The Kerala High Court has ruled that a trial court cannot convict a person for distributing obscene videos unless the judge personally views and verifies the content. The Court stressed that the judge must ensure that the material is actually obscene before concluding guilt.
The ruling came in the case Harikumar v. State of Kerala, where Justice Kauser Edappagath set aside the conviction of a man accused of renting out video cassettes containing alleged obscene content.
Justice Edappagath noted that the trial court had convicted the accused without watching the seized cassettes. The Court clarified:
“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… Unless the Court/Judge personally views the video cassette and convinces itself of the obscenity in the content, it cannot be said that there is substantive evidence.”
The High Court explained that mere reliance on witness testimony or police reports was insufficient to establish obscenity.
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Case Background
- The case involved Harikumar, who ran a video shop in Kottayam.
- He was accused of possessing ten obscene video cassettes.
- A trial court convicted him under Section 292(2)(a), (c), and (d) of the Indian Penal Code (IPC) for sale, hire, and circulation of obscene material.
- He was sentenced to two years of simple imprisonment and a fine of ₹2,000.
- The appellate court later reduced the sentence to one year while upholding the conviction.
Harikumar challenged these decisions, arguing that the magistrate had not viewed the cassettes and instead relied only on official reports and witness statements.
The High Court emphasized that under the Indian Evidence Act, 1872, video cassettes are primary evidence. Therefore, judges must directly inspect them.
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“The direct examination of the contents of the video cassettes by the Court was necessary… Unless and until the Court views the video cassette produced by the prosecution, it cannot be said that there is substantive evidence to prove that the contents are obscene.”
The Court held that while police and witness testimonies may support findings, they cannot replace the court’s own inspection of evidence.
Since neither the trial court nor the appellate court had personally examined the cassettes, the High Court ruled that the conviction could not stand.
Case: Harikumar v. State of Kerala
