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2010 (5) Supreme 225
SUPREME COURT OF INDIA
D.K. Jain and H.L. Dattu, JJ.
State of Maharashtra & Ors. — Appellants
versus
Sangharaj Damodar Rupawate & Ors. — Respondents
Civil Appeal No. 5205 of 2010
[Arising out of S.L.P.(C) No. 8931 of 2007]
Decided on : 9-7-2010
AIR 1961 SC 1662; (1972) 3 SCC 676; (1976) 4 SCC 213 – Relied upon
AIR 1971 Bombay 56 – Impliedly distinguished
(2004) 2 SCC 267; (1991) 4 SCC 195; (1989) 2 SCC 574 – Referred
(b) Code of Criminal Procedure, 1973 – Section 96 – Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture is made under Section 95 of the Code, to move the High Court for setting aside the declaration on the ground that it does not contain any such matter as is referred to in sub-section (1) of Section 95. (Para 18)
(c) Code of Criminal Procedure, 1973 – Section 95(1) – The provision being drastic in nature has to be construed strictly – Exercise of power under it has to be in the manner and according to the procedure laid down therein. (Para 19)
(d) Indian Penal Code, 1860 – Section 153-A – Intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A of the IPC – Prosecution has to prove prima facie the existence of mens rea on the part of the accused. (Para 23)
(2007) 5 SCC 1 – Relied upon
(1997) 7 SCC 431 – Referred
(e) Indian Penal Code, 1860 – Section 153-A – Publication has to be judged primarily by the language of the book, the circumstances in which it was written and published – It must be read as a whole – One cannot rely on strongly worded and isolated passages for proving the charge nor can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Para 23)
(1988) 1 SCC 668 – Relied upon
AIR 1947 Nag 1 – Referred
(f) Sections 95 and 96 of the Code with a trial under Section 295-A of the IPC Sections 95 and 96 – Not necessary that satisfaction of the State Government that all requirements of the punishing Sections including mens rea were fully established –Section 95(1) only requires that the ingredients of the offence should “appear” to the Government to be present – The provision exemplifies that freedom of speech and expression is not unfettered – Proceedings u/s 95 and 96 cannot be equated with trial u/s 295-A, IPC. (Para 24)
(2007) 5 SCC 11 – Relied upon
AIR 1986 Pat 98 – Referred
(g) Code of Criminal Procedure, 1973 – Section 95(1) – Principles to test validity of notification u/s 95(1) stated. (Para 25)
Facts of the case:
1.The Govt. of Maharashtra issued notification for forfeiture of every copy of the book captioned as “Shivaji - Hindu King in Islamic India” written by one Prof. James W. Laine.
2.The Bombay High Court quashed the notification.
Finding of the Court:
The conditions statutorily mandated for exercise of power under Section 95 of the Code are lacking and therefore, the action of the Government cannot be sustained.
Result : Appeal dismissed.
JUDGMENT
D.K. Jain, J. —
Leave granted.
2.This appeal, by special leave, filed by the State of Maharashtra and its functionaries, arises out of the judgment dated 26th April, 2007 delivered by the High Court of Judicature at Bombay in Writ Petition No.1721 of 2004. By the impugned judgment, passed in an application under Section 96 of the Code of Criminal Procedure,1973 (for short “the Code”) read with Article 226 of the Constitution of India, the High Court has set aside and quashed notification dated 20th December, 2006, issued in the name of Governor of Maharashtra in exercise of the powers conferred by sub-section (1) of Section 95 of the Code, directing forfeiture of every copy of the book captioned as “Shivaji - Hindu King in Islamic India” written by one Prof. James W. Laine.
3.The three writ petitioners, who are respondents No.1, 2 and 3 herein, are respectively stated to be a well known lawyer and a public activist in the Ambedkarite movement, intended to mobilize the deprived sections of the society; (ii) a well-known film maker, whose documentaries are stated to be known the world over for their artistic finesse, conveying democratic and secular message and (iii) a social activist. Respondents No. 4 to 6 impleaded as such vide this Court’s order dated 29 th August, 2007 respectively are Prof. James W. Laine, the author of the book, Oxford University Press, India, the publisher through its Constituted Attorney Mr. Manzar Sayed Khan and Mr. Vinod Hansraj Goyal, proprietor of Rashtriya Printing Press, Delhi, the printer of the book.
4.For the purpose of appreciation of the questions raised, the foundational facts may be noticed. These are:
On 28th May, 2003, respondent No. 5, the publisher entered into an agreement with Oxford University Press, U.S.A. for publishing in India a paper-bound book entitled “Shivaji - Hindu King in Islamic India” authored by Prof. James W. Laine (respondent No.4), a Professor of Religious Studies, Macalester College, U.S.A. The said book was originally published by Oxford University Press, Inc., U.S.A. As per the terms of the agreement, respondent No.5 agreed to reprint the book without any changes or deletions. In all, 803 copies of the book were published i.e. 488 copies in June and 315 copies in October, 2003 and was released in July 2003 and 215 copies were sold in the month of July itself.
On 10th November 2003, the publisher (respondent No.5) received a letter from four historians whereby the publisher and the author had been asked to retract the objectionable statement complained of and tender an apology. Mr. Manzar Sayed Khan, expressed regrets for the said statement and informed the objectors that instructions had been issued to all his offices in India to immediately withdraw all copies of the book from circulation. After withdrawal of the book from circulation, a mob at Pune blackened the face of a Sanskrit Scholar Shri Shashikant Bahulkar whose name appeared in the acknowledgement of the book, having helped the author, Prof. James W. Laine, by providing him with some information during his visit to Pune. This incident was widely reported in the press. On 28th December, 2003, the author Prof. James W. Laine sent a fax, apologising for the mistake, if any, committed in writing the passage and stated that he only was responsible for the said statement written in the book, and the publisher was not at all responsible for the same. On 5th January, 2004, a mob of 100 to 125 persons allegedly belonging to the Sambhaji Brigade ransacked Bhandarkar Oriental Research Institute (BORI), Pune and destroyed a large number of books and rare manuscripts. This incident was also widely reported in the press.
On 7th January, 2004, respondent No.4, the author in an interview, explained the reason for writing the book and expressed deep anguish at the destruction of rare manuscripts and books in BORI, Pune. Four days after the alleged incident i.e. on 9th January, 2004, the State of Maharashtra, the appell
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