In obscene video cases, trial judge should watch and verify the video: Kerala High Court

The Kerala High Court recently observed that during criminal trials against persons booked for distributing obscene videos, the trial judge is expected to personally view any video evidence produced to verify if such content is actually obscene as alleged [Harikumar v State of Kerala].

Justice Kauser Edappagath made the observation while setting the conviction of a man who was accused of renting out video cassettes that contained obscene content.

The High Court noted that the trial court had convicted him for obscenity under Section 299 (sale and distribution of obscene material) of the Indian Penal Code (IPC) without first viewing the content of the video cassettes cited as evidence or verifying that such content was indeed obscene.

It concluded that the trial court could not have concluded that the accused man was guilty of possessing obscene content without actually carrying out such verification.

"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 High Court held.

The case before the Court concerned one, Harikumar, who operated a video shop in Kottayam and was accused of possessing ten obscene video cassettes.

Following the seizure of the cassettes, a trial court convicted him under Section 292 (2) (a), (c), and (d) (sale, hire, and circulation of obscene material) of the IPC.

He was sentenced to two years of simple imprisonment with a fine of ₹2,000. An appellate court later reduced the punishment to one year imprisonment and a fine of ₹2,000, while affirming the conviction.

Challenging these orders, Harikumar approached the High Court through a revision petition and argued that the magistrate never viewed the contents of the cassettes alleged to have obscene materials. Rather, he argued that the trial only relied on witness testimony and reports from officials who examined the material.

The High Court noted that under the Indian Evidence Act, 1872, video cassettes constituted primary evidence.

It held that unless the trial court personally examines the video cassettes and forms an independent opinion on whether they had obscene content, there would be no substantive evidence to support a conviction for obscenity.

"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 ruling said.

The High Court held that while testimonies of police officers and other witnesses could corroborate findings, they cannot substitute the court's own inspection of such evidence as required by law.

Since neither the trial court nor the appellate court had directly viewed the content of the cassettes, the Court concluded that Harikumar's conviction was legally unsustainable.

Consequently, the criminal revision petition was allowed, and Harikumar's conviction and sentence was set aside.

Advocate MP Madhavankutty appeared for Harikumar.

Public prosecutor Sangeetha Raj NR appeared for the State.

[Read Order]