The Kerala High Court has issued a significant directive, stating that in criminal proceedings involving allegations of distributing obscene videos, trial court judges must personally view the video evidence to determine its obscenity. This directive aims to ensure the accuracy of charges. The court’s observation came in the context of a case where an individual was convicted for renting out video cassettes containing allegedly obscene material. The High Court noted that the lower court had convicted the accused under Section 292 of the Indian Penal Code (IPC) without viewing the video cassette or verifying its content. The court emphasized that the trial court could not make a judgment regarding the accused’s possession of obscene material and responsibility for it without examining the evidence.
The court further elaborated that when a video cassette, allegedly containing obscene scenes, is presented as evidence in a prosecution under Section 292 of the IPC, the court must assess whether the scenes are lascivious or appeal to the prurient interest, or tend to excite lust, or deprave and corrupt the viewer’s mind.
The case involved Harikumar, who operated a video shop in Kottayam. He was accused of possessing ten obscene video cassettes. Following the seizure of the cassettes, the trial court found the accused guilty under sections 292(2)(a), (c), and (d) of the Indian Penal Code (IPC). The accused was sentenced to two years imprisonment and a fine of 2,000 rupees. The court later reduced the sentence to one year and maintained the fine. Challenging these orders, Harikumar filed a review petition in the High Court, arguing that the magistrate had not viewed the actual content of the video cassettes alleged to contain obscene material. The case relied solely on eyewitness testimonies and investigation reports, without considering the video content. The High Court clarified that video cassettes are considered primary evidence under the provisions of the Indian Evidence Act, 1872. The court ruled that direct examination of the cassette by the court is mandatory when a video cassette is claimed to contain obscene content. The High Court clarified that the testimony of police officers and other witnesses can confirm certain findings, but it cannot substitute the direct examination that must be conducted by the court. The court concluded that Harikumar’s conviction could not be considered legally sustainable, as neither the lower court nor the appellate court had examined the cassettes themselves. Consequently, Harikumar’s conviction and sentence were quashed.
