Legal provisions regarding Obscene act and songs under section 294 of Indian Penal Code, 1860.
The offence under Section 294 is cognizable and warrant should ordinarily issue in first instance. It is bailable but not compoundable and is triable by any Magistrate summarily.
The word ‘obscene’ has not been wisely defined in the Penal Code inasmuch as notions about obscenity are found to change from time to time and depend considerably upon the class of persons whose susceptibility in the matter is involved. Filthy abuses are not per se obscene within the meaning of Section 294, IPC.
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Uttering words in a private place such as in a garden does not constitute an offence under Section 294.
The obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with mental condition, has often to be inferred from proved facts.
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Where a person addresses openly girls belongs to respectable families who are stranger to him, in amorous words suggestive of illicit sex relations with them and asked them to go along with him on his rickshaw or motor cycle, his action is considered as an obscene act.
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Performance of Cabaret dance devoid of nudity and obscenity according to Indian social standards in hotels and restaurants is not liable to be banned or prevented under Section 294 as they are private places.
However, in Narender H Khurana & others v. Commissioner of Police & Another, [(2004) CrLJ 3393 (Bom)], it has been ruled that an enclosed area in a posh hotel where cabaret dance is performed cannot be said to be a private place merely by reason that entry is restricted to persons purchasing the highly priced tickets and where costly food and drinks are served.
However, it endorsed the earlier dictum of the high court that cabaret dances, where indecent and obscene act per se is involved, cannot attract provisions of Section 294 unless and until such an obscene act has actually ‘annoyed’ any of the persons who ‘witnessed’ such show.