The Kerala High Court ruled that trial judges must watch video evidence themselves in obscenity cases. Conviction cannot be based only on witness statements or police reports without verifying the videos.
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KOCHI: The Kerala High Court made an important observation in a criminal case related to obscene video cassettes. The Court said that whenever a person is booked for distributing obscene videos, the trial court judges must personally watch the videos to confirm if they are really obscene before giving any conviction.
Justice Kauser Edappagath made this observation while setting aside the conviction of a man, Harikumar, who was earlier found guilty of renting out video cassettes that allegedly contained obscene content.
The Court found that the trial court had wrongly convicted him under Section 292 of the Indian Penal Code (IPC), which deals with the sale and circulation of obscene material, without even checking the video cassettes.
The High Court strongly noted that it was not possible for the trial court to conclude that the accused was guilty of obscenity without verifying the content.
The Court said:
“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. In other words, unless the Court/Judge personally views the video cassette and convince itself the obscenity in the content, it cannot be said that there is substantive evidence before the Court to render a finding that offence under Section 292 is attracted.”
The case was about Harikumar, who was running a video shop in Kottayam. He was accused of keeping ten video cassettes with obscene content.
The police seized these cassettes and a trial court convicted him under Section 292(2)(a), (c), and (d) IPC, which cover sale, hire, and circulation of obscene material.
He was sentenced to two years of simple imprisonment and fined Rs 2,000. Later, an appellate court reduced the sentence to one year imprisonment with the same fine but upheld the conviction.
Harikumar then filed a revision petition before the High Court. He argued that the magistrate never watched the cassettes. Instead, the trial only relied on witness statements and police reports.
The High Court pointed out that under the Indian Evidence Act, 1872, such video cassettes are considered primary evidence. It explained that without personally examining the cassettes, the trial court could not have come to a fair conclusion about obscenity.
The Court further said:
“The direct examination of the contents of the video cassettes by the Court was necessary to prove that the video cassettes contained obscene materials. Unless and until the Court views the video cassette produced by the prosecution for its inspection as contemplated under Section 61 of the Indian Evidence Act, it cannot be said that there is substantive evidence to prove that the contents in the video cassette are obscene in nature.”
The High Court clarified that while statements of police officers and witnesses may help in the case, they cannot replace the judge’s own duty to watch and verify the content as per law. Since neither the trial court nor the appellate court had watched the cassettes, the High Court decided that Harikumar’s conviction could not be legally sustained.
As a result, the Court allowed Harikumar’s revision petition and set aside both his conviction and punishment.
Explanatory Table of All Laws & Sections Mentioned
| Law / Section | What It Says (Simple Explanation) | How It Was Used in This Case |
|---|---|---|
| Indian Penal Code (IPC) – Section 292 | Deals with sale, hire, distribution, and public circulation of obscene material. Any material that is “lascivious” or “appeals to prurient interest” is punishable. | Harikumar was charged under this section for keeping and renting out 10 obscene video cassettes. |
| IPC – Section 292(2)(a) | Specifically covers sale of obscene material. | Trial court convicted him for allegedly selling such videos. |
| IPC – Section 292(2)(c) | Covers distribution, public exhibition, or circulation of obscene material. | Applied because the cassettes were allegedly given for circulation. |
| IPC – Section 292(2)(d) | Covers keeping obscene material for hire (like renting). | He was accused of renting out obscene cassettes, so this clause was used. |
| Indian Evidence Act, 1872 – Section 61 | States that contents of documents (or evidence like videos) must be proved either by primary evidence (original) or secondary evidence (copies, when originals are not available). | The High Court held that video cassettes are primary evidence, so the judge must personally watch them to decide if they are obscene. |
| IPC – Section 299 (mentioned in report, but contextually incorrect) | Section 299 of IPC actually defines culpable homicide (not obscenity). Likely a clerical mistake in reporting; the correct section is 292 IPC. | The High Court clarified conviction should only be under Section 292 IPC, not 299. |
- Advocate MP Madhavankutty represented Harikumar in the case.
- Public Prosecutor Sangeetha Raj NR appeared for the State.
CASE TITLE:
Harikumar vs State of Kerala
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