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Allahabad High Court · body

2009 DIGILAW 3107 (ALL)

ANIL KUMAR SINGH v. STATE OF U. P.

2009-09-11

B.N.SHUKLA, S.K.JAIN, SAROJ BALA

body2009
JUDGMENT By the Court.—By these petitions under Section 96 of the Code of Criminal Procedure, 1973 (In short the ‘Code’) Notification No. 1232 P/vi-Pu-6-2008-6(Vividh)/2008 dated May 5, 2008 issued by the Government of Uttar Pradesh under sub-section (1) of Section 95 of the Code ordering the forfeiture of the book titled ‘Jatiraj’ penned by Shri Laxmi Kant Shukla, is under challenge. 2. Heard Shri Satya Narayan Shukla and Shri K.C. Shukla, learned counsel for the petitioners, Shri J.N. Mathur, learned Additional Advocate General appearing on behalf of the respondents and have perused the material on record. 3. The petitioners are Secretary of ‘Meydha’ a registered society and publisher of the book titled Jatiraj and readers of the said book written by Laxmi Kant Shukla, a P.C.S. Officer. The book was published in December 2006. On May 5, 2008 the Government of Uttar Pradesh, the respondent made an order under Section 95 of the Code forfeiting the book captioned ‘Jatiraj’. 4. The petitioners have challenged the impugned order of forfeiture on the grounds (i) there was complete non-application of mind; (ii) it is vague to the extent as what was considered objectionable has not been indicated; (iii) the grounds for its opinion have not been stated; (iv) the great personages, other religion and classes of society referred to have not been specified; (v) there is no material to show what was the basis for holding that the acts were done deliberately and maliciously; (vi) it violates Rule 4 of Rules of Business; (vii) it is unjustified on facts; (viii) the facts and material annexed with counter affidavit cannot be used to supplement the grounds for the opinion of Government. 5. The learned counsel for the respondents on the contrary submitted that order of forfeiture was passed after fully considering the matter contained in the book. The petitioners have no locus standi to question the validity of the impugned order. The order of forfeiture can be challenged only on the ground that issue or book in respect of which declaration was made did not contain any such material as referred to in sub-section (1) of Section 95 of the Code. The impugned notification satisfies the requirement of Section 95 of the Code as in the first part of the order for declaration of forfeiture the grounds of opinion have been set out. The impugned notification satisfies the requirement of Section 95 of the Code as in the first part of the order for declaration of forfeiture the grounds of opinion have been set out. According to the learned counsel grounds of opinion means conclusion of facts on which opinion is based. Merely because the great personages, other religions and classes of society have not been indicated does not effect the validity of the notification. 6. The relevant part of the impugned order was in the following terms : “Whereas in the book Jatiraj written by Shri Laxmikant Shukla, P.C.S. Officer (under suspension) and published by Meydha Prakashan Allahabad, there have been used defamable comments against the great personages and the words used are hurting their dignity and the language used therein is instigating the sentiments of followers of other religions whereby it is quite possible that bitterness and ill-will may thrive amount the various and classes of society resulting in sharp reactions in the society. The said book has been deliberately written, printed and published to generate bitterness and ill-will. Whereby there is all probability of ill-will and offensiveness in the various classes of society; And whereas, the State Government is satisfied that the writing and publication of the said book is punishable under Sections 153-A and 295-A of the Indian Penal Code, 1860 (Act No. 45 of 1860); Now, therefore, in exercise of the power under sub-section (1) of Section 95 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) the Governor is pleased to declare that every copy of aforesaid issue of the book “Jatiraj” and any other document containing copies, reprints translation thereof or extracts therefrom shall be forfeited to the State Government and if there is any doubt of being the material related to it at any place, a person may be authorised through warrant to enter and search the place thoroughly.” 7. The learned counsel for the respondents raised the preliminary objection of locus standi of petitioners to move these applications on the ground that the book is not a religious book and ‘Meydha’ the registered body has not filed these petitions. The petitioners not being the owner, author, publisher or reader of the book, they are not interested persons and have no right to maintain these petitions. 8. The petitioners not being the owner, author, publisher or reader of the book, they are not interested persons and have no right to maintain these petitions. 8. The petitioner Anil Kumar Singh in paragraph 2 of the application has stated that he being the Secretary of ‘Meydha’ and reader of the book Jatiraj is a interested person and aggrieved by the order of forfeiture. The petitioner Mohan Lal Mishra, Dhiraj Advocate has stated in paragraph-2 of the application that he being the Secretary of ‘Meydha’ Unnao Unit and reader of the book Jatiraj is an interested person and aggrieved by the order of forfeiture. In reply to the contents of paragraph-2 of the applications it has been stated in paragraph-4 of the counter affidavit that identity of the organization namely ‘Meydha’ has not been disclosed in the applications. Replying the contents of paragraph 4 of the counter affidavit it has been stated in paragraph-5 of the rejoinder affidavit that identity of the organisation ‘Meydha’ is disclosed in Annexure-7 annexed with the application. The origin and objects of the society ‘Meydha’ have been described at page No. 387-388 of the book Jatiraj and registration certificate (Annexure-8) has been annexed with the application. The petitioner Anil Kumar Singh being the Secretary of Meydha, Central Unit is an interested person and book having been published by Meydha Publication, he is the owner of the book. The petitioner Mohan Lal Mishra in paragraph 5 of the rejoinder affidavit has stated that he is a Secretary of District Unit of Meydha Unnao. 9. The learned counsel for the petitioners submitted that petitioners being the Secretary of ‘Meydha’ and owner of the book Jatiraj are interested persons. In support of the contention reliance was placed on Full Bench decisions in the cases of Ramlal Puri v. State of Madhya Pradesh, AIR 1971 MP 152 and Sujato Bhadra v. State of West Bengal, 2006 Cri. L.J. 368. 10. In support of the contention reliance was placed on Full Bench decisions in the cases of Ramlal Puri v. State of Madhya Pradesh, AIR 1971 MP 152 and Sujato Bhadra v. State of West Bengal, 2006 Cri. L.J. 368. 10. In Ramlal Puri’s case (supra) it has been held that an institution which has sponsored the publication of a book, which is forfeited under Section 99-A old Cr.P.C. by the Government is a person interested and can challenge it by an application under Section 99-B, Cr.P.C. It has further been laid down that a religious book is being forfeited by the Government under Section 99-A, Cr.P.C. the body owing allegiance to the particular sect or that cult is a person interested. 11. In Sujato Bhadra’s case (supra) it has been held as follows : “However, we may first deal with the preliminary objection with regard to the locus standi of the petitioner to move this petition. In the petition, it is alleged that the petitioner is a citizen of India. He owns a copy of the forfeited book. He has a proprietary right in the copy of the said book within the meaning of Article 300-A of the Constitution of India. Further, under Article 19(1)(a) of the Constitution of India, he has a fundamental right to freedom of speech and expression as enshrined therein. He claims that he has freedom to seek, receive and impart information from the said book as part of his such fundamental and legal right. The order of forfeiture has impaired his fundamental and legal right. Therefore, he claims himself to be person who falls within the ambit of the expression “any person having any interest in any ............ book” as provided in Section 96 of the Cr.P.C.” 12. In Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112 , the Apex Court has held as under : “Every one shall have the right to freedom of expression, this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” 13. Under Section 96 of the Code the person interested in the book forfeited has a right to apply to the High Court to set aside the order of forfeiture made under sub-section (1) of Section 95 of the Code. The phrase any person having any interest in any newspaper, book cannot be circumscribed by any condition. It includes a person who is owner of a copy of such book and wants to retain with him, read it and discuss with others and share or impart information out of it. The words ‘any person’ includes anyone having such interest. Due to declaration of forfeiture the petitioners run the risk of seizure of their copies of book by any police officer and search of their premises. The book ‘Jatiraj’ has been published by Meydha Publication. The petitioners being Secretary of Meydha, readers and owner of the book are persons interested in the book and have a right to move these petitions for setting aside the order of forfeiture. 14. The next submission of the learned counsel for the respondents was that the question whether the order of forfeiture does or does not contain the grounds of opinion is beyond the scope and ambit of sub-section (1) of Section 96 of the Code. The words ‘any such matter’ appearing in sub-section (1) of Section 95 and sub-section (1) of Section 96 of the Code refer to such matters on which the Government forms its opinion. In other words, the grounds of Government’s opinion stated in the order of forfeiture. The Apex Court while dealing with the scope of Section 99-D of old Code (Section 96 of new Code) in the case of Harnam Das v. State of U.P., AIR 1961 SC 1662 (para-10) held as under : “An order contemplated by Section 99-D is made on an application under Section 99-B. That order must therefore accept or reject the grounds on which the application under Section 99-B was made. These grounds, as we have seen, are confined to challenging the propriety of the grounds on which the Government’s opinion resulting in the order, was based. The words which we have earlier quoted from Section 99-B occur substantially in the same form in Section 99-D. The scope of the two sections is identical. The common words occurring in them must, therefore, have the same meaning in both. The words which we have earlier quoted from Section 99-B occur substantially in the same form in Section 99-D. The scope of the two sections is identical. The common words occurring in them must, therefore, have the same meaning in both. They must hence, in Section 99-D also mean such matters on which for the grounds stated by it the Government’s opinion was based. They cannot mean, as the High Court thought, any matter whatsoever, irrespective of the Government’s reasons for making the order, which in the High Court’s opinion would have justified it.” 15. In view of the above dictum of the Apex Court, the argument of learned counsel for the respondents is fallacious and untenable. 16. The conditions necessary for forfeiture under Section 95 of the Code are: (i) formation of opinion by the State Government prior to declaration of forfeiture and (ii) statement of the grounds of Government’s opinion. The expression grounds of its opinion’ used in Section 95 of the Code implies that opinion should be supported by the facts. The requirement of stating the grounds of opinion is mandatory and an order bereft of the grounds of opinion does not stand the test of legality. Mere reproduction of ingredients of relevant section of Indian Penal Code is not sufficient. 17. The Apex Court in State of U.P. v. Lalai Singh Yadav, AIR 1977 SC 202 has held that the requirements of a valid order under Section 99-A of the old Code (presently Section 95) are : (i) that the book or document contains any material; (ii) such matter promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of the country; and (iii) a statement of the grounds of Government’s opinion. It was further held that the statement of grounds of Government’s opinion may be brief, but not blank. 18. A notification in order to be legal and valid must be in conformity with law. The grounds of opinion are an essential part of the notification as the grounds would justify its issuance. The requirement of stating the grounds of opinion being an integral part of sub-section (1) of Section 95 of the Code, a notification to be legal must fulfil this requirement. The grounds of opinion are an essential part of the notification as the grounds would justify its issuance. The requirement of stating the grounds of opinion being an integral part of sub-section (1) of Section 95 of the Code, a notification to be legal must fulfil this requirement. In Narayan Das v. State of M.P., AIR 1972 SC 208, the Apex Court has held as follows : (Para 8) : “The formation of an opinion by government is undoubtedly the ground for the action taken by them, but the grounds for the opinion are obviously different. The opinion, after it has been formed, furnishes a ground to the Government for taking action contemplated but the grounds on which the opinion itself is formed are and must be other grounds. These grounds must necessarily be the import or the effect of the tendency of matter contained in the offending publication either as a whole or in portions of it, as illustrated by the passages which the Government may choose.” 19. While considering an application filed under Section 96 of the Code the High Court is required to find out whether the mandatory requirements are satisfied. The Court is not required to consider any other matter apart from Government’s reasons for making the order of forfeiture. This position has been stated in Harnam Das’s case (supra) (Paras 12 & 13) as below : “12. The acceptance of the interpretation put by the High Court would lead to a result which, in our view, would be wholly anomalous. The order of forfeiture with which Section 99-D is concerned is indisputably an order under Section 99-A. Now, an order under that section is essentially an order of the Government and of no one else. Take a case where the Government making the order states the grounds of its opinion on which the order is based. The order of forfeiture with which Section 99-D is concerned is indisputably an order under Section 99-A. Now, an order under that section is essentially an order of the Government and of no one else. Take a case where the Government making the order states the grounds of its opinion on which the order is based. Suppose the Government says that the expression of view A in the book concerned offends the religious beliefs of community X. Now assume that in an application made to set it aside, the High Court was not satisfied that view A could offend community X but thought that another expression of view in the same book which we will call B, offended the religious beliefs of different community, say community Y. If in such a case the High Court upheld the order, which, if the view of the Court below is right, it could do, there would really be an order of forfeiture made by the High Court and not by the Government, because the Government in stating the grounds of its opinion had not, since it did not say so, thought that view B could offend the religious beliefs of community Y. We think it impossible that the sections concerned contemplated such a result; the Code nowhere provides for an order of forfeiture being made by the High Court. We are, therefore, of opinion that under Section 99-D it is the duty of the High Court to set aside an order of forfeiture if it is not satisfied that the grounds on which the Government formed its opinion that the books contained matters the publication of which would be punishable under any one or more of Sections 124-A, 153-A or 295-A of the Penal Code could justify that opinion. It is not its duty to do more and to find for itself whether the book contained any such matter whatsoever.” “13. What then is to happen when the Government did not state the grounds of its opinion? In such a case if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have in contemplation at all. If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government. In such a case if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have in contemplation at all. If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government. This, as already stated, the High Court has no power to do under Section 99-D. It seems clear to us, therefore, that in such a case the High Court must set aside the order under Section 99-D, for it cannot then be satisfied that the grounds given by the Government justified the order. You cannot be satisfied about a thing which you do not know. This is the view that was taken in Arun Ranjan Ghose v. State of West Bengal, 59 Cal WN 495 and we are in complete agreement with it. The present is a case of this kind. We think that it was the duty of the High Court under Section 99-D to set aside the order of forfeiture made in this case.” 20. The power under sub-section (1) of Section 95 of the Code is subject to the condition of forming an opinion by the government and setting out the grounds for its opinion. In order to exercise the power under this section it must appear to the government that the printed matter is of such a nature as is referred to in the section and would be punishable under Sections 153-A and 295-A of the Indian Penal Code. 21. Section 153-A, I.P.C. will apply if the writing promotes or attempts to promote enmity and hatred etc. In order to bring the case under Section 295-A, I.P.C. the words used should be such as are bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feeling of any class of citizens. Section 153-A, I.P.C. punishes the Act of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste, community and acts prejudicial to maintenance of harmony between different groups or castes or communities if the acts disturbed the public tranquility. The notification uses the word “deliberately”. Section 153-A, I.P.C. punishes the Act of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste, community and acts prejudicial to maintenance of harmony between different groups or castes or communities if the acts disturbed the public tranquility. The notification uses the word “deliberately”. The words used in the objectionable matter should be such as are bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feelings of any class of citizens. There is no material to show that the act was done deliberately. A bare reading of the notification shows that there is no description of any particular religion, community or class whose sentiments and religious beliefs are offended. For promoting feeling of enmity hatred and ill will between different religious groups, castes and communities the involvement of two such groups, castes and communities is necessary. Merely inciting the feelings of one community or group without reference to any other group community or class cannot attract Section 153-A, I.P.C. There is no description of particular religion, class or community in the impugned notification which are likely to be incensed. 22. An order of forfeiture of a publication not only infringes the fundamental right to freedom of expression guaranteed under Article 19 (1)(a) of the Constitution but entails penal consequences of seizure of the copies of the book by the police and search of places where they are suspected to be found, therefore the power of forfeiture is to be exercised with caution and in the manner prescribed by the law. The Apex Court considering the provision of Section 99-A of the Old Code in State of U.P. v. Lalai Singh Yadav (supra) held thus : (para-8) “A drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction, especially when quasi-penal consequences also ensue. The imperial authors of the Criminal Procedure Code have drawn up Section 99-A with concern for the subject and cautionary mandates to government. The power can be exercised only in the manner and according to the procedure laid down by the law. The imperial authors of the Criminal Procedure Code have drawn up Section 99-A with concern for the subject and cautionary mandates to government. The power can be exercised only in the manner and according to the procedure laid down by the law. 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 it constitutes in the shape of 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. 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”. 23. Judging the validity of the notification on the touchstone of the law laid down by the Apex Court there can be no doubt about the conclusion that the Government has completely failed to state the grounds of its opinion. The notification is vague as it does not specify the classes of citizens, religions, castes and communities whose feelings have been wounded. The lacunae in the impugned notification cannot be permitted to be supplemented by the counter affidavit filed in these proceedings. The impugned notification of forfeiture does not fulfil the mandatory requirements of sub-section (1) of Section 95 of the Code as it does not set out the grounds of opinion of the State Government. The lacunae in the impugned notification cannot be permitted to be supplemented by the counter affidavit filed in these proceedings. The impugned notification of forfeiture does not fulfil the mandatory requirements of sub-section (1) of Section 95 of the Code as it does not set out the grounds of opinion of the State Government. Mere reproduction of the language used in the statutory provisions of Sections 153-A and 295-A, I.P.C. will not save the notification from the consequences of invalidity. 24. In view of the foregoing discussion the impugned notification is illegal and ultra-vires and has to be nullified. Both the petitions are allowed. The impugned notification and order of forfeiture dated 5.5 2008 is quashed and set aside. ————