[S.292 IPC] Courts Must View Video In Obscenity Case To Verify Allegations: Kerala High Court
The Kerala High Court has overturned the conviction of a man accused of possessing and distributing obscene video cassettes, holding that the trial court failed in its duty to directly verify the material evidence before finding him guilty.Dr. Justice Kauser Edappagath, allowing the criminal revision petition, set aside the orders of both the Judicial Magistrate Court, Kottayam, and the...
The Kerala High Court has overturned the conviction of a man accused of possessing and distributing obscene video cassettes, holding that the trial court failed in its duty to directly verify the material evidence before finding him guilty.
Dr. Justice Kauser Edappagath, allowing the criminal revision petition, set aside the orders of both the Judicial Magistrate Court, Kottayam, and the Sessions Court, Kottayam.
The case dated back to 1997, when police raided Omega Videos and Communications and seized ten cassettes said to contain obscene scenes. The petitioner was charged under Section 292(2)(a), (c), and (d) of the Indian Penal Code, which criminalises the sale and circulation of obscene material.
The trial court convicted him in 2005, sentencing him to two years' imprisonment and a fine of ₹2,000. The appellate court reduced the sentence but confirmed the conviction.
In his revision petition, the petitioner argued that the trial court had relied solely on the oral testimony of police officers and a Tahsildar who viewed the cassettes, but had not examined the cassettes itself.
The High Court agreed, stressing that when primary evidence like a video cassette is produced, the court must personally view and assess its contents to decide whether it is obscene.
“When a video cassette which allegedly contains obscene scenes is produced in a prosecution under Section 292 of IPC, the Court must view and examine the said cassette to convince itself that it contains obscene scenes which is lascivious or appeals to the prurient, lewd, lecherous, lustful or satyric instincts of the viewer.” the Court observed.
“Unless the Court/Judge personally views the video cassette and convinces itself of the obscenity in the content, it cannot be said that there is substantive evidence before the Court,” the Court noted. He added that without such verification, reliance on witnesses' descriptions alone was insufficient to sustain a conviction.
The Court also noted that obscenity must be judged according to contemporary community standards, citing Supreme Court precedents, but reiterated that such a judgment cannot be made without the trial court first engaging with the material itself.
Finding that both the trial and appellate courts had ignored this fundamental requirement, the High Court acquitted the petitioner of all charges.
Case Title: Harikumar v State of Kerala
Citation: 2025 LiveLaw (Ker) 531
Case No: Crl. Rev 1769/ 2006
Counsel for Petitioner: M P Madhavankutty
Counsel for Respondent: Sangeetha Raj N R (PP)
Click Here To Read/ Download Judgment