Section 294 IPC vs Section 296 BNS — Obscene Acts and Songs

In India, Section 296 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced Section 294 of the Indian Penal Code, 1860 (IPC) on 1 July 2024. The offence of an obscene act, song or words in or near a public place, to others' annoyance, is unchanged; the fine, formerly unlimited, is now capped at one thousand rupees.

At a glance

The CrPC First Schedule classified Section 294 IPC ("Obscene songs") as cognizable, bailable and triable by any Magistrate; the "Ditto" entries trace to the rows for Sections 291 (cognizable), 277 (bailable) and 282 (any Magistrate). The classification is unchanged.

What changed

• Modified — fine: Section 294 IPC read "or with fine, or with both", with no ceiling. Section 296 BNS reads "or with fine which may extend to one thousand rupees, or with both". The BNSS First Schedule row reads "Imprisonment for 3 months, or fine of 1,000 rupees, or both".
• Identical — imprisonment: "imprisonment of either description for a term which may extend to three months".
• Minor edit — punctuation: the opening "Whoever, to the annoyance of others," gains a dash, and clause (a) ends "public place; or" instead of "public place, or". No word of either clause changes.
• Identical — marginal heading: "Obscene acts and songs."
• Renumbered — neighbours: Section 292 IPC (sale of obscene books) is Section 294 BNS, and Section 293 IPC (sale of obscene objects to a "person under the age of twenty years") is Section 295 BNS, which now refers to a "child" — defined in Section 2(3) BNS as a person below eighteen years.

Statutory text (relevant extract)

Extract, Section 294 IPC (repealed from 1 July 2024):

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.

Extract, Section 296 BNS:

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 which may extend to one thousand rupees, or with both.

How it works — the ingredients

Section 296 BNS has two limbs, each with the same qualifier.

1. Annoyance of others — the opening words govern both clauses. The prosecution must show that the act or words were done "to the annoyance of others". In N. S. Madhanagopal (below), the absence of evidence that anyone was annoyed was one reason the complaint failed.
2. Clause (a): an obscene act in any public place — the act itself must be obscene and must take place in a public place.
3. Clause (b): an obscene song, ballad or words — sung, recited or uttered "in or near" a public place. Clause (b) is wider in location than clause (a): the words need only be near a public place.
4. Obscenity — neither Act defines "obscene" for this section. Section 294(1) BNS (formerly 292(1) IPC) contains a deeming test — "lascivious or appeals to the prurient interest" or tending "to deprave and corrupt" — but its opening words limit it to "the purposes of sub-section (2)" of Section 294. On a reading of the text, that test is not applied to Section 296 by its own terms; the courts have supplied the test (see the judgments below).

"Public place" is not defined in Section 296 or in the BNS definitions.

Neighbouring offences:

• Section 79 BNS (formerly 509 IPC) — a word, sound, gesture or object intended to insult the modesty of a woman; simple imprisonment up to three years and fine; cognizable and bailable.
• Section 294 BNS (formerly 292 IPC) — selling, circulating or exhibiting obscene books and objects, now including "display of any content in electronic form"; up to two years and fine up to ₹5,000 on first conviction.
• Section 295 BNS (formerly 293 IPC) — selling or showing obscene objects to a child.
• Section 352 BNS (formerly 504 IPC) — intentional insult with intent to provoke a breach of the peace; up to two years.

What this means in practice

For the complainant

• The offence is cognizable, so an FIR can be registered under Section 173 BNSS. The complaint should set out the words or act complained of and who was annoyed; Madhanagopal faulted a complaint that recorded only "unparliamentary words" without the words themselves.
• No court may take cognizance after one year: Section 514(2)(b) BNSS fixes that period of limitation for offences punishable with imprisonment not exceeding one year.

For the accused and defence advocate

• The offence is bailable, so bail is a right under the bailable-offence provisions of the BNSS.
• The case can be tried summarily: Section 283(2) BNSS lets a Magistrate, after hearing the accused and recording reasons, try summarily any offence not punishable with more than three years. Section 285(2) caps imprisonment in a summary trial at three months — the Section 296 maximum. Under the CrPC, Section 260(1)(i) allowed a Chief Judicial Magistrate, Metropolitan Magistrate or specially empowered Magistrate of the first class to do so for offences up to two years.
• The offence is not compoundable under Section 359 BNSS. The Madhya Pradesh amendment to Section 320 CrPC, which inserted Section 294 IPC in the table under Section 320(2) (compoundable with the permission of the court) in that State, by the person against whom the obscene act was done or the words were used, amended a Code that has since been repealed; we have not traced a corresponding amendment to Section 359 BNSS.
• Where the words are abusive but not sexual in character, or no one was annoyed, a petition to quash under Section 528 BNSS (formerly 482 CrPC) can rest on the ingredients above.

For the investigating officer

• Record the actual words or act, the place, and statements of the persons annoyed. A charge-sheet without those particulars does not show the ingredients of either clause.

Judgments that still matter

N. S. Madhanagopal & Anr. v. K. Lalitha, [2022] 15 S.C.R. 649 — 10 October 2022. In an order of the Court, S. Abdul Nazeer and J. B. Pardiwala JJ. considered a complaint under Sections 294(b) and 341 IPC arising from a verbal altercation among residents over waste water. The Court applied the test of whether the matter charged tends "to deprave and corrupt those whose minds are open to such immoral influences" (para 7) and held: "Mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294(b) IPC" (para 8). It added that utterance of obscene words is not sufficient without further proof that it was to the annoyance of others, which was lacking (para 8), and that issuing process requires a judicious approach to the material (para 12). It set aside the Madras High Court's order and quashed the criminal proceedings before the Judicial Magistrate, Alandur (para 13). Section 296(b) BNS repeats the words construed.

Apoorva Arora & Anr. v. State (Govt. of NCT of Delhi) & Anr., [2024] 3 S.C.R. 1147 (2024 INSC 223) — 19 March 2024. The Magistrate had directed registration of an FIR under Sections 292 and 294 IPC and Sections 67 and 67A of the Information Technology Act, 2000 against the makers of a web series over its language (para 3.2). A.S. Bopanna and Pamidighantam Sri Narasimha JJ. (judgment by Narasimha J.) held that "vulgarity and profanities do not per se amount to obscenity", and that obscenity "relates to material that arouses sexual and lustful thoughts" (para 35). It found no offence under Section 67 or 67A made out (para 48), set aside the Delhi High Court's judgment and quashed the FIR registered under Sections 67 and 67A of the IT Act (para 49). The case was decided on the IT Act, not Section 294 IPC; its distinction between vulgarity and obscenity is relevant, on a reading, to the word "obscene" that Section 296 BNS uses.

Which law applies to your case

Section 358(2) BNS keeps alive 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, an obscene act before 1 July 2024 is charged under Section 294 IPC, and cases pending on that date continue under the CrPC (Section 531(2)(a) BNSS). Article 20(1) of the Constitution bars only a penalty greater than the law in force at the time; whether the lower fine cap in Section 296 can be applied to earlier conduct is not answered by that Article or by Section 358, and we have read no judgment on it. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS equivalent of Section 294 IPC? Section 296 of the Bharatiya Nyaya Sanhita, 2023 replaces Section 294 IPC from 1 July 2024. It punishes whoever, to the annoyance of others, does any obscene act in any public place, or sings, recites or utters any obscene song, ballad or words in or near any public place. The punishment is imprisonment of either description up to three months, or fine up to one thousand rupees, or both.

Has the punishment for obscene acts changed under the BNS? Only the fine. Section 294 IPC allowed imprisonment up to three months, or fine, or both, with no limit on the fine. Section 296 BNS keeps the three-month maximum but provides a fine "which may extend to one thousand rupees".

Is Section 296 BNS a bailable offence? Yes. The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 lists Section 296 BNS as cognizable and bailable, triable by any Magistrate. The CrPC First Schedule classified Section 294 IPC the same way, so an FIR can be registered for it, and bail is a matter of right.

Are abusive or vulgar words an offence under Section 296 BNS? Not by themselves. In N. S. Madhanagopal v. K. Lalitha ([2022] 15 S.C.R. 649, para 8), the Supreme Court held that mere abusive, humiliating or defamatory words cannot attract Section 294(b) IPC and that there must also be proof that the words caused annoyance to others. Section 296(b) BNS repeats the words construed, so on a reading of the text the same limits apply.

Can a case under Section 296 BNS be compromised? Section 359 BNSS, which lists the offences that may be compounded, does not include Section 296 BNS. Section 320 CrPC did not list Section 294 IPC either, although a Madhya Pradesh amendment inserted it in the table under Section 320(2) CrPC, making it compoundable in that State, with the permission of the court, by the person against whom the obscene acts were done or the words were used.

Can an obscene-acts case be tried summarily? Yes, on the text. Section 283(2) BNSS lets a Magistrate, after giving the accused a reasonable opportunity of being heard and recording reasons, try summarily any offence not punishable with imprisonment exceeding three years. Section 296 BNS carries at most three months, and Section 285(2) BNSS caps a sentence in a summary trial at three months.

What is the time limit for prosecuting an obscene act? Under Section 514(2)(b) BNSS, no court may take cognizance of an offence punishable with imprisonment not exceeding one year after one year, subject to the rest of that Chapter. Section 296 BNS carries at most three months, so the one-year period applies. Section 468(2)(b) CrPC set the same period for Section 294 IPC.

Which law applies to an obscene act before 1 July 2024? Section 358(2) BNS saves penalties and proceedings under the IPC "as if that Code had not been repealed", so, on a reading of that provision, conduct before 1 July 2024 is charged under Section 294 IPC. Whether the lower fine cap in Section 296 BNS can benefit earlier conduct is not answered by the text of Section 358 or Article 20(1), which bars only a heavier penalty.

Related

• Section 509 IPC vs Section 79 BNS — Insulting the Modesty of a Woman
• Sexual harassment, voyeurism and stalking — IPC 354A-354D vs BNS
• Criminal intimidation and insult — IPC 503-506 vs BNS
• Summary trial threshold — BNSS 283 vs CrPC 260
• Limitation for taking cognizance — CrPC 468-473 vs BNSS
• IPC to BNS master table
• Sections 292–294A IPC vs Sections 294–297 BNS — Obscene Books and Objects, and Lottery Offices

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 2(3), 79, 294, 295, 296 and 358.
• Indian Penal Code, 1860 (India Code text): Sections 292(1), 293 and 294 (with amendment footnote).
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 283, 285, 359, 514 and 531, and the First Schedule entry for Section 296 BNS.
• Code of Criminal Procedure, 1973: Sections 260, 262, 320 (with the Madhya Pradesh amendment) and 468, and the First Schedule entry for Section 294 IPC.
• Constitution of India: Article 20(1).
• Judgments read in full text: N. S. Madhanagopal v. K. Lalitha (2022_15_649_655_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.