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IN THE HIGH COURT OF ALLAHABAD
V. G. Oak, A. P. Srivastava and D. P. Uniyal, JJ.
BABA KHALIL AHAMAD - Appellant
Versus
STATE - Respondents
Criminal Misc. Case 810 Of 1955
Decided On : 04/20/1960
CRIMINAL LAW - Forfeiture of Books - Section 99-A, Cr. P. C. - Order of forfeiture - Grounds of opinion not stated - Whether invalid - Section 99-D, Cr. P. C. - Scope of inquiry - Whether confined to only one issue - Sections 99-A to 99-G, Cr. P. C. - Whether ultra vires - Section 295-A, I. P. C. - Whether valid - Intention of outraging religious feelings - Whether necessary to prove ill will or enmity against specific persons - Malice - Meaning.
Fact of the Case:
The applicant, Baba Khalil Ahmad, wrote six books in which he criticized the character of Muawiya, a historical figure and a religious leader revered by some Muslims. The State Government, acting under Section 99-A of the Code of Criminal Procedure (Cr. P. C.), ordered the forfeiture of the books on the ground that they contained matter punishable under Section 295-A of the Indian Penal Code (I. P. C.), which prohibits the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India.
Finding of the Court:
The Court held that the order of forfeiture was valid and that the applicant's application under Section 99-B, Cr. P. C. to set aside the order should be dismissed. The Court found that the books contained matter that was likely to outrage the religious feelings of a class of citizens of India who revered Muawiya, and that the applicant had the deliberate and malicious intention of outraging those feelings.
Issues: 1. Whether the order of forfeiture was invalid because it did not state the grounds of the State Government's opinion as required by Section 99-A, Cr. P. C.? 2. Whether the scope of inquiry under Section 99-D, Cr. P. C. was confined to only one issue, namely, whether the books contained matter of the nature referred to in Section 99-A? 3. Whether Sections 99-A to 99-G, Cr. P. C. were ultra vires? 4. Whether Section 295-A, I. P. C. was valid? 5. Whether it was necessary to prove ill will or enmity against specific persons to establish malice under Section 295-A, I. P. C.?
Ratio Decidendi: 1. The Court held that the order of forfeiture was not invalid for not stating the grounds of the State Government's opinion, as required by Section 99-A, Cr. P. C., because Section 99-D, Cr. P. C. precludes the High Court from considering any point other than the question whether the document in question comes within the mischief of the offence charged. 2. The Court held that the scope of inquiry under Section 99-D, Cr. P. C. was confined to only one issue, namely, whether the books contained matter of the nature referred to in Section 99-A, because Sections 99-A to 99-G, Cr. P. C. form a single scheme dealing with the same subject-matter - forfeiture of objectionable literature. 3. The Court held that Sections 99-A to 99-G, Cr. P. C. were not ultra vires, as they were consequential to the substantive law laid down in Section 295-A, I. P. C., which had been upheld by the Supreme Court. 4. The Court held that Section 295-A, I. P. C. was valid, as it was intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. 5. The Court held that it was not necessary to prove ill will or enmity against specific persons to establish malice under Section 295-A, I. P. C., as malice in the legal sense means a wrongful act done intentionally without just cause or excuse.
Final Decision: The Court dismissed the applicant's application under Section 99-B, Cr. P. C. to set aside the order of forfeiture and directed the applicant to pay the opposite party Rs. 600/- as costs, Rs. 300/- as translation charges, and Rs. 300/- as Deputy Government Advocate's fee.
( 1 ) THIS is an application by Baba Khalil Ahmad under Section 99-B, Cr. P. C. for setting aside an order of the State Government under Section 99-A, Cr. P. C. for the forfeiture of six books written by the applicant.
( 2 ) THE applicant has filed two affidavits in support of his application. According to these affidavits, there is a consensus of opinion of Muslim Ulemas that, Yasid, son of Muawiya was the chief perpetrator of Karbala. In November 1952, a handbill was published in Benaras describing Yasid as one entitled to be admitted to heaven. In other pamphlets Muawiya was praised and was represented as a leader of Hanafi Muslims. The applicant is a Sunni Musalmari of Hanafi sect. He considered it his duty to dispel doubts and misunderstanding about the position of Yasid and Muawiya in Muslim history. With the object, the applicant wrote the six books, which were subsequently forfeited by the State Government. The applicant never intended to wound or outrage the religions feelings of any person.
( 3 ) THE Home Secretary to U. P. Government filed a written statement on behalf of the government. According to the written statement, the six books in question were prescribed by the receivment in the interest of public order, and on receiving protests from a number of persons whose religious feelings had been injured.
( 4 ) ONE Abdul Malik, who supported the action taken by the State Government, filed two counter-affidavits. According to the counter-affidavits, Amri Muawiya and his father Abu Sufain are held in great legard by Sunni Muslims. The speeches delivered and the books written by the applicant outraged the religious feelings of Muslims.
( 5 ) MUAWIYA figures prominently in the six books in question. It is, therefore, necessary to point out who Muawiya was. After the death of Mohammad, the prophet, there were disputes about imamate, that is, spiritual leadership of Muslims. These differences led to the formation of the main sects of Muslims -- Sunnis and Shias. According to Sunnis Abu Bakar, Umar and Usman were the first three Khalifas; and Ali was the fourth Khalifa. Shias do not recognise Abu Baker, umar and Usman as Khalifas. According to Shias, Ali was the first Khalifa. Muawiya, son of abu Sufain was a contemporary of Mohammad, the prophet, but survived him. Muawiya was the governor of Syria. There was a battle between Muawiya and Ali. There is serious controversy about Muawiyas character. According to the school of thought represented by Abdul Malik, muawiya was a pious person. According to the applicants school of thought, Muawiya was a man of mean character.
( 6 ) IT was urged for the applicant that, the order of forfeiture passed by the State Government is invalid, because the order did not comply with Section 99-A, Cr. P. C. Section 99-A, Cr. P. C. runs thus:
" (1) Where (a) any newspaper, or book. . . . . . . . appears to the State Government to contain. . . . any matter. . . . . . which is deliberately and maliciously intended to outrage the religious feelings of any such class. . . . . . the State Government may, by notification in the official Gazette, stating the grounds of its opinion declare. . . . . to be forfeited. . . . . . . "
It was urged for the applicant that, in the present case the order passed by the State Government did not state the grounds of its opinion as required by Section 99-A Cr. P. C.
( 7 ) THE order passed by the State Government in the present case ran thus:-
"in exercise of the powers. . . . . . the Governor is pleased. . . . . . on the ground that the said publication contains matter, the publication of which is punishable under Section 295a of the indian Penal Code. "
It was pointed out that, the Order made a bare reference to Section 295a, I. P. C. without specifying the facts of the case and the objectionable features of the books in question.
( 8 ) IN "harnam Das v. State of U. P. ", AIR 1957 All 538 the Special Bench noticed that, the order passed by the State Government
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