Courts Must View CDs, Videos Themselves Before Convicting For Obscenity: Kerala High Court Acquits Man
The Kerala High Court recently reversed a concurrent finding of guilt of a man, who was convicted under Section 292 IPC for the sale of obscene CDs in his shop. [2026 LiveLaw (Ker) 578]Justice Jobin Sebastian relied on the decision in Harikumar v. State of Kerala and held that conviction based solely on the testimony of the investigating officer is not valid since the trial court did...
The Kerala High Court recently reversed a concurrent finding of guilt of a man, who was convicted under Section 292 IPC for the sale of obscene CDs in his shop. [2026 LiveLaw (Ker) 578]
Justice Jobin Sebastian relied on the decision in Harikumar v. State of Kerala and held that conviction based solely on the testimony of the investigating officer is not valid since the trial court did not independently verify whether the contents were obscene.
“In the present case, there is no material on record to show that the learned Magistrate had personally viewed or examined the contents of the CDs and video cassettes. Further, there is no finding based on an independent examination by the trial court as to how the contents satisfied the statutory test of obscenity contemplated under Section 292 of the IPC. The mere opinion of the investigating officer that the materials were obscene, without any supporting description or judicial examination of their contents, is insufficient to establish the essential ingredients of the offence beyond reasonable doubt,” the Court opined.
The prosecution allegation was that the accused/petitioner, with the intent to make unlawful gain, sold obscene video cassettes and CDs in his video shop. He was accused on Section 292 IPC.
The trial court found him guilty and sentenced him to six months' simple imprisonment as well as of fine of Rs. 1000. He filed appeal before the Additional Sessions Court, which confirmed the sentence and conviction. Aggrieved, he approached the High Court by preferring a revision petition.
The amicus curiae pointed out that the prosecution failed to prove the ingredients of Section 292 IPC. There is no evidence to establish that the CDs and cassettes contained obscene materials, it was contended.
The public prosecutor argued that the impugned judgments on concurrent findings of guilt ought not be interfered with.
After hearing the parties, the Court examined the ingredients of the provision and remarked that for an object to be considered as 'obscene', it must be shown to be lascivious or to appeal to prurient interest or that its effect, taken as a whole, would tend to deprave and corrupt persons likely to see, hear or read the material.
“Significantly, the trial court has not undertaken any discussion as to how the contents of the CDs and video cassettes satisfied the statutory requirements of being lascivious, appealing to prurient interest, or tending to deprave and corrupt persons who were likely to view them… before recording a conviction under Section 292 of the IPC, the court must itself be satisfied that the contents constitute obscenity. Unless the trial judge directly examines the contents of the video cassettes or CDs alleged to contain obscene scenes and records a finding, based on such examination, that the contents are obscene, a conviction under Section 292 of the IPC cannot be sustained,” it added.
Thus, it allowed the revision petition and acquitted the petitioner.
Counsel for the petitioner: P.B. Asokan, R. Vinu Raj
Counsel for the respondent: Tanya Joy – Public Prosecutor
Amicus Curiae: Rahul Sunil