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1965 Supreme(Pat) 39
PATNA HIGH COURT
G.N.Prasad, J.
State Of Bihar
Versus
Ghulam Sarwar
Government Appeal No. 42 of 1962 ;
Decided On : MARCH 30, 1965
The intention of the accused is the main ingredient of the offense laid down in Section 153A of the Indian Penal Code. The court must consider the offending article or pamphlet as a whole and the circumstances attending the publication. Isolated passages or strong expressions should not be dwelt upon too much. The general effect of the speeches or writings as a whole should be gathered. The intention of the accused is to be gathered from the language used and the whole of the circumstances in which the speeches or writings were made, including the audience to whom they were addressed.
Headnote:
CRIMINAL LAW - Section 153A of the Indian Penal Code - Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. - Interpretation and application - Intention of the accused as the main ingredient of the offence - Mens rea must be established - Court must consider the offending article or pamphlet as a whole and the circumstances attending the publication - Isolated passages or strong expressions should not be dwelt upon too much - General effect of the speeches or writings as a whole should be gathered - Intention of the accused to be gathered from the language used and the whole of the circumstances in which the speeches or writings were made, including the audience to whom they were addressed.
Fact of the Case:
The respondents, the editor and printer and publisher of a weekly Urdu newspaper, were convicted by the Judicial Magistrate for publishing an editorial article titled "Khoda Khair" that allegedly promoted or attempted to promote feelings of enmity or hatred between the Hindus and the Muslims, an offense punishable under Section 153A of the Indian Penal Code. The State Government had authorized the Senior Superintendent of Police to file a complaint against the respondents, and the complaint was filed in accordance with the provisions of Section 196 of the Code of Criminal Procedure.
Finding of the Court:
The High Court set aside the conviction of the respondents, holding that the trial court erred in its interpretation of Section 196 of the Code of Criminal Procedure and that the prosecution had failed to prove the mens rea required for an offense under Section 153A of the Indian Penal Code. The court found that the respondents did not intend to promote feelings of enmity or hatred between the Hindus and the Muslims but rather were expressing their apprehension of danger facing the society on account of the delay in implementing the law concerning cowslaughter.
Issues: 1. Whether the prosecution had properly obtained the sanction of the State Government to file the complaint under Section 153A of the Indian Penal Code. 2. Whether the respondents had the intention to promote feelings of enmity or hatred between the Hindus and the Muslims by publishing the editorial article.
Ratio Decidendi: 1. Section 196 of the Code of Criminal Procedure does not contemplate any sanction of the State Government. It only indicates who can file a complaint in respect of an offense punishable under Section 153A of the Indian Penal Code. The complaint has to be filed by order of, or under authority from, the State Government or some officer empowered by the State Government in this behalf. 2. The intention of the accused is the main ingredient of the offense laid down in Section 153A of the Indian Penal Code. The court must consider the offending article or pamphlet as a whole and the circumstances attending the publication. Isolated passages or strong expressions should not be dwelt upon too much. The general effect of the speeches or writings as a whole should be gathered. The intention of the accused is to be gathered from the language used and the whole of the circumstances in which the speeches or writings were made, including the audience to whom they were addressed.
Final Decision: The appeal by the State Government was dismissed, and the order of acquittal recorded by the Additional Sessions Judge was upheld.
G.N.Prasad, J.
1. The State Government has preferred this appeal against the order of the learned Additional Sessions Judge of Patna, who has set aside the order of the learned Judicial Magistrate of Patna, convicting the two respondents under Section J53A, Indian Penal Code, and sentencing them to pay a fine of Rs. 200.00 or to suffer rigorous imprisonment for two mouths each, in default. The first respondent is the Editor and the second respondent is the Printer and Publisher of a weekly Urdu newspaper called Sangam published in Patna town.
2. It appears that in the said newspaper, an editorial article captioned "Khoda Khair" was published on the 9th May 1959. Upon a consideration of the said article, the State Government thought that it promoted or attempted to promote feelings of enmity or hatred between the Hindus and the Muslims, and as such its publication constituted an offence punishable under Sec.153A of the Indian Penal Code. Accordingly, an order was passed on the 13th June 1959 authorising the Senior Superintendent of Police, Patna, to file a complaint for the prosecution of the two respondents. In pursuance of this order, the Senior Superintendent of Police, Patna, filed a complaint before the Subdivisional Magistrate on the 17th June, 1959, whereupon cognizance was taken and the respondents were put on trial.
3. Upon a consideration of the offending article and the circumstances under which the respondents had published it, the learned Judicial Magistrate came to the conclusion that the respondents had attempted to promote feelings of hatred or enmity between the Hindus and the Muslims by publishing the same.
4. In appeal, however, the learned Additional Sessions Judge referred to the merits of the case only casually, but set aside the conviction of the respondents, on what he considered to be a fatal defect in the prosecution. The learned Judge took the view that under the provisions of Sec.196 of the Code of Criminal Procedure, it was requisite that the prosecution should have been sanctioned by the State Government and that the order of the State Government dated the 13th June 1959, which has been brought on the record as Ext. 5, had not been proved in accordance with law and, therefore, the whole trial was rendered without jurisdiction, because on the record there was no sanction of the State Government which could be the basis of the jurisdiction of he Magistrate to take cognizance and to proceed with the trial of the case. That is how the State Government has brought this matter before this Court.
5. I must say at the outset that the reason given by the learned Additional Sessions Judge for setting aside the conviction of the respondents is not sound. Sec.196 of the Code of Criminal Procedure is in the following terms:
"No Court shall take cognizance of any offence punishable under Sec.153A .. unless upon complaint made by order of, or under authority from, the State Government or some officer em powered by the State Government in this behalf."
it is clear from the terms of this section that it does not contemplate any sanction of the State Govern ment. It only indicates as to who can file a com plaint in respect of an offence punishable under Sec.153A, Indian Penal Code. The complaint has to be filed by order of, or under authority from, the the State Government or some officer empowered by the State Government in this behalf. The order (Ext. 5) recited that it had been passed under the order of the Government of Bihar and it was signed by a Deputy Secretary to Government in the Poli tical Department. Special section and was in the fol lowing terms:
"Whereas Shri Ghulam Sarwar son of Shri Fazal Hamid Hussain a resident of Dinapur, Patna, is the Editor and Shri Mohammad Naimuddin, son of Late Mohammad Ilias a resident of Mohalla Betwan Bazar, Monghyar, is the Printer and publisher of Sangam an Urdu weekly newspaper published from Sangam Office, Dariyapur Patna-4 and the above named persons are resp
