Courts cannot read a book and hold that it is obscene if prosecution fails to prove it: Kerala High Court

The Kerala High Court recently set aside the conviction of a man booked for allegedly selling "obscene" books [Dawood v State of Kerala]. .The High Court also faulted the trial court for scrolling through the books itself to examine the guilt of the accused when the prosecution could not prove its allegations.Justice CS Dias noted that the prosecution witnesses, which included the police officers who seized the books, had not testified that the books were obscene. While so, the trial court and first appellate court judges read the books themselves and concluded that the books were obscene..Justice Dias observed that since the prosecution had failed to prove the offence, it was improper of the courts below to undertake such an exercise themselves.."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," the High Court stated..The Court was considering a revision petition moved by a man against orders of a magistrate court and later a sessions court convicting him for the offence punishable under Section 292(2)(e) (sale etc. of obscene books) of the Indian Penal Code..The prosecution claimed that the police had found 5 obscene books displayed for sale in the man's shop.The trial court found him guilty and sentenced him to undergo 3 months of simple imprisonment. The verdict was challenged, but the Sessions Court went through the material on record once again and confirmed the conviction. The sentence was, however, altered to 15 days of imprisonment and payment of ₹2,000 fine. .The correctness of these judgments was questioned by the accused man (petitioner) before the High Court..It was argued on behalf of the petitioner that the courts below had erred in finding him guilty on two grounds:the prosecution had failed to prove that the shop from which the books were seized belonged to the petitioner; andthe prosecution failed to prove that any of the 5 books were actually obscene..The public prosecutor countered that even though the prosecution witnesses had not testified that the books were obscene, the courts below examined and found them to be so..The High Court observed that it was up to the prosecution and not the courts to prove the allegations. While so, the Court noted that in this case, the witnesses never stated that the books were obscene. ."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," the Court noted further. The High Court opined that this was an improper and unreasonable exercise. Such an exercise would have been permissible if the witnesses had said anything about the contents of the book and the accused denied the same, but that was not the case here, the Court said..Moreover, the prosecution was also not able to prove any link between the petitioner and the shop owner, the High Court found..The Court, therefore, allowed the accused man's revision petition and set aside his conviction. The petitioner was represented by advocate Vinod Kumar C. Senior Public Prosecutor Seetha S appeared for the State..[Read Order]