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2017 DIGILAW 481 (CHH)

Nand Kumar Baghel v. State of Chhattisgarh

2017-08-31

P.SAM KOSHY, SANJAY AGRAWAL, T.B.RADHAKRISHNAN

body2017
JUDGMENT : P. SAM KOSHY, J. 1. The instant petition is one under Section 96 of the Code of Criminal Procedure assailing the notification No. Home.C/Q/2001, Raipur dated 20-10-2001 issued by the respondent invoking sub-section (1) of Section 95 of the Cr.P.C. The facts in nutshell which are necessary for adjudication of the dispute involved in the petition is that the petitioner in the instant case had published a book namely "Bramhan Kumar Rawan Ko Mat Maro". The petitioner projecting himself as a social activist, political worker and writer is said to have published the said book. According to the petitioner, the said book is nothing but a set of interpretation given by him to Mannu Smriti as well as various quotations and recitals of the Ramayana written by different authors like Balmiki, Tulsi Das, Periyar, Ramaswamy Naikar etc. However, the contents of the said book, in the opinion of the State Government, were seditious and which can bring hatred among the different classes of the society and can also excite disaffection towards a particular group. It was felt that there is a possibility of promotion of enmity on the reading of the said book among different groups which ultimately would be pre-judicial to the maintenance of harmony. It was the opinion of the State Govt. that the publication of the said book with such contents is pre-judicial to the harmony of the society and also punishable under Sections 124-A, 153, 153-B of IPC. Therefore, invoking the powers conferred upon the State Government under Section 95 of Cr.P.C. the State Government published a notification and banned the sale, reading, reference, quotation and collection of the said book and ordered for the forfeiture of it to the Government with immediate effect. The notification was published in the extraordinary Gazette of the State, dated 20-10-2001. For ready reference the said notification is reproduced hereinunder. (Editor: The text of the vernacular matter has not been reproduced.) 2. The said notification is also enclosed with the writ petition as Annexure P-1. A plain reading of the aforesaid notification itself reflects that the State Govt. The notification was published in the extraordinary Gazette of the State, dated 20-10-2001. For ready reference the said notification is reproduced hereinunder. (Editor: The text of the vernacular matter has not been reproduced.) 2. The said notification is also enclosed with the writ petition as Annexure P-1. A plain reading of the aforesaid notification itself reflects that the State Govt. on going through the contents of the book written and published by the petitioner were overall convinced that the contents of the book can outrage the religious sentiments of a particular Class and may also result in exciting violence between two sects of the society and there is all likelihood of disturbance of the public tranquility and harmony among different class, creed and race of the society. 3. It is this notification which is under challenge through the present petition under Section 96 of Cr.P.C. 4. The challenge to the notification is mostly on the ground that the notification is not a speaking one as it does not disclose as to which part of the contents were such which would have caused the threat of public tranquility or which amounts to outraging the religious sentiment. It was contended by the learned senior advocate that from the notification it also does not reflect that the authority issuing the notification had in fact gone through the contents of the book which has been forfeited by the States Govt. through the notification. According to the petitioner, there is nothing in the book which could be said to be published with an intention of outraging the religious feeling among any class of the society nor is there any contents which could be prejudicial to the harmony of the society. Lastly, it was contended that the State Government does not have sufficient material to show as to how it had formed an opinion of the book being pre-judicial to the public at large or there being a possibility of unrest among different sections of the society which is mandatorily required while invoking the powers under Section 95 of Cr.P.C. In the absence of the essential ingredients as are required under Section 95 of Cr.P.C. the publication of the notification is bad in law and prayed for the quashment of the same. 5. Per contra, the learned Advocate General representing the State Government opposed the petition stating that it is totally devoid of merits. 5. Per contra, the learned Advocate General representing the State Government opposed the petition stating that it is totally devoid of merits. According to the Advocate General, all due care was taken while publishing the notification and that it contains all the requisite ingredients as are required under the provisions of law. The State counsel opposed the petition strongly alleging that the contents of the book are very outrageous rather against the basic belief and faith of a true Indian Hindu and also drawing to promote something which is in total contrast to the Indian Hindu mythology and something which is totally unheard and beyond comprehension of all the teaching in respect of the Hindu religion and faith as in preached and professed relying upon the basic religious text i.e., the Ramayana and the Mannu Smriti, both being the holiest books so far as the Hindu religion is concerned. According to the Advocate General, it is not the requirement of law that the notification should also contain the alleged inflammatory statement or such contents which in the opinion of the State Government are outrageous According to him, all that is required is the requirement of the State Government taking an overall view of the contents of the boot and then form an opinion which a plain reading of the notification under challenge is very explicit. According to the State counsel, it is not a case where the notification does not spell out reasons which led to the issuance of the notification under Section 95 of Cr. P.C. In the course of the submission, the Advocate General referred to the following decisions of the Supreme Court: (i) AIR 1977 SC 202 (The State of Uttar Pradesh v. Lalai Singh Yadav) (ii) (2007) 5 SCC 11 : (2007 AIR SCW 2859) (Baragur Ramachandrappa and others v. State of Karnataka and others) (iii) 2016 Cri LJ 433 Kerala (FB) (K.K. Abdli. Ali and others v. The State of Kerala and another) (iv) AIR 1986 Patna 98 (Nand Kishore Sin v. State of Bihar) Based upon the aforesaid judgments, count for the State prayed for dismissal of the petition 6. Ali and others v. The State of Kerala and another) (iv) AIR 1986 Patna 98 (Nand Kishore Sin v. State of Bihar) Based upon the aforesaid judgments, count for the State prayed for dismissal of the petition 6. In view of the aforesaid submissions made on either side, it would be trite at this juncture to refer to the provisions of Section 95(1) Cr.P.C. which empowers the State Government to declare certain publications forfeited and Section 96(1) which gives powers to the High Court in a given case to set aside the declaration of forfeiture. For ready reference, Section 95(1) and 96(1) of the Cr. P.C. are being quoted hereunder: "95. Power to declare certain publications forfeited and to issue search-warrants for the same.--(1) Where- (a) any newspaper, or book, or (b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under Section 124-A or Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may be warrant authorise any police officer not below the rank of Sub-Inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be. 96. Application to High Court to set aside declaration of forfeiture.-(1) Any person having any interest in any newspaper, book 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 Cout to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of Section 95." 7. Having laid down the provisions of law as aforestated we now proceed to refer to certain judicial pronouncements that have been made on this topic. In the case of the State of Uttar Pradesh v. Lalai Sing Yadav' reported in AIR 1977 SC 202 the Supreme Court has quoted to a foreign decision wherein it has been stated that "It is fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom." Based on the said principle, the Supreme Court referring to the pari materia provision i.e., Section 99-A under the old Cr.P.C., 1998 held as under: "The triple facets of a valid order under Section 99-A are:(i) that the book or document contains any matter, (ii) such matter promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India, and (iii) a statement of the grounds of Government's opinion. When the section says that you must state the grounds of opinion 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 where there is a statutory duty to speak, silence is lethal sin for a good reason disclosed by the scheme of the fasciculus of Sections. For Section 99-C enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order and affirms or upsets it. The Court cannot make a roving enquiry beyond the grounds set forth in the order and if the grounds are altogether left out there is nothing for the Court to examine. And, by this commission careless or calculated the valuable right of appeal to the Court is defeated. The grounds or reasons linking the primary facts with the forfeiter's opinion need not be stated at learned length. That depends. In some cases, a laconic statement may be enough, in others a longer ratiocination may be proper but never laches to the degree of taciturnity. The grounds or reasons linking the primary facts with the forfeiter's opinion need not be stated at learned length. That depends. In some cases, a laconic statement may be enough, in others a longer ratiocination may be proper but never laches to the degree of taciturnity. An order may be brief but not a blank. ILR (1957) 2 Cal 396 and ILR (1973) Andh Pra 114 (FB) overruled." 8. In 2007 Cri.L.J. 3860 (Sangharaj Damodar Rupawate and Ors. v. Nitin Gadra and Ors., the Full Bench of the Bombay High Court dealing with Section 96 of the new Cr.P.C. in paragraph-6 held as under: "6. Insofar as the challenge on merits is concerned, on account of subsequent events, it is not necessary to deal with the various challenges. The requirement of passing an order of forfeiture of a book, presupposes that the book contains any matter the publication of which is punishable under Sections 124-A or 153-A or 153-B or 292 or 293 or 295-A of the IPC, for the State Government to declare that every copy of such book be forfeited to the Government. In other words the power can only be exercised and the notification can only be issued if the Government forms an opinion that the publication contains matter which is in an offence under any of the sections of the IPC As aforestated." 9. The Supreme Court again in (2007) 5 SCC 11 : (2007 AIR SCW 2859) in the case of Baragur Ramachandrappa and others v. State of Karnataka and others in paragraphs-12 and 13 dealing with the aims and objects of Sections 95 and 96 has held as under: 12. The Government thus has the power to nullify a publication which endangers public order, although the freedom of expression in this situation is undoubtedly restricted even though such freedom "is an indicator of the permanent address of human progress". It must also be noted that it would be difficult to examine all publications on a common yardstick and what may be a laughable allegation to a progressive people could appear as sheer heresy to a conservative or sensitive one. 13. Mr. Ramachandran's arguments that the action taken by the State Government was not on its own volition and was therefore mala fide must also be rejected. 13. Mr. Ramachandran's arguments that the action taken by the State Government was not on its own volition and was therefore mala fide must also be rejected. We are of the opinion that merely because some eminent personalities or group of persons had taken it upon themselves to bring to the notice of the State Government as to the inflammatory and baseless statements that had been made, it would not amount to an abdication of the State of its functions. The impugned Notification shows that the State Government had applied its mind to the contents of the novel and the allegations made therein and taken a balanced and reasoned decision on the matter." The Supreme Court further in paragraph 16 referring to the earlier referred decision of Lalai Singh Yadav (ATR 1977 SC 202) (supra) held as under: 16. It will be seen that Section 95 and Section 96 of the Code when read together are clearly preventive in nature and are designed to pre-empt any disturbance to public order. At the same time, we find that Section 95 does of by itself create a criminal offence and the reference to the various sections of the Penal Code are merely descriptive of the kind of offences which need to be prevented by a declaration under Section 95. In this view of the matter, Mr. Ramachandran's assertion that the onus of proof would he on the State Government is not acceptable as the intention has, to some extent, to be inferred from the nature of the publication. It is true that a forfeiture of a newspaper or book or a document is a serious encroachment on the right of a citizen, but if forfeiture is called for in the public interest it must without a doubt have pre-eminence over any individual interest. We also endorse the argument of the learned Advocate General that the State Government must take a pragmatic approach in the matter as explained by this Court in Lalai Singh Yadav's case (supra): "The rule of human advance is free thought and expression but the survival of society enjoins reasonable curbs where public interest calls for it. The balance is struck by governmental wisdom overseen by judicial review. The balance is struck by governmental wisdom overseen by judicial review. We speak not of emergency situations nor of constitutionally sanctified special prescriptions but of ordinary times and of ordinary laws." (Emphasis supplied) It is also worthwhile to refer to paragraph 17 of the aforesaid judgment wherein the Supreme Court has referred to the Full Bench decision of the Patna High Court in the case of Nand Kishore Singh v. State of Bihar ( AIR 1986 Pat 98 ) which includes a passage from the said judgment of the Patna High Court and which reads as under: "It would be somewhat fallacious to mathematically equate the proceedings under Ss. 95 and 96 of the Code with a trial under S. 295-A of the Penal Code with the accused in the dock. The stringent requirements of the mens rea to be proved and established are for the purpose of a conviction under this offence which carries a sentence up to three years and fine and further went on to hold but indeed to require that a deliberate and malicious intention must first be proved at the threshold stage before the Government by evidence as a condition for acting under S. 95(1), as if an accused person was in the dock, would, in effect, virtually frustrate the preventive purpose of the said section." The Court then went on to elucidate that Section 95 did not require that it should be "proved" to the satisfaction of the State Government that all requirements of the punishing sections including means rea were fully established and all that S. 95(1) therefore required was that the ingredients of the offence(s) should "appear" to the Government to be present. The Court further opined that the general rule that a man was presumed to intend the natural consequences of his act would be attached, and in conclusion observed: "The onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence including its requirements of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof." 10. Again when the decision of the Bombay High Court in the case of Sangharaj Damodar (2007 Cri.L.J. 3860 (FB) (Bom)) (supra) was questioned in the Supreme Court, in its recent decision in the case of State of Maharashtra and others v. Sangharaj Damodar Rupawate, reported in (2010) 7 SCC 398 : (2010 AIR SCW 4960) dealing with the issue under Sections 95 and 96 of the Cr.P.C. the Supreme Court in paragraph 26 has held as under: 26. Section 95 of the Code is an enabling provision, which, in the circumstances enumerated in the Section, empowers the State Government to declare that copy of a newspaper, book or document be forfeited to the Government. It is evident that the provision deals with any newspaper, book or document which is printed. The power to issue a declaration of forfeiture under the provision postulates compliance with twin essential conditions, viz., (i) the Government must form the opinion to the effect that such newspaper, book or document contains any matter, the publication of which is punishable under Section 124-A or Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-A of the IPC, and (ii) the Government must state the grounds of its opinion. Therefore, it is mandatory that a declaration by the State Government in the form of notification, to the effect that every copy of the issue of the newspaper, book or document be forfeited to Government, must state the grounds on which the State Government has formed a particular opinion. A mere citation of the words of the Section is not sufficient. In the said judgment the Supreme Court has also laid down certain guidelines which should be kept in mind while examining the validity of a notification under Section 95. For ready reference paragraph 37 is also reproduced hereinunder. "37. It would thus, appear that no inflexible guidelines can be laid down to test the validity of a notification issued under Section 95 of the Code. Nonetheless the following legal aspects can be kept in mind while examining the validity of such a notification:-- (i) The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. Nonetheless the following legal aspects can be kept in mind while examining the validity of such a notification:-- (i) The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. Therefore, the grounds of Government's opinion must be stated in the notification issued under Section 95 of the Code and while testing the validity of the notification the Court has to confine the inquiry to the grounds so disclosed; (ii) Grounds of opinion must mean conclusion of facts on which opinion is based. Grounds must necessarily be the import or the effect or the tendency of matters contained in the offending publication, either as a whole or in portions of it, as illustrated by passages which Government may choose. A mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. However, at the same time, it is not necessary that the notification must bear a verbatim record of the forfeited material or give a detail gist thereof; (iii) The validity of the order of forfeiture would depend on the merits of the grounds. The High Court would set aside the order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion it cannot be satisfied that the grounds given by the Government justify the order. However, it is not the duty of the High Court to find for itself whether the book contained any such matter whatsoever; (iv) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited; (v) The intention of the author has to be gathered from the language, contents and import of the offending material. If the allegations made in the offending article are based on folklore, tradition or history something in extenuation could perhaps be said for the author; (vi) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A of the IPC; (vii) Section 95(1) of the Code postulates that the ingredients of the offences stated in the notification should "appear" to the Government to be present. It does not require that it should be "proved" to the satisfaction of the Government that all requirements of punishing sections, including mens rea, were fully established; (viii) The onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence, including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof; (ix) The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak, and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing." 11. The decision rendered by the Supreme Court in the case of Sangharaj Damodar Rupawate (2010 AIR SCW 4960) (supra) was again considered before the Full Bench of the Kerala High Court in the case of K.K. Abdul Ali and others v. The State of Kerala and another (2016 Cri.L.J. 433) wherein one of us i.e., the Chief Justice Thottathil B. Radhakrishnan had presided the Bench and had also authored the decision. After due consideration of the factual matrix of the said case, the Full Bench had allowed the petition and set aside the notification under Section 95. However, from the said judgment it reflects that me notification was started with the terminology "Whereas, it reflects that the notification was started with the terminology "Whereas, it has been brought to the notice of the Government of Kerala" and the Full Bench of the Kerala High Court went on to decide holding that there was nothing which reflected from the notification that the State Government had formed an opinion that the publication contains highly objectionable and provocative writings which would promote religious disharmony, hatred or feelings of enmity between different religious groups. The Full Bench found that there was no formation of opinion by the State Govt. The Full Bench found that there was no formation of opinion by the State Govt. reflected in the notification and in total absence of such expression of opinion, the notification of the State Government vitiates the impugned declaration of forfeiture. For ready reference we feel it necessary to quote a portion of para-graph-10 of the Full Bench decision of the Kerala High Court which is reproduced hereunder: "Firstly, there is nothing in the notification which amounts to an expression that it appears to the State Government that the publication contains highly objectionable and provocative writings which promote religious disharmony or feelings of enmity, hatred or ill will between different religious groups. There is no formulation of opinion by the State Government reflected in the notification. Be that as it may, no opinion by the State Government is stated, though that is mandatory. Total absence of such expression of opinion, therefore, vitiates the impugned declaration of forfeiture. Grounds of the opinion have to be stated in the notification. There is no such ground stated in the impugned notification. The grounds of opinion must mean conclusion of and on facts, on which the opinion is based. A mere repetition of an opinion or reproduction of the relevant statutory provision will not answer the requirement of a valid notification, though it is not necessary that the notification must bear a verbatim record. The validity of the order would depend upon the merits of the grounds. The High Court would set aside the order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion it cannot be satisfied that the grounds justify the order. Therefore, in terms of the law laid down in Sangharaj D. Rupawate (supra), the impugned order has necessarily to fail." 12. Now coming back to the provisions of Section 95 of Cr.P.C., what is relevant to be considered as per section 95 is, wherever a printed material like any news paper or a book or any document appears to the State Govt. to contain objectionable and provocative writings, the State Government may by notification stating the grounds of its opinion declare every such copy of the issue of the said material to be forfeited. to contain objectionable and provocative writings, the State Government may by notification stating the grounds of its opinion declare every such copy of the issue of the said material to be forfeited. In other words, the requirement so far as the Government is concerned is the subjective satisfaction of the State Government on the issue, it does not anywhere refer to any sort of enquiry, investigation or requirement of complaint to be received in respect of the text while issuing the notification. As has been held by the Supreme Court in the case of Baragur Ramachandrappa (2007 AIR SCW 2859) (supra), the said provision clearly is preventive in nature and has been designed to preempt any disturbance to a public order. Thus, in order to pre-empt any such disturbance to a public order, the State Government has only to form an opinion and thereafter take a preventive measure under Section 95 of Cr.P.C. So far as the subjective satisfaction of the Authorities are concerned, the Court can-not test the subjective satisfaction to assess the propensity of the petitioner to act in a manner pre-judicial to the community which has again been reiterated by the Supreme Court in the case of Mrs. Saraswathi Seshagiri v. State of Kerala and another (1982) 2 SCC 310 : ( AIR 1982 SC 1165 ). 13. On going through the contents of the book which has been published and against which the notification under Section 95 of Cr.P.C. has been issued, we find that it clearly contains objectionable contents and the contents are such which are bound to inflame the minds of a particular section of the society and which can promote the dissension and animosity in the society. There cannot be any doubt in the minds of any Indian that things sacred to Indian Hindu mythology have to be treated and handled with profound reverence. When we refer to the contents of the book it is manifest that the contents therein have been treated by the writer with profound irreverence and the words used are blasphemy in every sense of the term. Criticism of an ideology or religious belief is different from promoting enmity between classes or outraging the religious feeling of any class by insulting its faith, belief and religion. 14. Criticism of an ideology or religious belief is different from promoting enmity between classes or outraging the religious feeling of any class by insulting its faith, belief and religion. 14. Whether the contents of the said book intended to create any feeling of enmity or hatred between the two community groups or classes in the society or not, it would be worthwhile referring to the press statement which the author himself has given wherein he admits that the contents of the book are such which can flare up society. 15. Now coming to the notification under challenge when we read the first line of the notification itself it stated that the State Government is convinced with the overall contents of the book authorised by Nana Kumar Baghel as the notification starts with the following line: (***). This by itself denotes that there has been a subjective satisfaction on the part of the State Government while reaching to the conclusion that the contents of the book have material which are objectionable and provocative. Under this context, if the State Government exercising its preventive powers as are envisaged under Section 95 of the Cr.P.C. issues a notification forfeiting the said publication, it cannot be said to be had in law or contrary to law neither is it in violation of any of the fundamental rights guaranteed upon a citizen. Under the circumstances, we are of the opinion that no strong case has been made out by the petitioner calling for an interference with the notification under challenge i.e., notification, dated 20-10-2001. Thus, the present M. Cri. C. fails and is accordingly dismissed.