Mobile View
Main Search Advanced Search Disclaimer
Cites 20 docs - [View All]
The Indian Penal Code
Section 95 in The Indian Penal Code
Section 295A in The Indian Penal Code
Section 96 in The Indian Penal Code
Section 153A in The Indian Penal Code

User Queries
Patna High Court
Nand Kishore Singh And Etc. vs State Of Bihar And Anr. on 4 September, 1984
Equivalent citations: AIR 1986 Pat 98, 1985 (33) BLJR 366
Author: S Sandhawalia
Bench: S Sandhawalia, S S Ali, B Jha

JUDGMENT

S.S. Sandhawalia, C.J.

1. What are the acid tests for the satisfaction of the High Court under S. o(4) of the Criminal P.C., 1973 for either upholding or setting aside the declaration of forfeiture

made by the Government under Section 95(1) of the Code has come to be the core question in these two closely connected cases before this Special Bench.

2. The foundational facts may be noticed from Criminal Miscellaneous No. 11851 of 1983 Suresh Kumar v. State of Bihar and Anr.). The petitioner Suresh Kumar herein is the publisher of a book "Vishwa Itihas" in Hindi authored by Sri Dhanpati Pandey Reader-Post Graduate Department of History. Bhagalpur University, Bhagalpur. It has been averred that Sri Dhanpati Pandey is an author of considerable repute having a large number of books and publications to his credit Earlier in 1972 he had written a book named "Vishwa Itihas Darshan (Prathara Bhag)" in Hindi as a text book for Intermediate of Arts students of the Bhagalpur University, which was in accord with the Syllabus of the University at the relevant time. In Chapter VIII he had written about the Islamic History. A revised edition of the said book 'Vishwa Itihas (Pratham Bhag)' was later written again by the aforesaid author in accord with the Syllabus of the Intermediate Board and was published by the petitioner in the year 1982. It is the case that the author in writing about Islam religion had relied on the authoritative historical works like the "Outline of History" by RG., Wells, the "Muhamad at Madina" by W.M.G. Watt and the "Middle East" by S.N. Fisher etc. In discussing the Muhammadan religion he had used his dispassionate expertise as a teacher of history and in fact had praised Prophet Hazrat Mohammad when there was occasion to do so. On the 29th of October, 1983, the opposite party State of Bihar issued a notification under Section 95(1) of the Code of Criminal Procedure (hereinafter referred to as "the Code") forfeiting every copy of the aforesaid book on the ground that it contained objectionable matters and derogatory references about Prophet Hazrat Mohammad which outraged the religious feelings of the Muslim community and was an offence punishable under Section 295A of the Penal Code. This declaration of forfeiture is sought to be challenged on a variety of grounds to which a reference will be made hereafter.

3. In the counter-affidavit on behalf of the respondent State it has been specifically averred that the Government is satisfied that

ihe impugned publicafion contained objectionable matters and derogatory references against Prophet Hazrat Mohammad which outraged the religious feelings of the Muslim community and which is an offence under Section 295A of the Penal Code and consequently the requirements of Section 95(1) of the Code are amply satisfied. Their stand is that the references made against Prophet Hazrat Mohammad specifically and pointedly at page 174 of the said book are grossly offensive and provocative and deliberately intended to outrage the feelings of the Muslim community. An English rendering of the relevant portion of the aforesaid book is Annexure 'A' to the counter-affidavit. It is then the case that despite the author's reliance on eminent foreign historians the fact remains that his comments about Prophet Hazrat Mohammad in the book have hurt the beliefs and sentiments of the Muslim community and even a teacher can have no licence to wound such religious susceptibilities. Lastly it is alleged that the Muslim community all over the country had shown resentment by chalking out agitational programme which had all potentialities of vitiating the communal atmosphere in the State and even posing a serious threat to public peace and tranquillity. The legal grounds raised on behalf of the writ petitioner are strongly controverted.

4. In the connected Criminal Miscellaneous No. 10502 of 1983 the petitioner is again the publisher of the offending publication "Madhyakalin Arab" in Hindi which is also authored by Sri Dhanpati Pandey aforesaid The said book was declared forfeited by the Government by the notification dated the 15th of September, 1983, on the ground that it contained objectionable matters and derogatory references about Prophet Hazrat Mohammad which outraged the religious feelings of the Muslim community and was otherwise punishable under Section 295A of the Penal Code.

5. The stand of the State herein is identical with the earlier case and it is specifically pointed out that the references made against Prophet Hazrat Mohammad at pages 55-57 of the book 'Madhyakalin. Arab' are grossly offensive and provocative and deliberately intended to outrage the feelings of the Muslim community.

6. Now it seems to be plain from the

aforesaid re'sume' that herein there is the

closest similarity of facts in both the petitions

and equally a virtual identity of the issues of

law arising therefrom. Mr. Nagendra Roy,

learned counsel appearing for the petitioners,

and Mr. Daman Kant Jha, the learned

Government Advocate appearing for the State,

who are representing the parties in both the

cases, are, therefore, agreed that this judgment

would govern them.

7. Since the primal issues herein turn on the language and import of Sections 95 and 96 of the Code of Criminal P.C., 1973, it becomes necessary to advert to their legislative history for the correct perspective for their interpretation. This is more so because the applicability of precedent under the earlier law would be a threshold question. Now the Code of Criminal Procedure, 1898, as originally enacted, did not apparently contain any corresponding provision for a declaration of forfeiture of prescribed publications. However, by Act 14 of 1922, sections 99A, 99B, 99C,' 99D, 99E, 99F and 99G were inserted in the Criminal P.C., 1898 (hereinafter referred to as "the old Code"). These empowered the State Government to declare certain publications forfeited and to issue search warrants for the same and the consequential procedural requirements of an application to the High Court to set aside the order of forfeiture, the evidence to be led in such a proceeding as also the mode and manner of hearing of such an application which was statutorily prescribed to be heard by a Special Bench of three judges of the High Court. When the old Code was supplanted by the Code of Criminal P.C, 1971 thereinafter referred to as "the Code"), the provisions of Sections 99A to 99G were not retained in their original form but substituted by Sections 95 and 96 of the Code. A comparison of these provisions would indicate that though the language is not literally in pari materia, yet in effect the sum and substance of the earlier law has been reincorporated with necessary changes with an eye to better draftsmanship. Thus Section 95(1) and (2) correspond to Section 99(1) and (2) of the old Code and Section 95(3) is in pan materia with the earlier Section 99G. Similarly, Sub-sections (1), (2) and (3) of Section 96 of the Code are either in pari materia or in the closest similarity to Sections 99B, 99C and 99E of the old Code respectively. Lastly, Sub-sections (4) and (6) of Section 90 correspond to Sections 99D(1) and 99D(2)

of the old Code, It, therefore, seems to follow inexorably that barring marginal consequential changes and structural recasting of the provisions, the earlier law under the old Code has been maintained intact. Therefore, the precedents of the final Court with regard to the corresponding provisions of the old Code are not only attracted but wherever they cover the issue on all fours, they have to be treated as binding under the Code as well. The legal issue arising herein has, therefore, to be determined in the light of and within the parameter of the earlier precedent wherever it governs the same.

8. Having thus noticed the historical legal backdrop, one may now turn to the impugned declaration of forfeiture in the present cases. Since a considerable amount of the submissions of the learned counsel turn around the very language of the notifications, these may be quoted at the outset :

"The 29th October, 1983 S O 1324 -Whereas it appears to the State Government that the book entitled 'Vishwa Itihas' (Pratham Bhag) written by Shri Dhanpati Pandey. Reader, Post-Graduate Department of History, Bhagalpur University, Bhagalpur, printed by Shri Shyam Bihari Press, Patna-4 and published by Ganga Pustakalay, Patna-4, contains objectionable matters and derogatory references about Prophet Hazrat Mohammad which outrage the religious feelings of the Muslim community and is an offence punishable under section 295A of the Indian Penal Code.

Now, therefore, in exercise of the powers conferred by Sub-section (1) of section 95 of the Code of Criminal Procedure, 1973, the State Government is pleased to declare every copy of the aforesaid book 'Vishwa Itihas' to be forfeited to the Government."

"The 15th September, 1983 S. O. 1129 --Whereas it appears to the State Government that the book entitled 'Madhyakalin Arab' written by Shri Dhanpati Pandey, Reader, Post-Graduate Department of History, Bhagalpur University, Bhagalpur, printed by Suryodai Press, Chak-musallahpur, Patna and published by Janki Prakashan, Ashok Rajpath, Patna/ 1979 Ganjmirkhan, Darryaganj, New Delhi, its chief distributor being Janki Prakashan,

Ashok Rajpath, Patna, contains objectionable matters and derogatory references about Prophet Hazfat Mohammad which outrage the religious feelings of the Muslim community and is an offence punishable under section 295A of the Indian Penal Code.

Now. therefore, in exercise of the powers conferred by Sub-section (1) of section 95 of the Code of Criminal Procedure, 1973, the State Government is pleased to declare every copy of the aforesaid book "Madhyakalin Arab" to be forfeited to the Government."

9. Now the frontal challenge raised at the outset by learned counsel for the petitioners, Mr. Nagendra Roy, resting as it does on the language of Section 95(1), ("the State Government may by notification state the grounds of its opinion") was that the aforesaid notifications did not contain the grounds of opinion of the Government but in fact recorded only the bare opinion itself. On this premise it was contended with persistence that a failure to state the grounds of its opinion by the State Government would per se vitiate the said action and equally the notifications. Elaborating his submission, the learned counsel sought to highlight the fact that neither the offending portion of the forfeited publications had been quoted in the notifications nor. in the alternative, a detailed gist thereof had been given therein and that even specific references to pages and paragraphs had not been made in order to identify the relevant passages. Primary reliance was placed on the case of Harnam Das v. State of U. P., AIR 1961 SC 1662 : (1961 (2) Cri LJ 815) and on the case of Narayan Das Indurkhya v. State of Madh Pra. AIR 1972 SC 2086 : (1972 Cri LJ 1323).

10. As stands already noticed, the submission aforesaid rests primarily on the very language of the statute and it is, therefore, apt to quote the relevant parts of Sections 95 and 96 of the Code for facility of reference :

"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-Aor section 153-Aor section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its opinin, 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 by 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 Court 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.

(2) & (3) .....

(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any

such matter as is referred to in Sub-section (1) of Section 95, set aside the declaration of forfeiture."

11. Before appraising and evaluating the aforesaid contention of the learned counsel for the petitioners, it seems incumbent to first determine in a way its very maintainability. A reference to Sub-sections (1) and (4) of Section 96 would indicate that the ground for setting aside the order in the application and the satisfaction of the High Court is to be directed to the issue whether the offending publications did contain

any such matter as is referred to in Sub-section (1) of Section 95 and thus comes within the mischief of one or other of the sections of the Penal Code specified therein. Earlier there had existed a considerable body of judicial opinion that both the nature of the challenge in the application against the declaration of forfeiture as also the satisfaction of the High Court were limited only to the ground that such publications did not in fact contain any such matter which may be an offence under the relevant section of the Penal Code. This seems manifest from the powerful dissenting opinion of Das Gupta, J. in Harnam Das's case (1961 (2) Cri LJ 815 (supra). However, the controversy on this point is set at rest by the majority opinion of Sarkar. J. in the said case wherein it was held as under (Para 13) : "What then is to happen when the Government did not stale 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. 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 mstified 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 (1955) 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."

In view of the categoric declaration of the law it must be held that the learned counsel for the petitioners is entitled to raise the issue and challenge the notifications on the plea of the alleged total absence of the grounds of opinion of the Government in the notifications.

12. However, coming to the factual aspect of the contention raised, it is first manifest that neither of Sections 95 and 96 oblige or mandate that the offending portion of the publications must be quoted verbatim in the declaration of

forfeiture or that an exhaustive gist thereof must be incorporated therein. Even a reference to the authorities relied upon by the learned counsel for the petitioners would indicate that this is not at all the requirement of law. What Section 95(1) commands is that the State Government has to arrive at an opinion that the publications come within the mischief of the offences specified therein and as a procedural safeguard it requires that the grounds of its opinion must be stated as well The declaration of forfeiture is consequently not required to be an exhaustive or self-contained document incorporating all the offending material as also each and every fact on which it is based. Any such detailed recitals or contents in a notification are neither mandated by statute nor precedent and would perhaps be incongruous in the nature of the notification envisaged by the statute.

13. The stand of the learned counsel for the petitioners may also be tested from another refreshing angle. It is hardly in dispute that the very object of the law herein is to proscribe forthwith and prevent any wide ranging publications of seditious and other offending materials in order to avoid the outraging of the feelings of a particular community or promotion of class hatred betwixt the citizens. The purpose here is preventive and not punitive. In view of the large scale public mischief apprehended, it is sought to be nipped in the bud by straightway forfeiting the publications. To require as a matter of law that the offending portion thereof should be quoted verbatim in a Government notification or to give an exhaustive gist thereof would in effect be giving widest and authentic publicity to the offending material and in fact of defeating the larger purpose underlying sections 95 and 96 of the Code. Doing so would enable the malicious, seditious and offending publications to pervade every nook and corner through the media of Government notifications even though the original circulation of the publications may be acutely limited. I am, therefore, of the view that it is neither the requirement of law nor of precedent and prudence that the offending portions of the publications, which may be directly and flagrantly outraging the feelings of a particular community or promoting acid hatred betwixt the two classes of citizens, should be either quoted verbatim or have an authenticated gist

thereof in the statutory notifications. It is amply sufficient if on the grounds of opinion, that is, the conclusions of fact being duly stated, the Government's opinion arrived at therefrom is clearly exhibited that the publications come within the mischief of the law. Therefore, the submission that the notifications must bear a verbatim record of the forfeited materials or give a detailed gist thereof is untenable and must be rejected.

14. Adverting now to the notifications it is plain therefrom that the opinion of the Government that both the publications contained' materials which would be an offence under Section 295A of the Penal Code is clear and categoric. Equally the grounds of its opinion are spelt therein as well. In terms it is first mentioned that these contain objectionable matter. It is true that this is not spelt out in any great detail yet it is evident enough as a fact that the State Government's opinion was that the publications contained matters which are plainly objectionable. However, immediately thereafter more specifically it is stated that these references to Prophet Hazrat Mohammad are derogatory. The conclusion of fact herein is obvious that in the assessment of the State Government the relevant contents of the publications are directed to denigrate the Prophet. Again the conclusion of fact arrived at by the State Government as to the result of the said publications is categoric that they would outrage the religious feelings of the Muslim community. Lastly though it would not in any way be conclusive, it is clearly concluded that the mischief herein comes within the ambit of Section 295A of the Penal Code. Therefore, the grounds of opinion stated herein show a clear application of mind by the Government pertaining to the objectionable matter, the nature of the derogatory references, the result flowing therefrom with regard to the feelings of the Muslim community and the fact that the same amounts to an offence under Section 295A of the Penal Code.

15. Though it is now axiomatic after Harnam Das's case (1961 (2) Cri LJ 815) (supra) that the notification must contain the grounds of opinion of the State Government and not merely the bare opinion as such yet it is equally well settled that these grounds do not have to be exhaustive or a self-contained Code by itself. In State of U P. v. Lalai Singh Yadav,

AIR 1977 SC 202 : (1977 Cri LJ 186) it has been succinctly held that though the statement of the grounds of opinion is a must yet these may be reasonably brief in the following words :

"We do not mean to say that the grounds or reasons linking the primary facts with the forfeiter's opinion must 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 or taciturnity. An order may be brief but not a blank."

In the light of the above it would follow both as a matter of fact as of law that the two notifications herein specify the test of stating the grounds of opinion of the Government concisely yet briefly. Inevitably the submission of the learned counsel for the petitioners for assailing the notifications on the alleged total absence of the grounds of opinion of the State Government must fail and is hereby rejected.

16. The next contention forcefully urged on behalf of the petitioners was that the offending passages do not contain any matter which would be within the ambit of Section 295 of the Penal Code and, therefore, punishable thereunder. Herein the emphasis is on the fact that to be an offence the publication must be with a deliberate and malicious intention. In sum the contention was that unless the mens rea of both malicious and deliberate intent is first established, the mere fact of the material being offensive and outrageous to the religious feelings of a community is by itself insufficient to bring the matter within the mischief of the statute. Particularly it was argued that the author was a Post-Graduate teacher of History and a writer of some standing and, therefore, the charge of deliberate and malicious intent in making the publications would not be easily laid at his door and the same must be conclusively proved and established.

17. To appraise the aforesaid contention it is first apt to quote the provisions of section 295-A of the Indian Penal Code :

"295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.-- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by

words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both."

It is manifest that the aforesaid provisions require the mens rea of a deliberate and malicious intention of outraging the feelings of a community. However, from this it would be somewhat fallacious to mathematically equate the proceedings under Sections 95 and 96 of the Code with a trial under Section 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. As is well known, criminal intent may be presumed or equally established by evidence. Proceedings under Section 95 do not necessarily require leading of any evidence before action is taken under Sub-section (1) thereof. Indeed to require that a deliberate and malicious intention must first be proved at the threshold stage before the Government by evidence (including any rebuttal thereof) as a condition for acting under Section 95(1), as if an accused person was in the dock, would, in effect, virtually frustrate the preventive purpose of the said section. However, one cannot go to the other extreme as well that for the purposes of Section 95(1) the prescribed intent for the offences under the Penal Code would become wholly irrelevant. Indeed, what the law seems to require here is a synthesis betwixt these two extremes. This is evident from the phraseology employed in Section 95(1). Therein the requirement is -- "appears to the State Government to contain any matter the publication of which is punishable". The statute does not require that it should be "proved" to the State Government or that it should be "satisfied" that all requirements of the punishing sections including mens rea are fully established. It is well known in legal terminology that the word "appears" is even mellower than "satisfied" and more so from the word "proved". Therefore, all that Section 95(1) requires is that the ingredients of the offence should "appear" to the Government is complied with and not that they should be "proved" at the threshold or that the Government should be inflexibly

"satisfied" about them. Therefore, the prima facie opinion of the Government that the offending publication would come within the relevant section of the Penal Code with its requirements of intent would be adequate here to enable it to act under Section 95(1) of the Code. Herein the general rule that a man is presumed to intend the natural consequences of his act would be attracted and such intention has to be gathered primarily from the language and import of the offending publication and not necessarily by extrinsic evidence. Reference in this connection may first be made to Wallace-Johnson v. The King, 1940 AC 231 at p. 241: "The submission that there must be some extrinsic evidence of intention, outside the words themselves, before seditious intention can exist, must also fail, and for the same reason. If the words are seditious by reason of their expression of a seditious intention as demied in the section, the seditious intention appears without any extrinsic evidence. The Legislature of the Colony might have defined 'seditious words' by reference to an intention proved by evidence of other words or overt acts. It is sufficient to say they have not done so."

Therefore, 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. This view is buttressed by the decision of the Special Bench In re : Amrita Bazar Patrika Press Limited, AIR 1920 Cal 478 : (1920 (21) Cri LJ 98) in the context of the somewhat analogous provisions of the Press Act and more directly by the undermentioned observation of the Special Bench of the Allahabad High Court in Kali Charan Sharma v. Emperor, AIR 1927 All 649 (at p. 650) : "When the case was opened there was some discussion regarding the onus of proof, it being contended on behalf of the applicant that it lay upon the Government to establish that the order complained of was justified by law. Speaking for myself I feel clear that this argument is not well founded in view of the language of Section 99-B. Where an application is

made under that section to have an order of forfeiture set aside on the ground that the matter published does not fall within the mischief of Section 153-A, LP.C, it is in my opinion for the applicant to convince the Court that for the reasons he gives the order is a wrong order."

And again (at p. 652):

"If the language is of a nature calculated to produce or to promote feelings of enmity or hatred the writer must be presumed to intend that which his act was likely to produce. This was the principle laid down by Best, I, in Burdett's case (1820) 4 B & A 120, in dealing with a case of seditious libel and the same principle clearly applies to the case of a publication punishable under Section 153-A, LP.C"

To conclude on this aspect, the challenge on behalf of the petitioners that the requisite intention had not been proved by extrinsic evidence and further that such intention must be conclusively proved and established before the Government under Section 95(1) of the Code must fail and is rejected.

18. Now what are the acid tests for the satisfaction of the High Court or otherwise that the offending publication contains any such matter as is specified in Section 95(1)? On behalf of the State Mr. Daman Kant Jha has first projected the aspect that the power here is a preventive one in the larger interest and the maintenance of class harmony within the State. Therefore, it was argued that if the Government bona fide and prima facie comes to the opinion that the publication would be punishable under Section 295-A and in order to prevent the mischief forfeits the publication, the Government's opinion and consequent action should not be lightly interfered with. Indeed, the submission was that the High Court should not substitute its own opinion in place of the State Government. The test advocated was not the unusual one that if the Government's opinion could have been reasonably arrived at then it is not for the High Court to set aside the exercise of power under Section 95(1) merely because its own opinion tinged with judicial liberality may be different. In other words, the State's stand was that even if two opinions could be reasonably arrived at on the factual material then the High Court should not set aside the State Government's

action. In sum, the test canvassed was that if on the stated grounds the opinion of the Government could be reasonably arrived at, the same would be immune from interference. In fairness to him one must notice that the learned counsel for the State did not take up the extreme stand that the opinion of the State Government would be conclusive once the procedural requirements of Section 95( 11 were satisfied,

19. Despite the plausibility of the aforesaid submission, I am unwilling to enter the thicket of the slippery test as to the conclusion of a reasonable man on the factual material or whether the opinion of the Government would be reasonably arrived at. It appears to me that reading Sections 95 and 96 together, the first provision lays down the foundational or jurisdictional data for the exercise of the power conferred under Section 95(1). However, when it comes to testing and upholding the declaration of forfeiture under Section 96(4) then the solitary test prescribed is the satisfaction of the High Court itself with regard to the offending material being punishable or not under the relevant section of the Penal Code specified in the notifications. The jurisdiction of the High Court is not merely confined to judging the opinion of the Government and whether it could be reasonably arrived at but is much wider in weighing for itself and arriving at its own conclusion (on the basis of the factual statement of the grounds) with regard to the offending publication, and whether the same comes within the ambit of punishability under the relevant section. Thus the primary test is the satisfaction of the High Court itself with regard to the justifiability of the declaration of forfeiture and all other considerations are subservient thereto. It is not that the State Government's opinion alone and its prima facie satisfaction is the sole issue but instead the High Court's own assessment and satisfaction about the publication being punishable and coming within the four comers of the mischief of a particular section of the Penal Code is the primary question. Such satisfaction alone is the pith and substance of the matter and not any tautological gambit whether the State Government could have reasonably arrived at such an opinion or that the test of a reasonable man doing so should be satisfied. Therefore, in the ultimo ratio it is

the satisfaction of the High Court alone whether the offending publication is one which comes within the ambit of the relevant punitive section of the Penal Code which would be conclusive.

20, To summarise on the legal aspects, it must be held:

(i) That 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.

(ii) That the mens rea prescribed by sections 124-A, 153-A, 153-B, 292, 293 and 295-A of the Penal Code is not to be conclusively established by extrinsic evidence before the Government as a pre-condition of forfeiture.

(iii) That the intention prescribed by the relevant section of the Penal Code is to be gathered primarily from the language, contents, and import of the offending publication.

(iv) That the onus lies on the applicant to dislodge and rebut the prima facie opinion of the Government that the offending publication is punishable under one or other of the relevant sections of the Indian Penal Code; and

(v) That the satisfaction of the High Court alone that the offending material does not contain any matter which is punishable under one or other of the relevant sections specified in Section 95(1)(b) is the conclusive factor in either upholding or quashing the declaration of forfeiture.

21. Now applying the above and testing the first case on its anvil it deserves notice that in 'Vishwa Itihas' the only offending portion relied upon is a short paragraph of five lines at page 174 of a relatively voluminous volume running into 328 pages. A reference to this paragraph would indicate that apparently this passage was sought to be viewed isolatedly and as if completely torn from its context. It is well settled that the offending publication is fo be viewed as a whole and the intent of the author has to be gathered from a broader perspective and not merely from a few solitary lines 6r quotations, Reading the alleged offending paragraph in its context it is manifest that the sub-Chapter begins with the heading "Character of Mohammad Sahib". As is inevitable in worldly affairs, it is pointed out that there are two aspects of appraisal of his variegated personality before us. Reference is

then made to the views of foreign historians by way of express reference and quotation from the well-known work of H. G. Wells "Outline of History". Equally reference is then made to the opinion of Professor Davis as evidenced by his book "History of World Civilisation". Having noticed these the author himself states in unequivocal terms that he does not agree with any such critical assessment Thereafter what appears to be his own view, which is specified as the second aspect of Prophet Hazrat Mohammad's character, is elucidated in some detail This immediately follows and an integral part of the alleged offending paragraph and, therefore, a free translation thereof deserves quotation in extenso: "The aforesaid view cannot be treated as the absolute truth. The works of Mohammad Sahib are as clear as pages of open books before us. If a close study of this is made then it would be manifest that Mohammad Sahib was a farsighted man and he knew as to how the muslim society could be organised by passing through which course. It was possible for men only like Mohammad Sahib to teach social ideals, lessons of discipline and the ways of removing their differences to the people of Arabia. It is not the less praiseworthy that he played the part of Rasool with dignity after facing thousands of great difficulties and remaining steadfast. Islam which was basically a religion became an empire on account of him. Khalifas like Abu Baqar, Umar, Usman, All as also Abbasi established a big empire in the name of Mohammad Sahib which can be counted in the category of big States. Therefore, Mohammad Sahib was not only a reformer but also a statesman."

It would seem manifest from the above that the author's own appraisal and assessment, far from in any way being derogatory, are literally and extremely laudatory of Prophet Hazrat Mohammad. To hold that these can in any way outrage the religious feelings of the Muslim community thus appears to me as wholly untenable, It is well to recall that to come within the ambit of Section 295-A the intent must be both malicious and deliberate. As was noticed earlier, the author is a man of some standing amongst the text book writers in history and the offending passage when read in its context would show that he was at

pains to repel the views of foreign historians. We had repeatedly pressed the learned counsel for the State to pin point any other objectionable matter in the whole volume of 'Visbwa Itihas', though it would be hardly permissible for him to rely on anything which was not stated in the grounds of opinion and in the specific averments in the counter-affidavit Nevertheless, be frankly conceded his inability to point to anything more. Nor can one lose sight of the fact that in a history text book the references are with regard to historical facts and a narration thereof cannot easily be labelled as a deliberate or malicious act to outrage the feelings of a particular community. It is axiomatic that perhaps two opinions are easily possible about historical events and equally of the great world figures who may have dominated the same. As was observed in Kali Charan Sharma's case (AIR 1927 All 649) (SB) (supra) in countries where there is a certain amount of religious freedom allowed a modicum of criticim would be permissible if it does not stoop down too low. Equally in this context a reference may be made to the recent precedent in Varsha Publications Pvt. Ltd. v. State of Maharashtra, 1983 Cri LJ 1446 at p. 1454 (Bom) (SB): "Different considerations will prevail when we are to consider a scholarly article on history and religion based upon research with the help of a number of reference books. It will be very difficult for the State to contend that a narration of history would promote violence, enmity or hatred. If such a contention is accepted, a day will come when that part of history which is unpalatable to a particular religion will have to be kept in cold storage on the pretext that the publication of such history would constitute an offence punishable under section 153-A of the I.P.C. We do not think that the scope of Section 153-A can be enlarged to such an extent with a view to thwart history. For obvious reasons, history and historical events cannot be allowed to be looked as a secret on a specious plea that if the history is made known to a person who is interested to know the history, there is likelihood of someone else being hurt Similarly, an article containing a historical research cannot be allowed to be thwarted on such a plea that the publication of such a material would be hit by Section 153-A. Otherwise, the position wifl be very precarious. A nation will have to forget its

own history and in due course the nation will have no history at all This result cannot be said to have been intended by the Legislature when Section 153-A of the I.P.C. and Section 95 of the Cr. P. C. were enacted If anybody intends to extinguish the history (by prohibiting its publication) of the nation on the pretext of taking action under the above sections, his act will have to be treated as mala fide one."

In the light of the above and the reasons earlier recorded, it seems to follow inexorably that the solitary five line paragraph in "Vishwa Itihas" in its true context cannot possibly be said to contain matter which would be punishable under the stringent requirements of Section 295-A of the Penal Code. The order of forfeiture, therefore, cannot be sustained and is hereby set aside. Criminal Miscellaneous No. 11851 of 1983 is allowed.

22. Coming now to the second case, the categoric stand of the respondent State is rested on the offeasive paragraphs in pages 55 to 57 of the book "Madhyakalin Arab'. A plain reading thereof can leave no manner of doubt that these are offensive in the extreme and particularly so in the context of being made with regard to the founder and head of one of the greatest religions of the world. Though marginally some shelter is sought to be taken under the opinions of foreign historians, the author herein in his own personal assessment has categorically projected the personal and private life of the Prophet in terms patently derogatory and denigratory. Apart from direct allegations, the passages equally contain innuendoes which leave little doubt about the author's intent to put it in a lurid light As has been noticed earlier, the intention of the author and the relevant mens rea for the offence is to be gathered primarily from the language content and import of the offending passages. Nor can one fail to notice that these offending passages are inserted into a text book of History for young student to affect their young and resilient minds the effects whereof cannot but be either deleterious or one of grave moral indignation. Thus, there does not seem to be any doubt that both the specific allegations and the vague innuendoes would gravely outrage and scandalise the feelings of a devoted religious community passionately attached to its founder Prophet Hazrat Mohammad Both objectively and subjectively there would thus

appear a deliberate and malicious intention to outrage the religious feelings of the Muslim community thereby. Taking all these into consideration I am of the view that the offending passages would squarely come within the punitive ambit of Section 295-A of the Penal Code and consequently the governmental action in the declaration of forfeiture was more than amply satisfied.

23. Accordingly, Criminal Miscellaneous No. 10502 of 1983 is without any merit and is dismissed.

S. Sarwar Ali, J.

24. I entirely agree with the enunciation of law and the summary thereof paragraph 20, in the judgment of my Lord the Chief Justice. I also agree that Cr. Misc. 10502/1983 be dismissed. In my opinion, however even. Cr Misc. 11857 1983 is fit to be dismissed: "Vishwa Itihas" is meant as a text book for students of Intermediate in Articles lLA.), while "Madnyakalin Arab" is meant for students of Master of Articles (M. A.), both being by the same author, the petitioner. The learned Chief Justice has held in relation to the relevant writing in "Madhyakalin Arab" that they project "the personal life of the prophet in terms patently derogatory and denigratory" -- a view with which 1 respectfully agree. The question is : What is the position with respect to the objectionable writing in "Vishwa Itihas". At the outset I must state that in law it matters not whether the objectionable writing constitutes the opinion of the author himself or is the opinion of someone else, incorporated or quoted in his writing or publication. It is the effect of the words used and not as to whose opinion they are, which is the determining factor. All words, whether spoken or written which "insult or attempt to insult the religion or religious belief of any class comes within the mischief of Section 295A of the Penal Code subject to the existence of the necessary intent as mentioned in the said section. To interpret the section as requiring that the objectionable matter should project the personal opinion of the author is to read something into Section which is not there."

25. Having stated what I think is the correct legal position, I must state here that so far as the objectionable writing is concerned it cannot be said that the author has dissociated himself

with the views expressed therein. Dissociation is negatived on two grounds. First, the author after mentioning the derogatory matters says "But the aforesaid opinion cannot be said wholly true". Clear inference is that according to the author, it is partly correct and partly not. As to what pan is correct and what is not is left to the reader to guess. Secondly, what the petitioners own views are is apparent from his other book "Madhyakalin Arab," which has been rightly proscribed under Section 95 of the Code of Criminal Procedure.

26. What then is the effect of the objectionable words? Do they "insult or attempt to insult religion or the religious belief of any class of persons", Muslims in this case, is one of the root questions that has to be considered and answered.

27. Writing on the character of the Prophet (Reading of the Chapter being "Muhammad Sahib Ka Chariter"), the author introduces the subject thus :

"Two aspects of the character of Muhammad Saheb are brought to light before us. In one aspect he is brought to light before us as cunning, sexy, and greedy, and in another aspect he is brought to light before us as a Social reformer, a founder of religion and a Maker of State."

Thus the two aspects mentioned are, one relating to the Prophet's personal life and character as a man, and the other as leader of the people, community and religion. The words used in this introduction relating to the Prophet as a man are, in my judgment, provocative, derogatory and denigratory. They, thus, in my opinion, are insulting to the religious belief of a class of persons the Muslims. So much for the introductory passage.

28. The second paragraph mentions the opinions of H. G. Wells and Davies who have been called "eminent historians". The objectional words used by them in respect to the character of Prophet and incorporated in this paragraph are also clearly insulting to the religious belief of the Muslim Community.

29. In view of the above finding and in view of the position in law, the petitioner has to satisfy this Court that in writing the offending

materials the requisite intent, as mentioned in section 295A of the Indian Penal Code was not there.

30. Learned counsel for the petitioner placed much reliance on the passage quoted in the judgment of my Lord the Chief Justice. A careful reading of the same would, however, reveal that the petitioner was dealing there with the personality of the Prophet as a leader of the people and community and a propagator of a faith or religion. The provocative and derogatory words in the earlier two passages have not been rejected or characterised as wrong or even representing a prejudiced view.

31. The existence of intent has to be inferred primarily from the words used, but other relevant materials can be looked into. The occasion on which the objectionable materials have been written, the admitted opinion of the author in some other publication of his, are all matters which may be put in the scales. In my opinion the non-existence of the requisite intent is negatived from the following : --

(a) In order to magnify the importance of the derogatory opinion mentioned by him, the petitioner has incorrectly described H. G. Wells as an eminent historian. No doubt H. G. Wells was a well known author, but the mere fact that his publications included a single popular book in the West styled "Outline of history" does not entitle him to eminence as a historian. The petitioner being himself a teacher of history, the clothing of R G. Wells with the mantle of an "eminent historian" cannot be said to be a bona fide mistake.

(b) In projecting the character of the Prophet as an individual the petitioner has chosen to mention two of the Christian European authors who have chosen to use offensive words about the Prophet As a historian petitioner could not be unaware of the fact that Prophet of Islam has been much maligned by the Christian authors. This has been explained by a European historian himself. Professor W. Montgomary Watt, Professor of Arabic and Islamic Studies in the University of Edinburgh in his book "Muhammad-- Prophet and Statesman (Paperback Edition 1964, at page 231) has explained thus; "Of all the world's great men none has been

so much maligned as Muhammad We saw above how this has come about For centuries Islam was the great enemy of Christendom, since Christendom was in direct contact with no other organised states comparable in power to the Muslims. The Byzantine empire, after losing some of its best provinces to the Arabs, was being attacked in Asia Minor, while Western Europe was threatened through Spain and Sicily. Even before the crusades focused attention on the expulsion of the Saraceans from the Holy Land, medieval Europe was building up a conception of "the great enemy".

If the petitioner was acting without malice, it was expected that at least be would give even a mild warning against the opinion quoted by him.

(c) The occasion on which the 'words' were written is also of importance. The book was being written for the students of I. A. class-young impressionable students usually between the age of 16 and 18. They are not expected to examine critically what is stated in their text books. A young student reading the offending passages could not but form a very poor opinion of the personal character of the Prophet

(d) So far as assessment of personal character of the Prophet is concerned the writing in question is far from a balanced assessment of the same.

(e) The intent is also inferable from petitioner's own writing in "Madhyakalin Arab", a book meant for higher classes. There he has stated "The successes and achievements of the life of Muhammad Saheb laid a curtain on the shortcomings of the personal life of Muhammad Saheb....."

32. Learned counsel for the petitioner relying on Kali Charan Shanna v. Varsha Publication Pvt. Ltd., (1983 Cri LJ 1446) (supra) contended that even if the writing may be taken to be criticism, it was permissible in law. But as pointed out in Varsna Publication's case "Scholarly article on history and religion based upon research with the help of a number of reference books" will be permissible. But the present writing is neither scholarly nor based on research. It only incorporates tile ipse dixit of two prejudiced authors to support the maligning of the image of the Prophet This is not, in my opinion, permissible in law.

33. In my opinion, therefore, the petitioner has not been able to satisfy that the objectionable writing did not contain any such matter as is referred to in Section 95(1) of the Code of Criminal Procedure. I would accordingly dismiss Cr. Misc. 1185/1983.

34. Before concluding 1 must express my surprise and disappointment at the casual manner in which books are prescribed in the courses of study. Had the Committee which had approved the inclusion of the two books in the courses of study read the same, I have no doubt that at least the majority of the members would have found the books with the offensive words were not fit to be prescribed in the courses of study. Everything appears to have been done in a casual manner, In future the Universities in this State, it is hoped, would be more circumspect and careful.

B.P. Jha, J.

35. I

entirely agree with the opinion of the Hon'ble the Chief Justice.

36. It is held unanimously that-

l.(i) The statement of the ground of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture.

(ii) The mens rea prescribed by Sections 124-A, 153-A, 153-B, 292, 293 and 295-A of the Indian Penal Code is not to be conclusively established by extrinsic evidence before the Government as a pre-condition of forfeiture.

(iii) The intention prescribed by the relevant section of the Indian Penal Code is to be gathered primarily from the language, contents, and import of the offending publication.

(iv) The onus lies on the applicant to dislodge and rebut the prima facie opinion of the Government that the offending publication is punishable under one or other of the relevant sections of the Indian Penal Code; and

(v) The satisfaction of the High Court alone that the offending material does not contain any matter which is punishable under one or other of the relevant sections specified in Section 95(1)(b) is the conclusive factor in either upholding or quashing the declaration of forfeiture.

2. Criminal Miscellaneous No. 10502 of 1983 Nand Kishore Singh v. The State of Bihari is without any merit and is hereby dismissed. It is held by majority that the order of forfeiture in Criminal Miscellaneous No. 11851 of 1983 (Suresh Kumar v. The State of Bihari cannot be sustained and is hereby set aside.