Kerala High Court | Conviction Under Section 292 IPC Set Aside | Judge Must Personally View Alleged Obscene Material to Constitute Substantive Evidence
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath delivered a judgment on 8 August 2025 setting aside the conviction and sentence previously imposed under Section 292(2)(a), (c), and (d) of the Indian Penal Code. The Court held that without the Magistrate personally viewing the video cassettes alleged to contain obscene scenes, the conviction could not be sustained. The Court allowed the revision petition, acquitted the accused, and directed that the conviction and sentence imposed by the trial court and confirmed by the appellate court be set aside.
The matter arose from an incident dated 13 December 1997 at 3 p.m., when the accused was alleged to have been found in possession of ten obscene video cassettes at a video shop known as Omega Videos and Communications. The shop was situated at House No.4, Ward No.II, Kooroppada Panchayat. The prosecution alleged that the accused was in possession of these cassettes for sale or hire, thereby attracting the provisions of Section 292(2)(a), (c), and (d) of the IPC.
At the trial stage, seven witnesses were examined as PW1 to PW7, and Exhibits P1 to P6 were marked. The material objects included MOI series, MOII, and MOIII, which were identified during the proceedings. The Judicial Magistrate of First Class-I, Kottayam, found the petitioner guilty of the offence under Section 292(2)(a), (c), and (d) IPC, convicting him and sentencing him to undergo simple imprisonment for two years and pay a fine of ₹2,000, with a default clause of three months’ simple imprisonment.
The accused challenged the conviction before the Sessions Court, Kottayam, in Crl.A. No. 312 of 2005. The appellate court confirmed the conviction but modified the sentence by reducing the imprisonment to one year and the fine to ₹1,000, with a default clause of one month’s simple imprisonment. The revision petition was thereafter filed before the High Court challenging both the trial and appellate court judgments.
The petitioner, represented by Advocate Sri. M.P. Madhavankutty, contended that the conviction was unsustainable as the Magistrate had not personally viewed the video cassettes alleged to contain obscene material. The petitioner relied on the precedent in Abdul Rasheed v. State of Kerala (2008 (2) KHC 677). The respondent, represented by Public Prosecutor Sri. Sangeetha Raj N.R., opposed the revision and supported the findings of the trial and appellate courts.
The prosecution case rested primarily on the testimony of PW7, the detecting officer, who along with PW1 and PW2 visited the shop on the relevant date and time. They seized the MO1 series of ten video cassettes displayed in the shop. The cassettes were played on a television and VCR in the shop, and PW7 along with PW1 and PW2 confirmed that they contained several obscene scenes. PW7 then arrested the accused and registered the First Information Report, marked as Ext.P5.
During investigation, PW4, the Tahsildar, was directed to view the MO1 series cassettes. PW4 filed Ext.P2 report after viewing them, stating that all the cassettes contained obscene content. PW6, Sub Inspector of Police, Pampady, also viewed the cassettes along with PW4. The prosecution asserted that Ext.P2 report and the testimony of PW4 corroborated the case.
The accused, however, denied any connection with the shop, contending that he was neither the owner nor otherwise associated with the premises, and further that another person, one Jacob Cherian, had been apprehended by the police. The trial and appellate courts rejected this contention, finding the petitioner to be the person in possession of the shop and responsible for the seized cassettes.
The statutory provision invoked was Section 292 IPC, which criminalizes the sale, hire, distribution, or public exhibition of obscene material. The prosecution relied on sub-section (2), clauses (a), (c), and (d), which cover selling, letting to hire, distributing, publicly exhibiting, or possessing obscene material for such purposes. The definition of “obscene” was not specified in the IPC, and reference was made to judicial interpretations of the term.
The trial and appellate courts both concluded that the prosecution had established the ingredients of the offence under Section 292 IPC. However, the petitioner maintained before the High Court that the fundamental requirement of judicial satisfaction by viewing the cassettes was not fulfilled, rendering the conviction legally untenable.
The Court examined the evidentiary requirements under the Indian Evidence Act, 1872, in relation to electronic records. It noted: “The Indian Evidence Act, 1872, defines ‘evidence’ in Section 3 to mean oral and documentary evidence, which includes electronic records for the inspection of the Court.” The Court further recorded that the Information Technology Act, 2000, defines electronic records broadly and that a video cassette falls within this definition.
Referring to the provisions of the Evidence Act, the Court observed: “Section 59 of the Indian Evidence Act lays down how a fact can be proved. It says that all facts, except the contents of documents or electronic records, may be proved by oral evidence. Section 61 of the Indian Evidence Act lays down that the contents of documents may be proved either by primary or by secondary evidence.” The Court stated that under Section 62, primary evidence refers to the document itself produced for inspection of the Court, and a video cassette produced is primary evidence.
The Court observed that MO1 series cassettes constituted primary evidence. It stated: “The very purpose of producing the primary evidence is to facilitate the court to see, examine and analyse it directly.” The Court elaborated that when a video cassette allegedly containing obscene content is produced in prosecution under Section 292 IPC, it is incumbent upon the Court to view and examine the cassettes to satisfy itself that the content is obscene.
The Court stated: “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 Court noted that in such cases, evidence from witnesses who viewed the cassettes can only serve as corroboration after the Court itself has examined the content.
The judgment also discussed precedents. In Abdul Rasheed v. State of Kerala (2008 (2) KHC 677), the principle that the Court must directly view alleged obscene content was affirmed. The Court referred to the evolution of the test of obscenity, noting the earlier adoption of the Hicklin test in Ranjit D. Udeshi v. State of Maharashtra [(1965) 1 SCR 65], which considered whether the matter tended to deprave and corrupt susceptible minds. T
The Court also cited Aveek Sarkar v. State of West Bengal [(2014) 4 SCC 257], where the Supreme Court applied the “contemporary community standards test.” Further, it referred to Director General, Directorate General of Doordarshan v. Anand Patwardhan [(2006) 8 SCC 433], where the average person’s perception and community standards were deemed crucial.
In its reasoning, the Court held that in the present case, the trial and appellate courts relied solely on the testimony of prosecution witnesses and reports without the Magistrate having personally viewed the cassettes. The Court recorded: “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 Court clarified that this determination did not amount to reappreciation of evidence but correction of a fundamental legal error. It stated: “This is not a case of re-appreciation of evidence. It is a case where the trial court as well as the appellate court, relied on the evidence which is inadmissible without substantive evidence.” The Court held that its powers under Sections 397 and 401 of the Code of Criminal Procedure could be invoked to correct judgments that suffer from gross illegality.
The Court declared: “Accordingly, the criminal revision petition is allowed. The conviction and sentence are hereby set aside. The petitioner is found not guilty for the offence under Section 292(2)(a), (c) and (d) of IPC, and he is accordingly acquitted of the said offence.”
Advocates Representing the Parties
For the Petitioners: Sri. M.P. Madhavankutty, Advocate
For the Respondents: Sri. Sangeetha Raj N.R., Public Prosecutor
Case Title: Harikumar v. State of Kerala
Neutral Citation: 2025: KER:60201
Case Number: Crl.Rev.Pet.No. 1769 of 2006
Bench: Justice Dr. Kauser Edappagath
