Criminal Revision Petition No. 615 of 2000 · Kerala High Court · 2007

Crl.R.P. No. 615 of 2000-:3:-simple imprisonment for one month. Eventhough the revisionpetitioner preferred an appeal before the Sessions Court as CriminalAppeal No. 218 of 1998, the same was dismissed confirming theconviction entered and the sentence passed, as per judgment dated31-5-2000. Hence, this Revision.6.The learned counsel appearing for the revision petitionermade the following submissions in support of the Revision:-The charge which does not specify the representation which isallegedly obscene and which therefore does not reveal the obscenity,is defective and groundless. The prosecution has failed to prove thatthe accused was either the owner or occupier of the shop room inquestion. The said fact could have been proved by producing theoccupancy register kept by the Methala Panchayath. No attempt hasbeen made to prove the same. There is no evidence to show that MO1video cassette was meant for hire , public exhibition or distribution orcirculation. P.W.5 the said Inspector has no case that time ofdetection the cassette was being exhibited or being circulated amongthe public. Mere possession of an obscene cassette cannot by itselfattract the offence punishable under clause (a) or (b) of Section 292(2) I.P.C. Vide Moidu v. State of Kerala - 1989 (2) KLT 809. Theobject of the cassette is to eradicate the evils of prostitution and aids Crl.R.P. No. 615 of 2000-:4:-and is, therefore, of medical educational value for which video is amedium for expression. Hence, the cassette will not come within thepurview of Sec. 292 I.P.C. Vide 1989 Crl. L.J. 1241. For judgingthe question of obscenity the judge in the first place who try to placehimself in the position of the author and examine the matter from theperspective of the author after going through the entire work . Thenonly it can be decided whether the work in question is obscene ornot. (Vide 1986 Crl. L.J. 24 SC). The conviction recorded by thecourts below overlooking these vital aspects cannot be sustained.7.I am afraid that I cannot agree with the abovesubmissions. P.W.1 (Raveendran) is a person running a stationarystop hear “Ikkas Videos” at T.K.S. Puram. He is an attester to Ext.P1search list prepared by P.W.5. He, however, turned hostile to theprosecution by deposing that he did not see the police seizing anyblue film cassette from Ikkas Videos. P.W.2 (Siddhiqe) is a personconducting a ready made shop near Ikkas Videos. He was cited as aneye witness to the search and seizure. However, he also turnedhostile to the prosecution. P.W.3 (Subramonian) was cited as anotherwitness to the search and seizure of the video cassette in question.He also turned hostile to the prosecution. P.W.4 (Raju) was a policeconstable who accompanied the Sub Inspector of Police, Kodungallur Crl.R.P. No. 615 of 2000-:5:-on law and order patrol duty on 22-9-1996. He supported theprosecution. P.W.5 (Renjan) was the Sub Inspector of Police,Kodungallur who detected the offence. He proved Ext.P1 search list ,Ext.P2 search memorandum and Ext.P3 F.I.R. He also proved MO1video casset seized under Ext.P1 search list.8.It is true that P.Ws 1 to 3 who are the independentwitnesses to the search and seizure of MO1 Video Cassette turnedunfriendly to the prosecution. But then such independent witnessesturning disloyal to the prosecution is not a novel phenomenon.Courts are not unfamilar with such such dishonest persons who areprepared to mortgage their conscience with a view to salvage theirbusiness compatriots. Courts very often come across such witnesswho turned out to be cunning performers in the witness box. Thehostility exhibited by such witnesses cannot through overboard aprosecution which is otherwise true and genuine. If the testimony ofthe official witnesses is blemishless and free from suspicion, theattitude shown by ill-activated independent witnesses is of noconsequence. (Vide Sivaraman v. State of Kerala - 1981 KLHSN.10). 9.Going by the credible testimony of P.Ws 4 and 5 it hasbeen clearly established that the accused was conducting the business Crl.R.P. No. 615 of 2000-:6:-of letting on hire video and audio cassettes kept for hire in the shopby name “Ikkas Videos”. P.W.5 took MO1 cassette name “have a niceday” from the racks and played it on the cassette player and viewedthe same in the T.V. Monitor to find a man and woman completelynaked indulging in carnal intercourse in various postures in a mannerappealing to the lascivious and prurient interest of the viewer andtending to deprive and corrupt persons who were likely to see thematter embodied in the video cassette. P.W.5 seized the cassetteunder Ext.P1 search list in which he has described what he hasviewed.10.To attract Sec. 292 I.P.C. reads as follows:“[292. Sale, etc, of obscene books etc. (1) For thepurposes of sub-section (2), a book, pamphlet, paper,writing, drawing, painting, representation, figure or anyother object, shall be deemed to be obscene if it islascivious or appeals to the prurient interest or if its effect,or (where it comprises two or more distinct items), theeffect of any one of its items, is, if taken as a whole, suchas to tend to deprave and corrupt person, who are likely,having regard to all relevant circumstances, to read, see orhear the matter contained or embodied in it].[(2)] Whoever - (a) Sells, lets to hire, distributes, publicly exhibits or inany manner puts into circulation, or for purposes ofsale, hire, distribution, public exhibition orcirculation, makes produces or has in hispossession any obscene book, pamphlet, paper,drawing, painting representation or figure or anyother obscene object whatsoever, or(b) imports, exports or conveys any obscene object Crl.R.P. No. 615 of 2000-:7:-for any of the purposes aforesaid, or knowing orhaving reason to believe that such object will besold, let to hire distributed or publicly exhibited orin any manner put into circulation, or(c ) takes part inn or receives profits from any businesssin the course of which he knows or has reason tobelieve that any such obscene objects are for anyof the purposes aforesaid, made, produced,purchased, kept, imported, exported, conveyed,publicly exhibited or in any manner put intocirculation, or(d) advertises or makes known by any meanswhatsoever that any person is engaged or is readyto engage in any act which is an offence under thissection, or that any such obscene object can beprocured from or through any person or(e) offers or attempts to do any act which is an offenceunder this section,shall be punished [on first conviction withimprisonment of either description for a term which mayextend to two years, and with fine which may extend totwo thousand rupees, and, in the event of a second orsubsequent conviction, with imprisonment of eitherdescription for a term which may extend to five years,and also with fine which may extend to five thousandrupees]”[Exception - This section does not extend to --(a) any book, pamphlet, paper, writing, drawing,painting represent ion or figure --(i) the publication of which is proved to be justifiedas being for the public good on the ground thatsuch book, pamphlet , paper, writing, drawing,painting, representation or figure is in the interestof science, literature art or learning or otherobjects of general concern, or Crl.R.P. No. 615 of 2000-:8:-ii) which is kept or used bona fide for religiouspurposes;(b) any representation sculptured, engraved paintedor otherwise represented on or in -(i) any ancient monument within the meaning ofthe Ancient Monuments and Archaeological Sitesand Remains Act, 1958 (24 of 1958), or(ii) any temple, or on any car used for theconveyance of idols, or kept or used for anyreligious purpose]10. Thus, in order to attract sub section (2) of Section 292 it isenough if a person sells , lets for hire, distributes, publically exhibitsor in any manner puts into circulation or has in his possession for thepurpose of sale, hire distribution public exhibition or circulation inobscene representation or object. If such representation or object islascivious or appeals to the prurient interest or its effect if taken as awhole is such as to tent to deprive or corrupt persons who are likelyto see or hear the matter contained or embodied no suchrepresentation or object such a person need not necessarily be theowner or occupier according to the panchayath record. It is enough ifsuch person is found in management of the business of hiring thecassette carried on in the premises. P.Ws 4 and 5 who had viewedMO1 cassette have vividly described what they saw on the T.V. screen Crl.R.P. No. 615 of 2000-:9:-when the cassette was played on the cassette player. The standtaken by the accused was one of total denial which in thecircumstances of the case cannot be accepted. The learned Magistratewho tried the revision petitioner also observed in paragraph 9 of thejudgment that she herself played the cassette. With the help of avideo cassette recorder and a T.V. and was convinced about theobscene contents of MO1 cassette.11.It may be true that mere possession of an obscenecassette by itself amount to an offence punishable under Section 292(2) I.P.C. But it all depends upon the circumstances under which aperson is found to be in possession of such obscene material. If fromthe facts and circumstances of a given case it could be presumed thatthe accused was in possession of the objectionable object out of hispersonal interest in sex and with a view to satisfy his fugitivepassion for sex, and the circumstances do not suggest that he had nomachinery interest in possessing such obscene material it couldlegitimately be presumed of such material does not amount to theoffence. But here the accused was found managing a video shopwherein MO1 obscene cassette containing a blue film evidently keptfor hire to the potential customers. In such circumstances, it cannotbe said that the possession of the cassette was without the requisite Crl.R.P. No. 615 of 2000-:10:-mens rea and does not attract the ingredients of the offencepunishable under Section 292 I.P.C. 12.By no stretch of imagination could it be said that thecontends of MO1 cassette as narrated by P.Ws 4 and 5 and asrecorded in Exts.P1 and P3 is a matter of medical educational valueand was intended to eradicate the evils of prostitution and aids.13.Eventhough the word “obscene” has not been defined inthe I.P.C., the said expression has been the subject judicialinterpretation at the hands of the Apex court and other Courts. Theword obscene means what is offensive to modesty or decency whichgives rise to emotions, nudeness filthiness and repulsiveness. Thereal test of obscenity is whether the pendency of the matter chargedas obscene is to deprive and correct those who minds are open to suchimmoral influences and to see whose hands the object of the sort mayfall. Applying the tests laid down by the courts , I have no hesitationto conclude that MO1 video cassette contains obscene materialsufficient to attract the offence punishable under Sec. 292 I.P.C. Theconviction was thus rightly recorded against the revision petitioner andthe same is confirmed.14.What now survives for consideration is the question ofadequacy or otherwise of the sentence imposed on the revision Crl.R.P. No. 615 of 2000-:11:-petitioner. Having regard to the activity of hiring obscene cassetscontaining blue films to the customers who are likely to be corruptedby viewing the same, the sentence of simple imprisonment for 3months imposed and a fine of Rs.1,000/- imposed by trial court andas confirmed by the lower appellate court cannot be said to beexcessive or disproportionately harsh so as to warrant interference bythis court.In the result, this Revision fails and is accordingly dismissedconfirming the conviction entered and the sentence passed againstthe revision petitioner.V. RAMKUMAR, (JUDGE)ani.