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2008(4) LAW HERALD (P&H) 3413
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Permod Kohli
CWP No.8045 of 2002
Piara Singh Bhaniara
v..
State of Punjab
{Decided on 11/11/2008}
(B) Criminal Law--Defamatory publication--Forfeiture of--The requirement of the said Section is explicit--The Government has to state the grounds of its opinion meaning thereby the basis for formulating the opinion--Mere quoting the Section does not mean that the grounds are stated--The order must disclose the application of mind on the facts and material constituting the offences envisaged under Section 95 of the Cr.P.C. and the opinion of the competent authority that this material comes within the mischief of the Section--Once a law is enacted and Fundamental Rights are sought to be curtailed by virtue of such law adherence to the procedure and manner or method for imposing restrictions on Fundamental Rights is imperative--Thus, stating of grounds and formulation of opinion on such grounds in the order under Section 95 Cr.P.C. is must and inescapable--|Criminal Procedure Code, 1973, Sections 95 and 96. (Para 8)
(C) Criminal Law--Defamatory publication--Ban on book promoting religious enmity--No reference made to the objectionable material which constitutes offence under Sections 501, 153-A and 295-A of IPC--The impugned Notification is shorn of any such ground based upon objectionable material or even the opinion based upon such material--The mandatory requirement of Section 95 Cr.P.C. has not been complied with--However, keeping in view the sensitivity of the issue and the fact that the petitioner has not denied the existence and publication of objectionable material in the book, the State is permitted to pass a fresh order, after recording grounds and formulating its opinion as contemplated by Section 95 of the Cr.P.C.--However, till fresh orders are passed, the order of forfeiture and ban shall remain in operation--|Criminal Procedure Code, 1973, Section 95.
Permod Kohli, J. (Oral):- Questioning the validity of Notification No.1/142/4PBI/2281 dated 27.9:2001, present writ petition has been filed under Article 226 of the Constitution of India for its quashment.
The petitioner claims to be a spiritual person having established a Dera at Village Dhamana, Tehsil Anandpur Sahib, Distt. Ropar, Punjab. He wrote and published a book under the title “Bhav Sagar Samunder Amrit Vani Granth”. The publication, sale and possession of this book was banned vide the impugned Notification referred to here-in-above and even its translation in any language or its reprint prohibited and forfeited to Government in the territory of Punjab State. State Government, invoking power under Sub Section (1) of Section 95 of the Code of Criminal Procedure issued the aforesaid Notification thereby imposing ban and forfeiture of the publication on the ground that the book hurts religious feelings of certain classes of society and is defamatory to Sikh religion and that the material promotes enmity between different groups of society on ground of religion and thus constitutes offences under Sections 501, 153-A and 295-A of the IPC. It may be useful to reproduce the impugned Notification dated 27.9.2001 as follows:
“Government of Punjab
Department of Home Affairs & Justice
(Press-I Branch)
NOTIFICATION
The 27th September, 2001 No.1/142/4PBI/2281 whereas it appears to the Governor of Punjab that the Punjabi Book “Bhav Sagar Samunder Amar Rani Granth” written by Baba Piara Singh Bhaniarawale, Village Bhaniara, Tehsil Anandpur Sahib, District Ropar contains objectionable material which will promote enmity between the religions, and outrage the religious feelings of certain classes of society, and is defamatory to Sikh religion.
2.And, whereas, after carefully going through the aforesaid issue of the book “Bhav Sagar Samunder Amar Bani Granth” placed before him, the Governor of Punjab is of the opinion that the matter in the aforesaid issue of the book hurts the religious feelings of certain classes of society, and is defamatory to Sikh. Religion. This material also promotes enmity between different groups of society on grounds of religion, thereby constituting an offence under Section 501, 153-A and 295-A of the Indian Penal Code, 1860.
3. Now, therefore, in exercise of powers conferred on him by sub-section (1) of Section 95 of the Code of Criminal Procedure, 1973 (Central Act No.2 of 1974), the Governor of Punjab is pleased to order to ban the publication, sale and possession of the aforesaid book, its translation in any language and its reprints to be forfeited to Government in the territory of Punjab State.
Bikramjit Singh Principal
Secretary to Govt. Punjab
Department of Home Affairs &. Justice”
2. The legality of the Notification has been called in question primarily on two grounds that (1) it has been issued without seeking any explanation or affording any opportunity of hearing to the petitioner and is thus violative of principle of natural justice and (2) it does not disclose any ground on which the State Government has formulated its opinion.
3. Mr. Sahu, learned counsel appearing on behalf of the State of Punjab has objected to the maintainability of the writ petition on the ground that the petitioner has a statutory alternative remedy under Section 96 of the Cr.P.C. It is further contended that the application has to be heard by a Special Bench of the Hon’ble High Court comprising of three Hon’ble Judges. Section 96 of the Cr.P.C. which provides the statutory remedy to an aggrieved person, reads as under:
“96. Application to High Court to set aside declaration of forfeiture.
(1) Any person having any newspaper, books or other document, in respect of which a declaration of forfeiture has been made under section 95, may within two months from the date of publication in the official Gazette of such declaration, apply to the High court to set aside such declaration on the ground that the issue of
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