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Section 295A in The Indian Penal Code
The Indian Penal Code
The Code Of Criminal Procedure, 1973
Section 109 in The Indian Penal Code
Section 295 in The Indian Penal Code

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Karnataka High Court
The State Of Mysore vs Henry Rodrigues And Anr. on 11 October, 1961
Equivalent citations: 1962 CriLJ 564
Author: M Sadasivayya
Bench: M Sadasivayya, A A Khan



JUDGMENT
 

 M. Sadasivayya, J.

1. This is an appeal by the State against the judgment of the Assistant Sessions Judge of South Kanara, in Sessions Case No. 3 of 1960, on the file of his Court, me respondents 1 and 2, namely, Sri Henry Radrlgues and Sri B. Jayantha Shetty were the accused 1 and 2, respectively, in the said Sessions Case. The first accused was the editor and publisher of a monthly magazine called "Crusader"; it is also known as "20th Century". The second accused was the printer of the said Magazine. After obtaining from the State Government, the necessary sanction Under Section 196 of the Cr.PC the Special Public Prosecutor laid a complaint before the Additional 6ub Magistrate of Mangaiore, to the effect that in the issues of the above said magazine of August 1958," October 1958 and January 1959, there were certain articles Which were insulting to the Feligion and religious beliefs of the Roman Catholics and that the accused acted with a malicious intention in publishing and printing the same.

It was alleged that they committed an offence punishable Under Section 295-A of the IPC The Magistrate, on being satisfied that a prima facie casa bad been made out, charged the first accused for an offence Under Section 295-A of the IPC and the second accused for an offence Under Section 295-A read with Section 109 of the IPC He committed both of them to the their trial before the Court of Session. Both the accused bad pleaded not guilty before the trial Court.

The first accused admitted that h was the editor and publisher of the magazine in question. He did not deny his responsibility for the articles complained against, found in the said issues of this magazine. The substance of the stand taken by him is to the effect that he had criticized certain practices and beliefs of the Roman Catholic Church, which were all contrary and opposed to what had been stated in the Holy Bible. He sought to make out that the views expressed in these articles had not been put forward for the first time, but that there are quite a number of other well-known works which had given expression to the same views. He stated that he is himself a Roman Catholic and that he had written all these articles on the basis of the Bible and other sources. He claimed to have made a deep study of the Bible and that he wanted to make known to others, the truth which he bad discovered. He wanted that the articles written by him should be considered in their entirety. He denies having written these articles either with any malice or with a view to outrage the feelings of the Roman Catholics. ' The second accused stated that he was a Hindu and that he did not know anything about the Christian religion. He also stated that he did not know konkani language and that he did not understand English very well. Ho pleaded that he was only a printer and that he had no malicious intention in printing these articles. The learned Assistant Sessions Judge has written a lengthy and detailed judgment. He found that these articles had been deliberately written by the first accused and that some of them were in abusive language and insulting to the religious feelings and beliefs of the Roman Catholics; but, he took the vim that these articles were not written with any malicious intention. He came to the conclusion that no offence Under Section 295-A of the IPC had been committed by the writing and the publishing of the articles complained against; consequently, he acquitted both the accused. The Advocate-General has appeared for the State and Sri Rai and Sri Mohandas N. Hegde have appeared on behalf of the respondents.

2. it is not denied that quite a considerable number of Indiana are followers of the Roman Catholic Religion; it is not disputed that for the purposes of Section 295-A of the Indian Penal Code, they are a class of citizens of India. Tile contention advanced on behalf of the appellant is, that the offending-articles (all of which have been specified in the charges) have been written and published may the first accused with the deliberate and malicious mentions of outraging the religious feelings of the Indian Roman Catholics and that these are articles which are insuring to the religious beliefs of the Indian Roman Catholics.

The contention advanced By Sri Rai on behalf of the first respondent is, fhat all these articles have been written by the first respondent in a spirit to bring about reformation and out of a sincere conviction that certain practices followed by the Roman Catholics and certain superstitious beliefs entertained by them, are all wholly opposed to what is stated in the Holy Bible. It is contended by him that as long as the first respondent is sincere in his conviction that the said practices and beliefs are against the teachings in the Bible, be would be justified in attacking the same and that any excesses in the language used while making such attacks, need not necessarily be attributable to a malicious intention.

But the answer of the learned Advocate-General to this stand taken on behalf of the first respondent is, that the intention of the writer must be judged primarily by the language of the articles and if that language is abusive and calculated to unnecessarily hurt the feelings of the class against which it is directed or is insulting to the religious beliefs of that class, then malicious intention on the part of the writer ought to be inferred.

Before proceeding to consider the respective contentions above referred to, it would be desirable to refer briefly to the matters to which these articles generally relate. Sri Rai has taken us through all the articles, which have been specified in the charges framed by the trial Court. The subject of the attack in these articlas are certain practices and beliefs of the followers of the Roman Catholic Religion; the main targets of the attack are, the worship of Virgin Marry, the observance of the Mass, the distribution of wafers and obedience to the Pope, the Roman Church and the priests of that Church.

The first respondent claims to have made a deep study of the Holy Bible and become convinced that the Bible does not sanction the worship of Virgin Mary. He admits that Mary is blessed and therefore entitled to be honoured; but, it is only God that is entitled to worship and not Mary who was only a human being. His stand' is that Jesus Christ made the supreme sacrifice for all humanity and for all time to come and that the Bible does not sanction the offer of any other sacrifice to God. The Mass, transubstantiation and the distribution of the wafers amongst the devotees which are practised by the followers of the Roman Church, are all, according to him, the relics of paganism. The worship and prayers offered to the images of Marry which have been set up in ever so many places all over the world, amount, according to him, to adulatory which has been forbidden by the Bible. The Institution of Papacy, is not one sanctioned by the Bible.

According to him, the Pope and the Roman Church, have been encouraging superstitious beliefs, in order to profit themselves; much of their preaching is oppasetf to what is stated in the Holy Bible. The priests of the Roman Church have prevented the followers of Christianity from correctly understanding the teachings of Christ. The claim of the first respondent is, that it is in a sincere attempt to remove these evils and in order to make the people understand the real teachings of Christ, that he halt made the attacks against the worship of Virgin Mary and the superstitious beliefs fostered by the Roman Church and it& priests.

3. These articles which have been specified in the charge, have all been read out to us by Sri Rai and have been commented upon by him and by the learned Advocate General. There cannot be any doubt that the language used by the firs'; respondent in most of these articles is abusive, often times insulting and that it must have caused very great pain to the followers of the Roman Catholic Church. The learned Assistant Sessions Judge .also, has made it quite clear in a number of places, in his judgment, that the language used by the first respondent in many of these articles is vile and insulting.

At para 13 of his judgment, this is what he states.

When these fourteen passages are read over, severally or collectively, either one after the other, or in a sequence, we get an impression that the accused has indulged in vile and vitriolic abuses. His expressions are unbridled. It is natural that the series of invectives which he has used would pain any orthodox Roman Catholic.

At para 100 of his jddgment, he states as follows :

It cannot be denied by the first accused that babylon stands for a 'City of idolatrous cults, dissolute vices, and political oppression.'.... To call the Roman Church Babylon is most offensive.

It is in evidence, that the first respondent had been carrying on his campaign against the Roman Church and its priests and certain religious beliefs of the Roman Catholics, since a number of years prior to the complainant which led to this prosecution of the first respondent for an offence Under Section 295-A of the IPC These articles are not due to any sudden impulse of the moment; they are part of a continuous and calculated campaign against the Roman Catholic Church and the followers of that Church; they are the result of deliberate intention on the part of the first respondent. From what is stated at para 123 of his judgment, it is quite clear that the learned trial Judge also was satisfied that these articles have been written by the first respondent, with a deliberate intention.

4. What has been strenuously urged by the learned Advocate-General is, that the language in some of these articles is so vile and abusive as to manifest the malicious intention of the writer to outrage the religious feelings of the followers of the Roman Catholic Church and to Insult their religious beliefs. His grievance is, that this aspect of the matter has not been satisfactorily dealt with by the learned Assistant Sessions Judge. While not disputing the proposition that the entire article should be read to gather the intention of the writer, he has specially brought to our notice certain passages in these articles, which are referred to below.

In the 1958 August issue of the 'Crusader', which is in Konkani, there is an article which has been marked as Ex. P-2 and the English translation of which has been marked as Ex. P-3. That article is under the title "Honour to Mary or Dishonour?" That appears to be an article intended to ridicule the worship of Virgin Mary and it also purports to severely criticize the Roman Catholic priests for exploiting the ignorant people by falsely attributing miracles to Mary. The following passages are found in this article:

Taken up with this infidel devotion to Mary, what a large number of people call upon a dead creature (for help). The poor dead Mary neither hears nor sees them. If a thousand people, in a thousand cities use a thousand rosaries at the same time to say "Hail Mary, Hail Mary....

to honour and worship a corpse, will a single dead creature be able to hear the prayers and honour uttered by the thousand people in the thousand cities in a thousand languages (which include the language of the dumb too)?" "On the whole, these are means to loot money by practising meaningless superstitions in the name of devotion and honour to Mary, a creature ... it she protects (us), then in a special manner she protects our priests, nuns, Bishops, Cardinals (and) the Pope because they are her dallali (paid agents)." In the same article, later on, after referring to certain alleged miracles which, according to certain publications in Roman Catholic papers, had been wrought by Mary, She following passage is 'round:

These are the wonderful miracles of the Roman Catholic Lootmar Company for thieving money by swindling people.

In the 1958 October issue of the "20th Century", which is marked as Ex. P-4, the first respondent has written an article under the heading "Tins Truth Shall Make you Free." The following passage occurs in that article :

Satan through his, Roman Church, has corrupted not only the religious Truth that Lord Jesus Christ and the Apostles gave the early Church, but also secular truth political, sociological, economic, historical, scientific, philosophical, moral, etc. In every domain of religious and secular truth he has wrought this corruption through his agents, the priests.

In the same issue, there is another article under the heading "Mother of Harlots and Her Daughters." The following passages appear in the said article:

Babylon, the Roman Church, must fall and before Babylon falls, somebody must shoot at her, So the call to God's people to-day is to shoot at her, and spare no arrows....

Every man-made Church that organised, after the Roman Catholic church. (The mother of harlots1 the six hundred or more other man-made church organisations that have made their own names, all of them must come out of Babylon, lest they be partakers of Babylon's plagues (read Apoc. Rev. 18:4, Jer 51 :6, 2 Cro. 6:17 and Zech. 2:7). This is the reason why the Pope in a recent Broadcast was calling all her daughters to come to their mother. And the organisations will be forced to go back to their mother, because the Anti-Christ will give this Harlot church power over the Church world, to rule the same....

Is It now clear to see every time we assemble ourselves in an organised Church we are assembling ourselves in an Harlot Church, or have been born in one of these churches, we are children of a harlot, born out of Wedlock, illegitimate, and without even the promise of God being our father, unless we come out from out of that organized church and be a separate people.

In the January 1959 issue of the "20th Century" which has been marked as Ex. P. 5, there is an article under the heading "Was the late Pope Pius XII a man of Peace?" Towards the end of that article, there occurs the following passage:

The Scriptures are very clear. The Roman Church is clearly described, arrayed in purple and scarlet cloud, and decked with gold and precious stones and pearls, having a golden cup in her hand full of abominations and filthiness of her fornication .... Babylon the Great. The Mother of Harlots and abominations of the earth" (Rev. Apoc. 17:4-5).

5. Even if it were to be accepted that the first respondent is looking at the abovesaid practices and beliefs of the followers of the Roman Church, with the eyes of a reformer and his attacks on the same are lie to his sincere conviction that the said practices and beliefs are wholly opposed to the teachings of Jesus Christ, there cannot be any excuse for the vile and highly insulting language used by him. It may be open to him to put forward his own views; it may also be open to him while persuading others to accept his views, to criticise those practices and beliefs which according to him, do not find the sanction of the Bible. As observed by ;he Allahabad High Court in Kali Charan Sharma v. Emperor A.I.R. 1927 All 649 (SB).

It must of course be recognized that in countries where there is religious freedom a certain latitude must of necessity be conceded in respect of the free expression of religious opinions together with a certain measure of liberty to criticise the religious beliefs of others". But, that does not mean that he should indulge in writing articles in a highly objectionable language intended to (Outrage the religious feelings of the followers of the Roman Catholic Church. As pointed out later in the above-said case, it is contrary to all reason to imagine that liberty to criticize includes a license to resort to vile and abusive language.

In a subsequent decision of the Allahabad High Court, Khalil Ahmad v. State , their Lordships had occasion to consider the meaning of the word "malicious" in Section 295-A of the IPC The view of their Lordships, was expressed as follows:

It, therefore, appears that, in Section 295-A IPC the word 'malicious' has not been used in the popular sense. .In order to establish malice as contemplated by this Section, it is not necessary for the prosecution to prove that, the applicant bore ill-will or enmity against specific ;persons. If the injurious act was done voluntarily without a lawful excuse, malice may be presumed.

It was argued by Sri Rai that in the present case, there was material to show that there was truth in the first respondent's allegation that the followers of the Roman (Catholic Church indulged in superstitious beliefs and .practices contrary to the Holy Bible. According to him, the truth of the allegations, could be an effective defence to a charge Under Section 295A of the IPC We are unable to agree with this argument. Such a contention was considered and rejected by the Allahabad High Court in . Their Lordships 'Observed as follows:

The present enquiry has to be confined to the question whether there was malicious intention of outraging, the religious feelings of a class of citizens of India. even a true statement may outrage religious feelings.

Having regard to the purpose for which Section 295-A of the IPC has been enacted, we find ourselves unable to accept the view that a statement which would otharwise fall within the mischief of Section 295-A, can be taken out of it merely because it happens to be a true statement. As contended by the learned Advocate-General, if the language used transgresses the limits of decency and is designed to vex, annoy and outrage the religious feelings of others, then, the malicious intention of the writer can be inferred from the language employed by him.

In the present case, the contention advanced on behalf of the first respondent to the effect that the statements made by him in these articles were all true, is found on an examination, to be not a very correct contention. In the article under the heading "Honour to Mary or Dishonor?", it is alleged that the followers of iris Roman Catholic Church offer worship and prayer to a corpse (that is, to the corpse of Mary). This is an allegation made, without any just or lawful excuse. Because, by no stretch of imagination can it be said that in worshipping and offering prayers to Mary, the followers of the Roman Church actually worshipped a corpse or a dead body. When the first respondent concedes that Mary is entitled to honour he cannot be understood to say that it is the corpse of Mary that is entitled to honour. There cannot be any doubt that the statement of the first respondent that the followers of the Roman Church worship and offer prayers to the corpse of Mary, is one made without any lawful or just excuse and intended only to outrage the religious feelings of the followers of the Roman Catholic Church.

Again, the statement of the first respondent that. in the Scriptures the Roman Church is clearly describe as arrayed in purple and scarlet color, etc. and having a golden cup in her hand full of abominations, etc., is not true. By giving reference to Verses 4 and 5 of Chapter 17 of Apocalypse, the first respondent has attempted to create an impression that in those Verses the Roman Church has been described in this manner. The said Verses which have been pointed out to us (in Douay Version of the Holy Bible), by the learned Advocate-General are as follows :

4 And the woman was clothed round about with purple and scarlet, and gilt with gold and precious stones and pearls, having a golden cup in her hand, full of the abomination and filthiness of her fornication.

5 And on her forehead a name was whiten: A mystery; Babylon the great, the mother of the fornications and the abominations of the earth.

It is seen that there is absolutely no reference in 'these verses, to the Roman Church. Sri Rai was not able to point out any portion in the Bible where the Roman Church has been described in such terms.

It is quite clear that the words in these verses in the Bible, have been taken out of their context and made use of by the first respondent to describe the Roman Church in such a way as to insult the Roman Catholic Religion and outrage the religious feelings of the followers of that Religion. For so doing, the first respondent had no just or lawful excuse.

In Veerabrahmam v. State of Andhra Pradesh , the Andhra Pradesh High Court had occasion to consider whether the writings in a book called "Bible Bandaram" came within the mischief of Section 295-A of the Indian Penal Code. In that case also, the Court accepted the proposition that the intention of the author has to be gathered primarily from the language used. Bhimasankaram J. who dissented from the other two Judges in that case, took the view that the material placed in that case was not sufficient to draw the conclusion that the author was guilty of deliberate and malicious intention to outrage the religious feelings of the Christian Community. But, he did not disagree from the view of the other two learned Judges (Chandra Reddy C.J. and Srinivasachari J.), on the point, that the intention is to be gathered mainly from the words used by the author (See para 58 at page 583 of ).

The learned Counsel for the first respondent sought to make use of the following observations made by the Supreme Court in Ramji Lal Modi v. State of U. P. :

In the next place Section 295-A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or this religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the; religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not, come within the section.

Having regard to the fact that repeated attacks couched art foul language have been made by the first respondent, we are satisfied that these observations cannot be of any use to the first respondent.

The worship of Mary by the followers of the Roman Catholic Church has been characterised by the first respondent, as the worship of a corpse. The priests of the Roman Church have been described as her 'Dellalies'. He lias equated the Roman Church, which is held in great respect by its followers, to Babylon which was a place of dissolute vices, passages taken out of their context from the Bible, have been used to depict the Roman Chruch as holding in its hand a cup full of abomination and filthiness. It has been described as the Harlot Church. The Pope who is the head of the Roman Church and is held in great veneration by the Roman Catholics, has been called the Satan and the Anti-Christ. The Roman Catholic priests have been referred to as "a Lootmar Company" (that is, a company engaged in looting).

The fact that the first respondent Was sincerely opposed to certain practices and beliefs of the Roman Catholics (on the ground that the same did not have the sanction of the Bible), was not a just or lawful excuse for using such a foul and abusive language. On a careful consideration of the entire articles in which the passages above referred to appear, we are satisfied that it is with the malicious intention of outraging the religious feelings of the Roman Catholics and to insult their religion and religious beliefs that the first respondent has indulged in these writings.

Courts would do well to take serious note of the observations made by the Supreme Court in Veerabhadran Cnettiar v. E. V. Ramaswami Naickar . Though their Lordships were dealing with a case Under Section 295 of the IPC the following observations made by them at p. 1035. are equally applicable to a case Under Section 295-A of the IPC;

The Section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court."

6. A faint attempt was made by Sri Rai to suggest two other contentions. He hinted in the course of his arguments that the Court may consider as to whether Section. 295-A of the IPC was consistent with the right guaranteed under Article 25(1) of the Constitution to propagate religion. We do not think that there is any necessity to consider this question as the matter has been set at rest by the Supreme Court. In , while repelling a similar contention, the Supreme Court has pointed out that the right to freedom of religion assured by Articles 25 and 26 of the Constitution has been expressly made subject to public order, morality and health. The view taken by the Supreme Court was to the effect that though Section 295-A was a law creating an offence relating to religion, it had been enacted in the}: interests of Public Order.

The next contention suggested by Sri Rai was that the publication of each article had to be viewed as a separate offence and that if so viewed, the charge framed by the trial Court was not in accordance with Section 234(1) of the Cr.PCJ in other words, it was stated that the charge related to more than three offences. Sri Raij, frankly conceded before us that there is absolutely no material to indicate that any such objection had been raised, before the trial Court. He did not also make-any attempt to show that any prejudice had been, thereby caused to the accused. The first accused knew for what he was being tried and he had every opportunity to meet the charges. As a matter of fact, he has defended himself against all the articles specified in the charge. His defence was of a type that was, in a way, common to all the offending articles mentioned in the charge. Under these circumstances we do not find any force in the said contention.

7. For the reasons above stated, we are satisfied that the acquittal of the first respondent is wrong and that it should be set aside.

So far as the second respondent is concerned, It is seen that he was merely the printer of the offending articles. There is no charge against him except Under Section 295-A read with Section 109 of the IPC He has stated that he does not understand Konkani language and that he does not very well understand English language. It is possible that he was unaware of the malicious intention of the first accused; it is doubtful whether it can be said, in the circumstances of the case, that the second accused had intentionally abetted the first accuse to commit any offence punishable Under Section 295-A of the IPC The learned Advocate General also concede the possibility of some doubt existing in regard to the position of the second accused. In these circumstances, we do not think that we ought to interfere with the acquittal of the second respondent.

The writing and the publication of any of the articles above referred to, containing any of the passages extracted above, is sufficient to render the first respondent liable to punishment Under Section 295-A of the IPC Though these articles have been written under different headings, the main subject-matter of their attack is, in reality, only one; that is, the Roman Church and certain beliefs the practices of the followers of that Church. Having regard to this aspect of the matter, it does not appear to be necessary to convict the first accused separately for clat of these articles and to award separate sentences; it appears to be sufficient, in the interests of justice, if there is a single conviction and sentence.

This appeal, in so far as it relates to the first accused, is allowed and his acquittal is set aside and he is found guilty Under Section 295-A of the IPC for his having written and published the articles above referred. to, containing the passages extracted above. Having regard to the fact that he had the good fortune of obtaining an acquittal at the hands of the trial Court, we think that it is Sufficient to impose merely a sentence of no on him. He is ssntenced to pay a fine of Rs. 200/-and in default of payment of fine, to undergo simple imprisonment for one month. He is given fighter days' time to pay the fine amount.

The appeal, in so far as it relates to the second respondent, is dismissed.