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1982 DIGILAW 271 (MAD)

P. Venkateswarlu v. State of Andhra Pradesh

1982-08-10

RAMA RAO, RAMACHANDRA RAO, SRIRAMULU

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JUDGMENT: Rama Rao, J.- These conjoint criminal miscellaneous petitions are under section 96, Criminal Procedure Code, for setting aside the declaration made by the Government of Andhra Pradesh contained in G.O.Ms. No. 72, Home (S.C.B.), dated 6th February, 1982 and published in Andhra Pradesh Gazette, dated 1st April, 1982 forfeiting the passages containing objectionable material at pages 150, 151, 184, 203, 204, 206 to 208, 237, 245, 249, 250, 256, 260, 261, 262, 268, 293, 304 and 313 in the Telugu novel entitled “Mareechika” written by Kum. Vasireddy Seetha Devi, Deputy Director, Youth Services, Government of Andhra Pradesh. 2. Crl.M.P.No. 1347 of 1982 is filed by Sri P. Venkateswarlu, Advocate and General Secretary, All India Democratic Lawyers Association, Andhra Pradesh, Hyderabad statins that he is evincing interest in the novel and Cr.M.P. No. 1584 of 1982 is filed by Kum. Vasireddy Seetha Devi, the author of the book. 3. The book was published in January, 1979 after it was serialised in the Telugu Magazine “Andhra Bhoomi” during the years 1977-78. The Government in exercise of the powers conferred under section 95, Criminal Procedure Code, declared that every copy of the book containing objectionable materials in the English translation set out in the Government Order shall be forfeited to the Government on the ground that the publication of the same is punishable under section 124-A and section 153-A of the Indian Penal Code. The provocation for the impugned order is that the book contains objectionable passages which are calculated to generate disaffection towards the Government and its armed forces and the promotion and fostering of class hatred by projecting annihilation programme of class enemies, violent upheaval and armed revolutions by extremists in the country and exciting adolescents to adopt the cult of violent philosophy of extremism which are punishable under section 124-A and section 153-A, Indian Penal Code. 4. The learned Counsel for the petitioners contended that the impugned order is vitiated in view of non-compliance with the requirements of section 95 (1) , Criminal Procedure Code, as the grounds for formation of opinion have not been set out and the substantial repetition of the language employed in the concerned sections under the guise of stating the grounds is not in consonance with the mandate in section 95, Criminal Procedure Code and irrelevant grounds cannot be equated to setting out grounds warranted under the relevant provision. 5. 5. To appreciate the two-fold contention of mechanical reproduction of the provisions of the relevant sections and the trespass of irrelevant grounds it is necessary to have close-up of section 124-A and section 153-A, Indian Penal Code, to the extent they are relevant. “124-A. Sedition.- Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings, or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years to which fine may be added, or with fine. Explanation 1.-The expression “disaffection” includes disloyalty and all feeling of enmity.” “153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. (1) Whoever- (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religions, racial, language or, regional groups or castes or communities, or (b) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participants in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence against any religious, racial language or regional group or caste or community and such activity for any reason whatsoever cause or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community.” The nucleus of Government Order omitting the schedule may be extracted: “Forfeiture of the book entitled ‘Mareechika’ written by Smt. Vasireddy Seetha Devi, Deputy Director, Youth Services, Government of Andhra Pradesh, Hyderabad containing objectionable passages. (G.O. Ms. No. 72, Home (S.C.B.), 6th February, 1982). (G.O. Ms. No. 72, Home (S.C.B.), 6th February, 1982). Whereas, it appears to the Government of Andhra Pradesh that the book ‘Mareechika’ (Telugu Novel) written by Smt. Vasireddy Seetha Devi, Deputy Director of Youth Services, Office of the Director of Youth Services, Government of Andhra Pradesh, Hyderabad, printed at Ravi Printing Press, Vijayawada-2 and published by Navajyothi Publications, Eluru Road,Vijayawada-2, contains material referred to in the schedule below which tends to excite disaffection towards the Government and its armed forces and promotes class hatred and conflict accentuating the annihilation programme of class enemies, violent struggles and armed revolutions by extremists in the country, besides luring many young minds ofimpressionable age to the dangerous violent philosophy of Extremism; the publication of which is punishable under section 124-A and section 153-A of the Indian Penal Code, 1860.” 6. Now, therefore, in exercise of the powers conferred by sub- section (1) of section 95 of the Code of Criminal Procedure, 1973 (Central Act II of 1974), the Governor of Andhra Pradesh hereby declare every copy of the aforesaid book “Mareechika” containing objectionable material at Pages 150, 151, 184, 203, 204, 206 to 208, 237, 245, 249, 250, 256, 260, 261, 262, 268, 293, 304 and 313 be forfeited to the Government of Andhra Pradesh. 7. Section 95 , Criminal Procedure Code, confers wide power on State Government to prescribe the publication provided the matter published therein is punishable under section 124-A , section 153-A , section 153-B or section 292 or section 293 or section 295-A, Indian Penal Code, by issue of a notification. The in-built safeguard or check is imbedded in the provision whereby the State Government is obligated to state the grounds founding the opinion. The reasons or grounds in support of the conclusion of the violation of the concerned provision of Indian Penal Code is a basic and initial step for initiating action under section 95, Criminal Procedure Code. The object is to a bate the Government to apply mind with an objective approach and state the grounds explicitly and thereby integrate the nexus between the offending material and the related provisions of Indian Penal Code. 8. The initial portion of the notification namely, “which tends to excite disaffection towards the Government and its armed forces” is traceable to section 124-A, Indian Penal Code. 8. The initial portion of the notification namely, “which tends to excite disaffection towards the Government and its armed forces” is traceable to section 124-A, Indian Penal Code. The same language is employed in section 124-A of the Act read with inclusive coverage of “disaffection” in Explanation 1. The only significant departure from the identity of language is the use of expression “Armed forces”. This expression in the context can be sustained as being comprehended in the expression of the Government and the hostile posture to armed forces can be equated to disloyalty or enmity to Government. If this expression cannot be brought within the purview of the section it should be considered as alien to section 124-A. The promotion of class hatred and conflict accentuating the annihilation programme of the class enemies, violent struggles and armed revolutions by extremists and luring young minds of impressionable age to dangerous violent philosophy of extremism in the later portion of Government Order can be considered as replica of section 153-A which is concerned with the promotion of enmity, hatred and disharmony among religious, racial and caste groups etc. The learned Counsel states that the expressions “class enemies” “armed revolution by extremists” are associated with friction between haves and have-nots comprising capitalists, proletariats and bourgeois etc., and the class struggle containing perennial seeds of revolution aiming at classless human society. The violent philosophy of extremism, says the learned Counsel, is associated with Naxalism and this expression pertaining to liquidation of feudal and capitalist set up by violent methods gained currency. Though there appears to be accent on class struggle and armed revolutions these expressions are within the purview of the broad category envisaged under section 153-A. The essence of the Government Order is that the passages in the book highlights cleavages in the society and demolition of the same by recourse to violent methods. According to the Government Order the ultimate object of the offending passage is to loner hatred among certain segments in the society and incite young people to set at naught the present state of affairs which are detrimental to the interests of the society at large. According to the Government Order the ultimate object of the offending passage is to loner hatred among certain segments in the society and incite young people to set at naught the present state of affairs which are detrimental to the interests of the society at large. The Government Order merely adopts the general language and ten or of the provisions of section 1?4-A and section 153-A, Indian Penal Code, but did not endeavour to give reasons of grounds on the facts and circumstances in support of the formation of opinion. 9. The learned Counsel for the petitioners relied upon the decision of the Supreme Court in State of Uttar Pradesh v. Lalai Singh1. In this decision the book " Ramayan" written by Periyar EVR of Tamil Nadu was forfeited by the Government of Uttar Pradesh purporting to be under section 99-A , Criminal Procedure Code, analogous to section 95,Criminal Procedure Code The notification contained an appendix setting out in tabular form the particulars of the relevant pages and lines in the English and Hindi versions which are regarded as scandalizing and the statement that the book is intended to outrage the religious feeling of a class of citizens of India i.e., Hindus by insulting their religion and religious beliefs. The Allahabad High Court quashed the notification and the appeal was filed at the instance of State of Uttar Pradesh. After considering the depth the diverse fact of section 99-A , Criminal Procedure Code, analogous to section 95 , Criminal Procedure Code, and section 295-A , Indian Penal Code, analogous to section 124-A and section 153-4, Krishna Iyer, J. held as follows: " Explicitly the section compels the Government to look at the matter which calls for action to consider it as to the clear and present danger to constitute in the shape or promoting feelings of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments (there are other proclivities also stated in the section with which we are not concerned for the present purpose) and quite importantly, to state the grounds of its opinion. We are concerned with the last ingredient. When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied. We are concerned with the last ingredient. When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied. You do not state a thing when you are expressively silent about it. To state " is to declare or to set forth, especially in a precise, formal or authoritative manner, to say (something), especially in an emphatic way; to assert’ (Random House Dictionary). The conclusion is inescapable that a formal authoritative setting forth of the grounds is statutorily mandatory. If you laze and omit, the law visits the order with voidness and this the State Government must realize especially because forfeiture of a book for a penal offence is a serious matter, not a routine act to be executed with unconcern or indifference. " The facts and circumstances in this case have chose affinity to the situation considered in the Supreme Court case. In the instant case also the particulars of the offending passage and the ingredients of relevant sections have been set out. It is not possible to discern the reasons in support of the decision arrived at in the Government Order. It is sufficient if the broad features of the grounds are given and no detailed programme of the grounds is not envisaged under the Act and shifting the grounds to test the propriety or otherwise at this stage does not arise. The epitome of grounds is a forerunner to the formation of opinion. It is possible to infer the objective assessment of the situation from the reasons or grounds only and mere inference or conclusion does not satisfy the requirement of section 95, Criminal Procedure Code. The Government Order indicates the mere reproduction of the ingredients of the relevant sections without applying mind to the crucial aspect whether the passages in the book tend to incite or promote the feelings envisioned in the relevant provisions. The Government Order is a substantial reproduction of section 124-A and section 153-A, Indian Penal Code, and even if certain inferences in the Government Order cannot be brought within the fold of either of the sections they have to be considered as irrelevant and out-side the brackets of the said sections. The Government Order is a substantial reproduction of section 124-A and section 153-A, Indian Penal Code, and even if certain inferences in the Government Order cannot be brought within the fold of either of the sections they have to be considered as irrelevant and out-side the brackets of the said sections. According to the learned Counsel the caption of the book “Mareechika” in Telugu means “illusion” and the book in any event pertains to illusion and propensities of teen aged persons only and does not violate the provisions of either section 124-A or section 153-A, Indian Penal Code. It is not necessary to have in depth survey of the book in the view taken that the Government Order does not contain the grounds. It must be stated that the Government Order is a mix up of several aspects and loaded with violent deviations from the relevant provisions and no less illusory. 10. In the circumstances, G.O. Ms. No. 72, Home (S.C.B.), dated 6th February, 1982 is quashed. R.S.R. ----- Government Order quashed.