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IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR, THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN, THE HON'BLE MR.JUSTICE P.DHANABAL
Kulandairaj @ Kulandai Royappan .. Petitioner
Vs.
The Principal Secretary to Government, Home Department – Respondent
W.P.No.13992 of 2017
Decided on : 22-12-2023
Writ Petition - Forfeiture of Publication - Sections 95, 96 of the Code of Criminal Procedure - The court discussed the provisions of Sections 95 and 96 of the CrPC, which govern the forfeiture of publications and the process for challenging such forfeiture. Section 95 allows the State Government to declare certain publications forfeited if they contain material punishable under specific sections of the IPC. Section 96 provides a remedy for interested parties to challenge this forfeiture within two months. The court emphasized the necessity of following the statutory procedure for challenging the forfeiture, which influenced its decision to dismiss the writ petition as not maintainable.
Fact of the Case:
The petitioner challenged a government notification (G.O.Ms.No.611) that declared his book 'Madurai Veeran Unmai Varalau' forfeited under Section 95 of the CrPC. The petitioner argued that the book did not contain casteist content and sought to quash the notification and allow publication.
Finding of the Court:
The court found that the petitioner failed to utilize the alternative remedy provided under Section 96 of the CrPC, which requires a challenge to the forfeiture to be made within two months. The court noted that the petitioner did not provide satisfactory reasons for the delay in filing the writ petition and emphasized the importance of adhering to the statutory procedure.
Issues: Whether the writ petition challenging the forfeiture notification under Article 226 of the Constitution is maintainable without exhausting the alternative remedy under Section 96 of the CrPC.
Ratio Decidendi: The court held that the statutory provisions of Sections 95 and 96 of the CrPC must be followed for challenging a forfeiture order. The failure to file an application under Section 96, along with a request to condone any delay, rendered the writ petition not maintainable.
Final Decision: The writ petition was dismissed as not maintainable, with the court stating that the petitioner must pursue the remedy as prescribed by law.
ORDER :
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records pursuant to the notification issued by the respondent, vide Notification in G.O.Ms.No.611, Home Department (Cts.VIA) dated 19.08.2015 and to quash the same and consequently, direct the respondent to allow him to publish and release the book titled "Madurai Veeran Unmai Varalau" written by the petitioner which was published by Adhi Thamizhar Perevai.
This Writ Petition has been filed challenging the notification issued by the respondent in G.O.Ms.No.611, Home Department (Cts.VIA) dated 19.08.2015 and to quash the same and consequently, direct the respondent to allow the petitioner to publish and release the book titled "Madurai Veeran Unmai Varalau" written by the petitioner, which was published by Adhi Thamizhar Perevai.
2. According to the petitioner, the history of Madurai Veeran has largely remained part of oral history in Tamil Nadu and the book written by him titled "Madurai Veeran Unmai Varalau" speaks about the bravery of Madurai Veeran and there is nothing in the book was written with casteist tenancies. According to the petitioner, the said book was published by Adhi Tamizhar Peravai Trichy in the year 2013 and the book was in circulation and over 2000 copies have been sold out by the Adhi Thamizhar Peravai.
3. While that being so, to the shock and surprise of the petitioner, the respondent had issued G.O.Ms.No.611, Home Department dated 19.08.2015, declaring the forfeiture of the book by invoking Section 95 of the Code of Criminal Procedure [in short "CrPC"]. Challenging the aforesaid Government Order, the petitioner has filed the instant writ petition by invoking Article 226 of the Constitution of India.
4. The Writ Petition was listed before a learned Single Judge of this Court and a preliminary objection has been raised by the State as regards maintainability of the writ petition. The learned Judge, vide order dated 14.06.2023, taking into consideration that the order of forfeiture under Section 95 CrPC has an in-built remedy by way of Section 96 CrPC, which provides for challenge thereto within two months of the ban to the High Court and Section 96(2) CrPC requires any challenge under Section 96(1) CrPC to be placed before a Bench of the High Court consisting of not less than three Hon'ble Judges and in the light of the decision of the First Bench of this Court in S.Tamilselvan, Perumal Murugan v. The Government of Tamil Nadu [2016 (4) CTC 561], has directed the Registry to place the matter before the Hon'ble Chief Justice for constitution of an appropriate Bench for consideration of the same. In pursuant to the said order, an Office Note was placed before the Hon'ble Chief Justice and the present Larger Bench was constituted as per the orders of the Hon'ble Chief Justice dated 17.10.2023.
5. A preliminary objection has been raised by the respondent/State Government as to the maintainability of the writ petition and also on the ground of limitation.
6. Per contra, learned counsel for the petitioner submitted that the writ petition is maintainable under Article 226 of the Constitution of India and in support of his contentions has mainly placed reliance on the following decisions:
(i) Anand Chintamani Dighe and another v. State of Maharashtra and Others [2002 (2) Mh.L.J.14]
(ii) Piara Singh Bhanjara v. State of Punjab and another [CWP. No.8045 of 2002 date 11.11.2008]
(iii) P.K.Palanisamy v. N.Arumugham and another [SLP(Civil) No.2308 of 2009 dated 23.07.2009].
7. The core question involved in this appeal is whether the challenge made under Article 226 of the Constitution of India without exhausting the alternative remedy by filing application under Section 96 CrPC is maintainable? In the light of the preliminary objection raised with regard to maintainability of the writ petition, let this Court shall consider the preliminary objection
AI
The court established that when a statute prescribes a specific procedure for challenging a decision, that procedure must be followed, and failure to do so results in the dismissal of the petition.
The judgment emphasizes the importance of exhausting alternative remedies and following the prescribed procedure under Section 96 CrPC for challenging orders of forfeiture.
Judicial orders from civil courts cannot be challenged through writs under Article 226; alternative remedies must be exhausted first.
The court upheld that freedom of expression can be restricted to maintain public order, especially if publications induce violence or hatred among communities, emphasizing the State's role in ensurin....
Writs under Article 226 can be maintained against predetermination by authorities, regardless of alternative remedies available, invalidating actions based on extraneous influences.
Statutory authorities must exercise powers independently, and actions based on predetermination or external influence are deemed illegal.
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