Tests for determination of obscenity.

Crl.R.P. 560 of 1987 is by the second accused in C.C. 53 of 1985 on the file of Judicial Magistrate of First Class, Parur while Crl.R.P. 570 of 1987 is by the third accused, who were found guilty of the offence under S.292(2)(a) read with S.34, I.P.C.

2. On information that petitioners were exhibiting pornographic pictures. P.W.6 Deputy Superintendent of Police, conducted a raid at or about 8.30 p.m. on 14-11-84 in premises belonging to P.W.4. and it is said, found petitioners exhibiting video films, P.Ws. 7, 9, 10 and 11 too witnessed the exhibition and according to them. What was exhibited was erogenic and capable of arousing purient thoughts in viewers., P.Ws. 1 to 3 were witnessing the exhibition, but turned hostile. P.W.4 deposed that he is the landlord of the premises and 5 stated that the television unit and the video cassette recorder used by petitioners belonged to him. He would also say that accused and himself were running a club. P.W.11, seized cassettes including cassette No.16612, which was inside the video cassette recorder. According to him, the premises were under the control and use of accused. The pictures showed nude men and woman in the carnal act. Rape is also depicted. There are also acts, against the order of nature. This is what the courts below found on evidence.

3. On this evidence, courts below found the petitioners were engaged in exhibiting obscene pictures. Counsel for petitioners submitted that there is no evidence to prove that petitioners were causing exhibition. Courts below found that petitioners were engaged in exhibiting obscene pictures. They were found standing near the recorder and television. unlike those sitting on chairs and viewing the exhibition. Whether standing near the machines used for exhibiting images/pictures would spell out the act of exhibiting is essentially a matter of evidence. Courts below thought that this afforded evidence, and that the premises and equipments were under the control and use of petitioners. In Para 7 of the judgment, learned trial magistrate noticed the evidence of P.W.5 that himself and petitioners were conducting a video club. Magistrate also noticed that P.W.5 was not cross examined on this aspect. The evidence of P.Ws. 6, 7, 9 and 10 was also considered by the magistrate in this regard, the evidence furnished by MO.5 tokens. Ext.P.3 register, Ext.P.4 receipt books and Ext.P.5 voucher book was also relied on. I am both inclined the think that the inference drawn by the court below on evidence is so unreasonable as to merit interference, in revision. One cannot look for standards of proof unlikely to exist. The fact that petitioners were near the equipment, the manner in which they conducted themselves, their control over the premises, television unit, video cassette recorder, tokens and registers etc. are material circumstances. The finding of fact must therefore stand.

4. Counsel then contended that video cassettes are not “obscene objects” or “representation” and that nothing obscene will be visible in these. To be an obscene object, the object need not be visible to the naked eye. Even what is visible to one person may not be visible to another, without aid of optical lenses. Need for mechanical or optical aid for perception by visory senses, will not make the object any less visible. The fact that electrical impulses recorded on video tape are thrown on to the television screen, by electric current to the picture tube containing a cathode ray, to produce images will not make it any less visible, than any other visual object.

5. It was then argued that there was no exhibition. An expression must be understood, having regard to the age and context in which it is used. Music heard through audio equipments, like gramophones, stereo speakers and radio transmission may not have been regarded music a few centuries ago. Words must be understood in their contemporary meaning and context In the words of Holmes. J. in California v. Baker Holmes. J. in C