Court Cannot Itself Indulge In Reading Book To Determine 'Obscenity' When Prosecution Fails To Discharge Initial Onus Of Proof: Kerala High Court

The Kerala High Court has set aside the conviction of a person accused of displaying obscene books for sale in a shop room on the ground that the prosecution had failed to prove that the books were obscene or that the accused was in possession of the shop room from where the books were seized.

The Single Judge Bench of Justice C.S. Dias noted that the material prosecution witnesses, i.e. the police officers who conducted the search, had neither stated that the books were obscene nor had they proved ingredients for the offence under Section 292(2)(a) IPC ('Sale of obscene books, etc.') against the accused. 

"The prosecution having failed to state anything on the contents in the books and no incriminating circumstances being put to the accused under Section 313 Cr.P.C., the action of the courts below in scrolling through the books and then concluding that they are obscene is erroneous and unjustifiable. The action of the courts below has caused prejudice to the accused, because he has been denied an opportunity to explain the exercise carried out by the courts below. Hence, this Court is of the view, there is a total failure of justice in the courts below holding that the books are obscene and, therefore, the accused is guilty of committing the offence," Justice Dias declared. 

The area Sub-Inspector had conducted a search in the shop room on receiving information that petitioner herein was selling obscene books. The books were seized, and the petitioner was charged under Section 292(2)(a) IPC.

The Trial Court found the petitioner (accused) guilty and sentenced him to undergo 3 months simple imprisonment. The Appellate Court confirmed the conviction but reduced the sentence to 15 days imprisonment. It is against this oder that the present revision petition was filed.

Advocate Vinod Kumar C. appearing for the petitioner submitted that the courts below erred on twin grounds: (i) the prosecution failed to prove that the shop room from where the books were seized was in possession of the petitioner; (ii) prosecution failed to establish factum of obscenity of the books.

Public Prosecutor Seetha S. argued that although the prosecution witnesses had not testified that the books in question were obscene, the courts below had examined the books and found them to be so.

Perusing Section 292 IPC, as well as the Apex Court decisions in Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra & Ors (1969), and Aveek Sarkar & Anr. v. State of West Bengal & Ors (2014) that defined obscenity, the Court observed that in order to attract the offence under the provision, the following ingredients would have to be proved, namely: (i) that the book is lascivious, (ii) that it appeals to the prurient interest, (iii) that it tends to deprive and corrupt persons who are likely to read/see/hear the matter (iv) that the matter does not fall within the exceptions provided in the section and (v) that the obscenity is judged from the point of view of an average person, by applying contemporary community standards. 

The Court found that the prosecution witnesses had merely testified that the books were seized from the shop room of the accused, and not that the books were obscene. It discerned that it is "elementary in criminal jurisprudence that the onus of proof is on the prosecution to prove that the accused has committed the offence", which had not been proved in the present case. 

The Court thus stated that the action of the courts below in reading the books and concluding the same as obscene was improper in light of the prosecution witnesses having failed to testify the same. 

"Notwithstanding the stony silence on the part of PWs.1 and 4 on the contents of the books, quite surprisingly, the courts below ventured to read the books and conclude that the books are obscene and, thereby, the revision petitioner has committed the offence. According to this Court, the exercise carried out by the courts below is improper, unreasonable and on a misreading of the records. The exercise would have been permissible, had PWs.1 and 4 spoken anything on the contents of the books and the accused denying the same," it observed. 

So far as possession of shop room is concerned, Prosecution had examined the Superintendent of the Municipal Office who deposed that the shop room belonged to one C.N. Saraswathy. But said person was not examined as a witness in the case, Court noted.

The Court thus found that there was nothing on record to substantiate that the petitioner was the owner or in possession of the shop room.

"Indisputably, no material is placed on record to corroborate that C. N. Saraswathy had given the shop room to the accused. His mere presence in the shop room on the uneventful evening is insufficient to hold that he was in possession of MOs 1 to 5 books. The onus of proof was on the prosecution to establish the link between the accused and the shop owner. Having failed to do so, the irresistible conclusion is that the prosecution has failed to prove a vital aspect, which is detrimental to the prosecution," the Court observed while setting aside petitioner's conviction.

Citation: 2023 LiveLaw (Ker) 541