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Kerala High Court
Harikumar vs The State Of Kerala on 8 August, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.Rev.Pet.No. 1769 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 8TH DAY OF AUGUST 2025 / 17TH SRAVANA, 1947
CRL.REV.PET NO. 1769 OF 2006
AGAINST THE JUDGMENT DATED 20.03.2006 IN Crl.A NO.312
OF 2005 OF COURT OF SESSIONS, KOTTAYAM DIVISION ARISING OUT
OF THE JUDGMENT DATED 22/4/2005 IN ST NO.259 OF 1999 OF
JUDICIAL MAGISTRATE OF FIRST CLASS-I,KOTTAYAM
REVISION PETITIONER/APPELLANT/ACCUSED:
HARIKUMAR, S/O GOPALAN NAIR,
KUNNAKKATTU VEEDU, KOOROPPADA VILLAGE.
BY ADV SRI.M.P.MADHAVANKUTTY
RESPONDENT/RESPONDENT/STATE & COMPLAINANT:
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.SANGEETHA RAJ.N.R-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 08.08.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.Rev.Pet.No. 1769 of 2006
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"C.R."
ORDER
The revision petitioner is the sole accused in
C.C.No.259/1999 on the files of the Judicial Magistrate of
First Class-I, Kottayam (for short, the trial court). He faced
trial for the offence punishable under Section 292(2)(a), (c)
and (d) of the IPC.
2. The prosecution case, in short, is that on
13.12.1997 at 3 p.m., the accused was found in possession
for sale/hire, ten obscene video cassettes at his video shop,
namely ‘Omega Videos and Communications’ situated at
House No.4 in Ward No.II of Kuroppada Panchayat.
3. Before the trial court, PW1 to PW7 were examined
and Exts.P1 to P6 were marked. MOI series, MOII and MOIII
were identified. After trial, the trial court found that the
petitioner had committed the offence punishable under
Section 292 (2) (a), (c) and (d) of the IPC, and he was
convicted for the said offence. He was sentenced to undergo
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simple imprisonment for two years and to pay a fine of
₹2,000/-, in default to suffer simple imprisonment for three
months. The petitioner challenged the conviction and
sentence of the trial court before the Sessions Court,
Kottayam (for short, the appellate court) in
Crl.A.No.312/2005. The appellate court confirmed the
conviction but reduced the sentence to simple imprisonment
for one year and a fine of ₹1,000/-, in default to suffer simple
imprisonment for one month. This revision petition has been
filed challenging the judgments of the trial court as well as
the appellate court.
4. I have heard Sri. M.P. Madhavankutty, the learned
counsel for the petitioner and Sri. Sangeetha Raj N.R., the
learned Public Prosecutor.
5. The learned counsel for the petitioner submitted
that while judging the question of obscenity, the learned
Magistrate himself ought to have viewed the video cassettes
in question and satisfied himself that those cassettes
contained obscene motion pictures and in the absence of the
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same, the conviction based on the oral evidence of PW1,
PW2, PW4, PW6 and PW7 is not sustainable. Reliance was
placed on Abdul Rasheed v. State of Kerala (2008 (2) KHC
677). On the other hand, the learned Public Prosecutor
supported the findings and verdict handed down by the trial
court as well as the appellate court and argued that the
prosecution had succeeded in proving the case beyond a
reasonable doubt.
6. PW7 is the detecting officer. He, along with PW1
and PW2, visited the shop allegedly owned by the petitioner
on 13.12.1997 at 3 p.m. and seized ten video cassettes (MO1
series) exhibited therein for the purpose of lending to the
customers. PW7, along with PW1 and PW2, viewed the
cassettes by playing them in a television and VCR kept in the
shop and satisfied themselves that they contained several
obscene scenes. Then PW7 arrested the petitioner, and
registered Ext.P5 FIR. During the investigation, the
investigating officer gave a direction to PW4, Tahsildar, to
view MO1 series video cassettes. Accordingly, PW4 viewed all
Crl.Rev.Pet.No. 1769 of 2006
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ten cassettes and filed Ext.P2 report. PW6 Sub Inspector of
Police, Pampady, also viewed the video cassettes along with
PW4. Ext.P2 report coupled with the evidence of PW4 would
show that all the cassettes contained obscene scenes.
7. Even though the petitioner has taken up a
contention that he was neither the owner nor in any way
connected with the video cassette shop in question and that
the person arrested by PW7 was one Mr.Jacob Cherian, the
trial court as well as the appellate court negativated the said
contention. The learned counsel for the petitioner did not
canvass any argument on the said point.
8. To attract sub-section (2) of Section 292, the
prosecution has to prove that a person sells, lets to hire,
distributes, publicly exhibits or in any manner puts into
circulation or has in his possession for the purpose of sale,
hire, distribution, public exhibition or circulation any obscene
representation or object. The word ‘obscene’ is not defined
under IPC, IT Act or POCSO Act. Black’s Law Dictionary
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defines the word ‘obscene’ as “extremely offensive under
contemporary community standards of morality and decency;
grossly repugnant to the generally accepted notions of what
is appropriate”. The word ‘obscenity’ has been explained in it
as “the character or state of being morally abhorrent or
socially taboo, esp. as a result of referring to or depicting
sexual or excretory functions”. The Supreme Court has time
and again dealt with the issue of obscenity and laid down the
broad principles to judge obscenity. The Constitution Bench of
the Supreme Court in Ranjit D. Udeshi v. State of
Maharashtra [(1965) 1 SCR 65] highlighted the delicate
task to be discharged by the Courts in judging whether the
word, picture, painting, etc., would pass the test of obscenity
under Section 292 of IPC. The Court took a rather restrictive
view of what would pass muster as not being obscene. The
Court followed the ‘Hicklin test‘ laid down in the old English
judgment in Hicklin’s case (R v. Hicklin (1868) LR 3 QB
360). The test is ‘whether the tendency of the matter
charged as obscene is to deprave and corrupt those whose
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minds are open to such immoral influences and into whose
hands a publication of this sort may fall’. In Aveek Sarkar
and Another v. State of West Bengal and Others
[(2014) 4 SCC 257], the Supreme Court, while considering
the issue of obscenity and indecent representation, moved
away from the ‘Hicklin test’ and applied the ‘contemporary
community standards test’ which postulated that ‘obscenity’
should be gauged with respect to contemporary community
standards that reflect the sensibilities as well as the tolerance
levels of an average reasonable person. In Director
General, Directorate General of Doordarshan and
Others v. Anand Patwardhan and Another [(2006) 8 SCC
433] it was held that a material may be regarded as obscene
if the average person applying contemporary community
standards would find that the subject matter taken as a
whole appeals to the prurient interest and that taken as a
whole it otherwise lacks serious literary, artistic, political,
educational or scientific value. In S. Khushboo v.
Kanniammal and Another [(2010) 5 SCC 600] again, it
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was held that obscenity has to be decided in accordance with
community standards reflecting the tolerance and sensibilities
of the average reasonable person. In Devidas
Ramachandra Tuljapurkar v. State of Maharashtra and
Others [(2015) 6 SCC 1], the Supreme Court reiterated that
it is the community standard test which has to be looked into
for deciding the question of obscenity
9. A bare reading of sub-section (1) of S.292, makes
it clear that a book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other object shall be
deemed to be obscene (i) if it is lascivious; (ii) it appeals to
the prurient interest, and (iii) it tends to deprave and corrupt
persons who are likely to read, see or hear the matter,
alleged to be obscene. The word ‘any other object’ would
include the video cassette as well. Once the matter is found
to be obscene, the question may arise as to whether the
impugned matter falls within any of the exceptions contained
in the Section. Thus, to attract the offence under Section 292
of the IPC, the following ingredients must be proved namely:
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(i) the book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object is lascivious, (ii) it
appeals to the prurient interest, (iii) it tends to deprive and
corrupt persons who are likely to read/see/hear the matter
(iv) the matter does not fall within the exceptions provided in
the section and (v) the obscenity is judged from the point of
view of an average person, by applying contemporary
community standards.
10. The evidence of PWs 1, 2, 4, 6 and Ext.P2 would
prove that MO1 series of video cassettes were seized from
the shop occupied by the petitioner, and those cassettes
contained obscene materials. However, the crucial question is
whether that evidence is sufficient to convict the petitioner
under Section 292(2)(a), (c) and (d) of the IPC in the
absence of the satisfaction of the learned Magistrate himself
that the video cassettes in question contained obscene
scenes after viewing them.
11. The Indian Evidence Act, 1872, defines ‘evidence’
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in Section 3 to mean oral and documentary evidence, which
includes electronic records for the inspection of the Court.
The Information Technology Act, 2000, defines ‘electronic
record’ in Section 2(1)(t). It covers a wide range of formats
in which data can be stored. No doubt, the video cassette is
one among them. Thus, MO1 series are documents/electronic
records as defined under the Indian Evidence Act. The
obscene scenes contained in MO1 series video cassettes are
the contents of the document/electronic record.
12. 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. As per Section 62,
primary evidence means the document itself produced for
inspection of the Court. Section 65A of the Indian Evidence
Act provides that the contents of electronic records may be
proved in accordance with the provisions of Section 65B.
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Section 65B provides for the admissibility of electronic
records, without the need to provide the original, if the
electronic record (being the document) is supported with a
certificate under Section 65B (4) of the Indian Evidence Act.
However, the Supreme Court in Anvar P.V. v. P.K.Basheer
and Others [AIR 2015 SC 180] and in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal [2017 SCC OnLine
SC 1983], has held that when original of the electric record is
produced before the court, it has to be treated as a primary
evidence and the requisite certificate is unnecessary if the
original document itself is produced.
13. No doubt, MO1 series is primary evidence. The very
purpose of producing the primary evidence is to facilitate the
court to see, examine and analyse it directly. 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
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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. If such an exercise is made,
of course the evidence given by other persons who viewed
the cassette can be used for corroboration. [See Abdul
Rasheed (supra)].
14. In this case, the only issue is whether the
document/the video cassettes in question contain obscene
scenes. Therefore, 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.
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15. It is true that this Court is not supposed to re-
appreciate the evidence in a revision petition. But 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 powers vested with this Court under Section 397 r/w 401
of Cr.P.C. are inherent in nature to correct the judgments of
the trial court or the appellate court which suffers from gross
illegality. The findings in the impugned judgments of the trial
court as well as the appellate court have been arrived at by
ignoring the principles that govern reappreciation of
evidence. The entire approach of the trial court as well as the
appellate court in dealing with the evidence and law on the
point was wrong.
For these reasons, I hold that this is a fit case where the
discretionary power vested with this Court under Section 397
r/w 401 of Cr.P.C. could be exercised. Accordingly, the
criminal revision petition is allowed. The conviction and
sentence are hereby set aside. The petitioner is found not
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guilty for the offence under Section 292(2)(a), (c) and (d) of
IPC, and he is accordingly acquitted of the said offence.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp/APA
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