra, [1965] 1 S.C.R. 65 (1964 INSC 171) — 19 August 1964. A five-Judge Bench (judgment delivered by Hidayatullah J.) dismissed a bookseller's appeal against his conviction under Section 292 IPC for selling an unexpurgated edition of Lady Chatterley's Lover. It held that Section 292 is valid as a restriction in the interest of public decency and morality under Article 19(2) (report p. 71). It held that the section did not make knowledge of obscenity an ingredient of the offence: "Under our law absence of such knowledge, may be taken in mitigation but it does not take the case out of the sub-section" (p. 71 F); the sale or keeping for sale still had to be proved (p. 71 G). It declined to discard the Hicklin test of a tendency to deprave and corrupt (p. 75 F), and said that where obscenity and art are mixed, "art must so preponderate as to throw the obscenity into a shadow" (p. 77 A). The case was decided before Act 36 of 1969 inserted the deeming definition now in Section 294(1) BNS.

Samaresh Bose & Anr. v. Amal Mitra & Anr., [1985] Supp. 3 S.C.R. 17 (1985 INSC 205) — 24 September 1985. R.S. Pathak and Amarendra Nath Sen JJ. (judgment by Sen J.) set aside the conviction of the author and the publisher of the Bengali novel Prajapati under Section 292 read with Section 109 IPC and acquitted them (report p. 54 A). The Court said the judge should first place himself in the position of the author, then in the position of "a reader of every age group in whose hands the book is likely to fall", and then assess objectively the book as a whole and the passages complained of (p. 48 D). It held: "A vulgar writing is not necessarily obscene" — vulgarity arouses disgust, while obscenity tends to deprave and corrupt (p. 52 C).

Aveek Sarkar & Anr. v. State of West Bengal & Ors., [2014] 2 S.C.R. 263 — 3 February 2014. K.S. Radhakrishnan and A.K. Sikri JJ. (judgment by Radhakrishnan J.) set aside criminal proceedings under Section 292 IPC against the editor, publisher and printer of a newspaper circulating in Kolkata and the editor of a sports magazine that reprinted a photograph of a tennis player and his fiancée. The Court said the Hicklin test "is not the correct test" and applied the "community standard test", setting out the three limbs of sub-section (1) (para 24). It held that obscenity "has to be judged from the point of view of an average person, by applying contemporary community standards" (para 24), found no offence under Section 292 (para 31) and allowed the appeal (para 32).

Apoorva Arora & Anr. Etc. v. State (Govt. of NCT of Delhi) & Anr., [2024] 3 S.C.R. 1147 (2024 INSC 223) — 19 March 2024. A.S. Bopanna and Pamidighantam Sri Narasimha JJ. (judgment by Narasimha J.) set aside a High Court judgment in a web-series case and quashed the FIR registered under Sections 67 and 67A of the Information Technology Act, 2000 (para 49). Relying on the Section 292 IPC case law (paras 12 onward), it held that the enquiry "does not hinge on whether the language or words are decent, or whether they are commonly used in the country" but on whether the content is lascivious, appeals to prurient interest, or tends to deprave and corrupt (para 34), and that profanity is not per se obscene (para 35). The Court applied these principles to IT Act offences; the definition it construed is the one Section 294(1) BNS repeats.

Why these still matter: the operative words of Section 292(1) and (2) IPC — lascivious, prurient interest, tendency to deprave and corrupt, the five kinds of dealing and the Exception — are repeated in Section 294 BNS. On a reading of the text, judgments construing those words remain relevant. None of these judgments construes the new words "including display of any content in electronic form".

Which law applies to your case

Section 358(2) BNS saves any penalty or punishment incurred under the IPC and lets proceedings be instituted, continued or enforced "as if that Code had not been repealed"; on a reading of that provision, conduct before 1 July 2024 is charged under Sections 292, 293 or 294A IPC. Procedure in matters pending on that date continues under the CrPC (Section 531(2)(a) BNSS). Article 20(1) of the Constitution bars "a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence"; on a reading of that Article, the higher BNS fines cannot be imposed for earlier conduct. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS equivalent of Section 292 IPC? Section 294 of the Bharatiya Nyaya Sanhita, 2023 replaces Section 292 IPC. Sub-section (1) keeps the deeming definition of obscene material and adds "display of any content in electronic form"; sub-section (2) keeps the five kinds of prohibited dealing. The imprisonment terms are unchanged (two years on first conviction, five years on a later one) but the fines rise to five thousand and ten thousand rupees.

Does Section 294 BNS cover online and electronic content? Yes. Section 294(1) BNS deems "any other object, including display of any content in electronic form" obscene if it is lascivious, appeals to the prurient interest, or tends to deprave and corrupt likely readers or viewers. Section 292(1) IPC ended at "any other object" and did not mention electronic content.

What is the age limit in Section 295 BNS? Section 295 BNS punishes selling, hiring out, distributing, exhibiting or circulating an obscene object to "any child", and Section 2(3) BNS defines a child as any person below the age of eighteen years. Section 293 IPC protected any person under the age of twenty years, so persons aged eighteen and nineteen fall outside Section 295. The punishments are unchanged.

Is selling obscene material a bailable offence under the BNS? Yes. The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 lists Section 294(2) and Section 295 BNS as cognizable, bailable and triable by any Magistrate. The CrPC First Schedule classified Sections 292 and 293 IPC the same way, so the classification has not changed.

Is running a lottery office an offence under the BNS? Section 297(1) BNS punishes keeping an office or place for drawing a lottery that is not a State lottery or a lottery authorised by the State Government, with imprisonment of either description up to six months, or fine, or both. Section 297(2) punishes publishing a proposal to pay or deliver anything on an event relating to the draw in such a lottery, with fine up to five thousand rupees. Both offences are non-cognizable and bailable.

Is the seller's knowledge of obscenity an ingredient of the offence? In Ranjit D. Udeshi v. State of Maharashtra, [1965] 1 S.C.R. 65, the Supreme Court held that Section 292 IPC did not make knowledge of obscenity an ingredient, and that absence of knowledge may be taken in mitigation only. The prosecution still had to prove the sale or keeping for sale. Section 294(2) BNS repeats the relevant words, so on a reading of the text the reasoning remains relevant.

Is vulgar or profane language obscene under Section 294 BNS? Not by that fact alone. In Samaresh Bose v. Amal Mitra the Supreme Court held that a vulgar writing is not necessarily obscene, and in Apoorva Arora v. State (NCT of Delhi) (2024 INSC 223) it held that the enquiry under Section 292 IPC does not turn on whether words are decent. The test is whether the material is lascivious, appeals to prurient interest, or tends to deprave and corrupt.

Which law applies to an obscenity offence committed before 1 July 2024? Section 358(2) BNS lets proceedings for offences under the IPC be instituted or continued as if that Code had not been repealed, so on a reading of that text earlier conduct is charged under Sections 292, 293 or 294A IPC. Article 20(1) of the Constitution bars a penalty greater than the law in force when the offence was committed; on a reading of that Article, the higher BNS fines cannot be imposed for earlier conduct.

Related

• Obscene acts and songs: IPC 294 vs BNS 296
• Public nuisance: IPC 268, 290-291 vs BNS 270, 292-293
• Section 482 CrPC — inherent powers of the High Court
• Offence before 1 July 2024 — which law applies
• IPC to BNS master table
• Sections 453–459 CrPC vs Sections 499–505 BNSS — Innocent Purchaser, Appeals, Destruction, Restoration of Possession and Unclaimed Seized Property
• Sections 106–110 CrPC vs Sections 125–129 BNSS — Security for Keeping the Peace and for Good Behaviour

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 2(3), 294, 295, 296, 297 and 358.
• Indian Penal Code, 1860 (India Code text): Sections 292, 293, 294 and 294A with their amendment footnotes and the printed Orissa amendment.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 97, 98, 127, 174, 359, 501 and 531, and the First Schedule entries for Sections 294(2), 295, 296, 297(1) and 297(2) BNS.
• Code of Criminal Procedure, 1973: Sections 94, 95, 108, 320 and 455, and the First Schedule entries for Sections 292, 293, 294 and 294A IPC.
• Constitution of India: Article 20(1).
• Judgments read in full text: Ranjit D. Udeshi v. State of Maharashtra (1965_1_65_81_EN.md); Samaresh Bose v. Amal Mitra (S_1985_3_17_54_EN.md); Aveek Sarkar v. State of West Bengal (2014_2_263_286_EN.md); Apoorva Arora v. State (Govt. of NCT of Delhi) (2024_3_1147_1180_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.