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PATNA HIGH COURT
S.S.Sandhawalia, S.Sarwar Ali and B.P.Jha JJ.
Nand Kishore Singh
Versus
State Of Bihar
Criminal Miscellaneous No. 10502 of 1983 ; 11851 of 1983 ;
Decided On : SEPTEMBER 4, 1984
CRIMINAL PROCEDURE CODE - Ss. 95, 96 - Declaration of forfeiture of publication - Grounds of opinion of Government - Satisfaction of High Court - Tests - Held, that the satisfaction of the High Court alone that the offending material does not contain any matter which is punishable under one or other of the relevant sections specified in section 95(1)(b) is the conclusive factor in either upholding or quashing the declaration of forfeiture.
Fact of the Case:
The petitioner, a publisher, challenged the declaration of forfeiture of two books, "Vishwa Itihas" and "Madhyakalin Arab", by the State Government under Section 95(1) of the Code of Criminal Procedure, 1973, on the ground that they contained objectionable matters and derogatory references about Prophet Hazrat Mohammad, which outraged the religious feelings of the Muslim community and were punishable under Section 295A of the Indian Penal Code.
Finding of the Court:
The Court held that the statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. The mens rea prescribed by the relevant sections of the Indian Penal Code is not to be conclusively established by extrinsic evidence before the Government as a pre-condition of forfeiture. The intention prescribed by the relevant section of the Indian Penal Code is to be gathered primarily from the language, contents, and import of the offending publication. The onus lies on the applicant to dislodge and rebut the prima facie opinion of the Government that the offending publication is punishable under one or other of the relevant sections of the Indian Penal Code. The satisfaction of the High Court alone that the offending material does not contain any matter which is punishable under one or other of the relevant sections specified in section 95(1)(b) is the conclusive factor in either upholding or quashing the declaration of forfeiture.
Issues: 1. Whether the statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture? 2. Whether the mens rea prescribed by the relevant sections of the Indian Penal Code is to be conclusively established by extrinsic evidence before the Government as a pre-condition of forfeiture? 3. Whether the intention prescribed by the relevant section of the Indian Penal Code is to be gathered primarily from the language, contents, and import of the offending publication? 4. Whether the onus lies on the applicant to dislodge and rebut the prima facie opinion of the Government that the offending publication is punishable under one or other of the relevant sections of the Indian Penal Code? 5. Whether the satisfaction of the High Court alone that the offending material does not contain any matter which is punishable under one or other of the relevant sections specified in section 95(1)(b) is the conclusive factor in either upholding or quashing the declaration of forfeiture?
Ratio Decidendi: 1. The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. 2. The mens rea prescribed by the relevant sections of the Indian Penal Code is not to be conclusively established by extrinsic evidence before the Government as a pre-condition of forfeiture. 3. The intention prescribed by the relevant section of the Indian Penal Code is to be gathered primarily from the language, contents, and import of the offending publication. 4. The onus lies on the applicant to dislodge and rebut the prima facie opinion of the Government that the offending publication is punishable under one or other of the relevant sections of the Indian Penal Code. 5. The satisfaction of the High Court alone that the offending material does not contain any matter which is punishable under one or other of the relevant sections specified in section 95(1)(b) is the conclusive factor in either upholding or quashing the declaration of forfeiture.
Final Decision: Criminal Miscellaneous No.10502 of 1983 (Nand Kishore Singh V/s. The State of Bihar) is without any merit and is hereby dismissed. It is held by majority that the order of forfeiture in Criminal Miscellaneous No.11851 of 1983 (Suresh Kumar V/s. The State of Bihar) cannot be sustained and is hereby set aside.
S.S.SANDHAWALIA, J.
1. What are the acid tests for the satisfaction of the High Court under S.96 (4) of the Criminal P.C. 1973 for either upholding or setting aside the declaration of forfeiture made by the Government under S.95(1) of the Code has come to be the core question in these two closely connected cases before this Special Bench.
2. The foundational facts may be noticed from Criminal Miscellaneous No.11851 of 1983 (Suresh Kumar V/s. State of Bihar and another). The petitioner Suresh Kumar herein is the publisher of a book "Vishwa Itihas" in Hindi authored by Sri Dhanpati Pandey, Reader, Post Graduate Department of History, Bhagalpur University, Bhagalpur. It has been averred that Sri Dhanpati Pandey is an author of considerable repute having a large number of books and publications to his credit. Earlier in 1972 he had written a book named "Vishwa Itihas Darshan (Pratham Bhag)" in Hindi as a text book for Intermediate of Arts students of the Bhagalpur University, which was in accord with the Syllabus of the University at the relevant time. In Chapter VIII he had written about the Islamic History. A revised edition of the said book Vishwa Itihas (Pratham Bhag) was later written again by the aforesaid author in accord with the Syllabus of the Intermediate Board and was published by the petitioner in the year 1982. It is the case that the author in writing about Islam religion had relied on the authoritative historical works like the "Outline of History" by H.G., Wells, the "Muhamad at Madina" by W.M.G. Watt and the "Middle East" by S.N. Fisher etc. In discussing the Muhammadan religion he had used his dispassionate expertise as a teacher of history and in fact had praised Prophet Hazrat Mohammad when there was occasion to do so. On the 29th of October, 1983, the opposite party State of Bihar issued a notification under section 95(1) of the Code of Criminal Procedure (hereinafter referred to as "the Code") forfeiting every copy of the aforesaid book on the ground that it contained objectionable matters and derogatory references about Prophet Hazrat Mohammad which outraged the religious feelings of the Muslim community and was an offence punishable under S.295A of the Penal Code. This declaration of forfeiture is sought to be challenged on a variety of grounds to which a reference will be made hereafter.
3. In the counter-affidavit on behalf of the respondent State it has been specifically averred that the Government is satisfied that the impugned publication contained objectionable matters and derogatory references against Prophet Hazrat Mohammad which outraged the religious feelings of the Muslim community and which is an offence under S.295A of the Penal Code and consequently the requirements of S.95(1) of the Code are amply satisfied. Their stand is that the references made against Prophet Hazrat Mohammad specifically and pointedly at page 174 of the said book are grossly offensive and provocative and deliberately intended to outrage the feelings of the Muslim community. An English rendering of the relevant portion of the aforesaid book is Annexure A to the counter-affidavit. It is then the case that despite the authors reliance on eminent foreign historians, the fact remains that his comments about Prophet Hazrat Mohammad in the book have hurt the beliefs and sentiments of the Muslim community and even a teacher can have no licence to wound such religious susceptibilities. Lastly, it is alleged that the Muslim community all over the country had shown resentment by chalking out agitational programme which had all potentialities of vitiating the communal atmosphere in the State and even posing a serious threat to public peace and tranquillity. The legal grounds raised on behalf of the writ petitioner are strongly controverted.
4. In the connected Criminal Miscellaneous No.10502 of 1983 the petitioner is again the publisher of the offending publication "Madhyakalin Arab" in Hindi which is also authored by Sri Dh
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