State Of Maharashtra & Ors vs Sangharaj Damodar Rupawate & Ors

State of Maharashtra & Ors. -- Appellants

VERSUS

Sangharaj Damodar Rupawate & Ors. -- Respondents

JUDGMENT

D.K. JAIN, J.:

Leave granted.

2.This appeal, by special leave, filed by the State of Maharashtra and its

functionaries, arises out of the judgment dated 26th April, 2007 delivered

by the High Court of Judicature at Bombay in Writ Petition No.1721 of

2004. By the impugned judgment, passed in an application under Section

96 of the Code of Criminal Procedure,1973 (for short "the Code") read

with Article 226 of the Constitution of India, the High Court has set aside and quashed notification dated 20th December, 2006, issued in the name

of Governor of Maharashtra in exercise of the powers conferred by sub-

section (1) of Section 95 of the Code, directing forfeiture of every copy of

the book captioned as "Shivaji - Hindu King in Islamic India" written by

one Prof. James W. Laine.

3.The three writ petitioners, who are respondents No.1, 2 and 3 herein,

are respectively stated to be a well known lawyer and a public activist in

the Ambedkarite movement, intended to mobilize the deprived sections

of the society; (ii) a well-known film maker, whose documentaries are

stated to be known the world over for their artistic finesse, conveying

democratic and secular message and (iii) a social activist. Respondents

No. 4 to 6 impleaded as such vide this Court's order dated 29th August,

2007 respectively are Prof. James W. Laine, the author of the book,

Oxford University Press, India, the publisher through its Constituted

Attorney Mr. Manzar Sayed Khan and Mr. Vinod Hansraj Goyal,

proprietor of Rashtriya Printing Press, Delhi, the printer of the book.

4.For the purpose of appreciation of the questions raised, the foundational

facts may be noticed. These are:

On 28th May, 2003, respondent No. 5, the publisher entered into an

agreement with Oxford University Press, U.S.A. for publishing in India a

paper-bound book entitled "Shivaji - Hindu King in Islamic India"

2 authored by Prof. James W. Laine (respondent No.4), a Professor of

Religious Studies, Macalester College, U.S.A. The said book was

originally published by Oxford University Press, Inc., U.S.A. As per the

terms of the agreement, respondent No.5 agreed to reprint the book

without any changes or deletions. In all, 803 copies of the book were

published i.e. 488 copies in June and 315 copies in October, 2003 and

was released in July 2003 and 215 copies were sold in the month of July

itself.

On 10th November 2003, the publisher (respondent No.5) received

a letter from four historians whereby the publisher and the author had

been asked to retract the objectionable statement complained of and

tender an apology. Mr. Manzar Sayed Khan, expressed regrets for the

said statement and informed the objectors that instructions had been

issued to all his offices in India to immediately withdraw all copies of the

book from circulation. After withdrawal of the book from circulation, a

mob at Pune blackened the face of a Sanskrit Scholar Shri Shashikant

Bahulkar whose name appeared in the acknowledgement of the book,

having helped the author, Prof. James W. Laine, by providing him with

some information during his visit to Pune. This incident was widely

reported in the press. On 28th December, 2003, the author Prof. James W.

Laine sent a fax, apologising for the mistake, if any, committed in

3 writing the passage and stated that he only was responsible for the said

statement written in the book, and the publisher was not at all responsible

for the same. On 5th January, 2004, a mob of 100 to 125 persons

allegedly belonging to the Sambhaji Brigade ransacked Bhandarkar

Oriental Research Institute (BORI), Pune and destroyed a large number

of books and rare manuscripts. This incident was also widely reported in

the press.

On 7th January, 2004, respondent No.4, the author in an interview,

explained the reason for writing the book and expressed deep anguish at

the destruction of rare manuscripts and books in BORI, Pune. Four days

after the alleged incident i.e. on 9th January, 2004, the State of

Maharashtra, the appellant herein, registered a first information report

(for short "FIR") at Deccan Police Station, Pune, against respondents No.

4 to 6 i.e. Prof. James W. Laine, the author, Mr. Manzar Sayed Khan,

the publisher and Mr. Vinod Hansraj Goyal, the printer of the book under

Sections 153, 153-A and 34 of the Indian Penal Code, 1860 (for short

"the IPC").

On 15th January, 2004, in exercise of powers conferred by sub-

section (1) of Section 95 of the Code, the Government of Maharashtra

issued a notification declaring that every copy of the aforementioned

book shall be forfeited to the Government. The said notification was

4 challenged in the Bombay High Court by respondents No.1 to 3 herein.

However, during the pendency of the petition, this notification was

withdrawn and another notification dated 20th December, 2006 was

issued. The notification reads as follows:

"GENERAL ADMINISTRATION DEPARTMENT Mantralaya, Mumbai 400 032, dated th the 20 December, 2006

NOTIFICATION

CODE OF CRIMINAL PROCEDURE, 1973.

No. BAP-2004/422/C.R.113/2004/XXXIV. - Whereas, Shri Chhatrapati Shivaji Maharaj is revered by various sections of the people domiciled in the State of Maharashtra;

And Whereas, the Oxford University Press having its office at YMCA Library Building, Jai Singh Road, New Delhi 110 001, has in the Year 2003, published a book, captioned as "SHIVAJI - Hindu King in Islamic India" written by one Shri James W. Laine, having ISBN 019 5667719 containing 127 pages (hereinafter referred to as "the said Book");

And Whereas, the said author has in his said Book, made several derogatory references specified in the Schedule appended hereto regarding Shri Chhatrapati Shivaji Maharaj, in particular about his parentage and the Bhosale family to which he belonged;

And Whereas, publication of the said Book containing the said derogatory references is prejudicial to the maintenance of harmony between different groups and has disturbed the public tranquillity;

And Whereas, the publication and circulation of the said Book, has not only already resulted in causing enmity between the persons who revere Shivaji and other persons who may not so revere; but is likely to continuously cause such enmity;

5 And Whereas, the said author has in the "ACKNOWLEDGMENTS" to the said Book has expressed gratitude to the "Bhandarkar Oriental Research Institute, Pune" and the librarian and other Scholars therein;

And Whereas, after publication of the said book, there was agitation against the said "Bhandarkar Oriental Research Institute, Pune", by members of an association called as "Sambhaji Brigade" and certain other people revering Shri Chhatrapati Shivaji Maharaj;

And Whereas, for publication of the said Book, an offence under sections 153, 153A read with Section 34 of the Indian Penal Code has been registered in the Deccan Gymkhana Police Station, Pune as C.R. No. 10 of 2004.

And Whereas, for the reasons aforesaid, the Government of Maharashtra is of the opinion that the circulation of the said Book containing scurrilous and derogatory references against Shri Chhatrapati Shivaji Maharaj has resulted in causing enmity between various communities and has led to acts of violence and disharmony and that any further circulation of the said Book is likely to result in breach of peace and public tranquillity and in particular between those who revere Shri Chhatrapati Shivaji Maharaj and those who may not; and cause disturbances to public tranquillity and maintenance of harmony between such groups and as such the said Book should be forfeited;

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 95 of the Code of Criminal Procedure, 1973 (2 of 1974), read with Section 21 of the General Clauses Act, 1897 (10 of 1897) and of all other powers enabling it in that behalf and in supersession of the Government Notification, General Administration Department, No. BAP-2004/422/C.R.113/2004/XXXIV, dated the 15th January 2004, the Government of Maharashtra hereby declares that every copy of the said Book shall be forfeited to the Government.

Schedule

1. "So when Shivaji opened his eyes on the world, he was nurtured by a mother who had been deserted by her

6 husband and left to give birth in a hill fortress 60 kms. North of Pune." (Introduction page 4).

2. "Looking back from the coronation in 1674, the Killing of Afzal Khan in 1659 was not simply an act of courage, it was premeditated violence in the service of the Brahmanic world order." (Chapter II, The Epic Hero, page

25).

3. "Thus Shivaji could argue that his family should not be classified a Kunbi peasant or shudra clan, but was, in fact, related to Rajput, Aryan Kshatriyas. This led to a general ambiguity about the status of all Marathas." (Chapter IV "The Patriot", page 66).

4. "Here we have a kind of Brahmin prejudice that Marathas might make admirably fierce warriors but will not have prudence of the Brahmins. Thus Ranade argues that the national movement drew on the talents and loyalty of all classes, but he maintains the critical importance of the Brahmins Ramdas and Dadaji in his narrative. (Chapter IV "The Patriot", page 76).

5. "In other words, Shivaji's secularism can only be assured if we see him as motivated less by patriotism than by simple quest of power." (Chapter IV "The Patriot", page 77).

6. "Shivaji's parents were married under trying circumstances. They were children, and Jijabai's parents opposed the match, considering themselves, as Jadhava (Yadavas), to be too aristocratic to accept a groom from the Bhosles, a clan not accepted as one of ninety-six upper class Maratha families. (Chapter V "Cracks in the Narrative", page

91).

7. "The repressed awareness that Shivaji had an absentee father is also revealed by the fact that Maharashtrians tell jokes naughtily suggesting that his guardian Dadaji Konddev was his biological father." (Chapter V "Cracks in the Narrative", page 93).

8. "One could assume, as Sarkar did, that he (Shivaji) agreed to go to Aurangazeb's court in Agra because he had hopes (sic) of being made Mughal Viceroy of the Deccan. Had he received such an honour (sic), it is doubtful

7 that he would have planned a coronation eight years later, but would have conducted his career much as his father did as an Aadil Shahi noble and Governor of Bangalore." (Chapter V "Cracks in the Narrative", page 99).

By order and in the name of the Governor of Maharashtra, MANISHA MHAISKAR, Joint Secretary to Government."

5.In view of the said development, with the leave of the Court, the

petition was amended and challenge to notification dated 20th December,

2006 was laid mainly on the grounds that: (1) there was no material to

show that the publication of the book had resulted in disturbance of

public tranquillity or maintenance of harmony between various groups as

set out therein, and (2) the publication does not disclose any offence

under Section 153-A of the IPC. Finding substance in both the grounds,

as stated above, by the impugned judgment, the High Court has quashed

and set aside the notification dated 20th December, 2006 by observing

thus:

"We called upon the learned Associate Advocate General to show us any material in their possession which would indicate, that the publication of the book is causing enmity between various communities and which were those communities. The learned Associate Advocate General was unable to produce or disclose any such material or which were the groups based on religion, race, language or religion or caste or communities who do not revere Shree Chhatrapati Shivaji Maharaj. The only answer was, that the order is based upon the grounds set out in the notification. In our opinion, to make a legal order under Section 95 of the Code of Criminal

8 Procedure, apart from the fact that offence as set out therein must be indicated, the notification must disclose the grounds based on which the State has formed an opinion, that the author by his publication sought to promote or attempted to promote disharmony or feeling of enmity between various groups as set out therein. All that is pointed out to us is, that subsequent to the publication of the book, there was an agitation against Bhandarkar Oriental Research Institute, Pune by members of an Association called as "Sambhaji Brigade"

and certain other people revering Shree Chhatrapati Shivaji Maharaj. We pointedly asked the learned Associate Advocate General whether the employees of the Bhandarkar Institute, Pune constituted that group or class. It was fairly conceded before us that it was not so. Whether a group of employees would constitute a group is not required to be answered. In other words, there is nothing on record to show that the publication was likely to promote disharmony or feeling of enmity between various groups, as likely to cause disturbance to public tranquillity and maintenance of harmony between various groups. Bhandarkar Oriental Research Institute Pune, enjoys an international reputation as a research institute in the State of Maharashtra. It was unfortunate that for whatever reasons the said institute was vandalized and precious documents destroyed History is the loser."

6.Being aggrieved, the State of Maharashtra and its functionaries are

before us in this appeal.

7.We have heard Mr. Shekhar Naphade, learned Senior Counsel

appearing on behalf of the petitioners; Mr. Prashant Bhushan, learned

counsel appearing on behalf of the respondents No.1 to 3 and Ms. Kamini

Jaiswal, learned counsel appearing on behalf of the respondents No.4 to

6.

9

8.Prefacing his arguments with the historical perspective of rivalry

between Brahmins and Marathas, both at the social and the political level,

Mr. Naphade submitted that some of the words used in the book and

culled out in the notification under different items clearly try to resurrect

the social and political tensions between Brahmins and Marathas and try

to drive a wedge between the said two communities. It was submitted

that the notification in question clearly sets out that the book contains

derogatory references to Chhatrapati Shivaji Maharaj and is prejudicial to

the maintenance of harmony between different groups and that in fact it

had disturbed the social tranquillity of the State. It was contended that

the notification has to be read in its entirety and if it is so read, it clearly

refers to threat to maintenance of harmony between two groups, which is

clearly demonstrated by an attack on Bhandarkar Institute by Sambhaji

Brigade as a sequel to the publication and circulation of the book. While

candidly conceding that the operative part of the notification does not

specifically refer to conflict between Brahmins and Marathas, learned

counsel urged that the notification has to be read in the historical

background and if it is so read, the only possible conclusion is that the

two groups referred to in the notification mean Brahmins on the one hand

and Marathas on the other. According to the learned counsel, it is a

settled rule of interpretation that while construing any notification of this

nature, the historical background can be taken into account.

1

9.Mr. Naphade also contended that in a criminal case the burden of

establishing that a case under Sections 153 and 153-A of the IPC is made

out, is on the State, whereas, while judging the action of the Government

under Section 95 of the Code, the parameters are qualitatively different

inasmuch as there is a presumption that the notification is valid and the

burden to show that the decision of the Government to forfeit the book is

without any foundation, is on the writ petitioners.

10.Learned counsel also argued that the subjective satisfaction of the

Government as contemplated in Section 95 of the Code cannot be

canvassed either in an application under Section 96 of the Code or in a

writ petition under Article 226 of the Constitution. According to the

learned counsel, neither the High Court nor this Court can sit in appeal

over the Government's decision to forfeit the book. Relying on the

decision of the Bombay High Court in the case of Gopal Vinayak Godse

Vs. The Union of India and Others1, learned counsel submitted that if a

book has a tendency to create a rift between the two different

communities, then Article 19(1)(a) of the Constitution cannot be pressed

into service, even on the ground that the book contains historical truth.

11.As regards the concession of the counsel for the State before the High

Court, as recorded in the impugned judgment, it is pleaded in the written

1 AIR 1971 Bombay 56

1 submissions that the concession so made was clearly under

misconception of law and facts. It is pleaded that the concession made by

an Additional Advocate General is not binding on the Government. In

support of the said stand, reference is made to the decisions of this Court

in M.T. Khan and Others Vs. Govt. of A.P. and Others2 and Periyar and

Pareekanni Rubbers Ltd. Vs. State of Kerala3. Learned counsel also

placed reliance on the decision of this Court in Baragur

Ramachandrappa and Others Vs. State of Karnataka and Others4 in

support of his proposition that Sections 95 and 96 of the Code, when read

together, are clearly preventive in nature and are designed to pre-empt

any disturbance to public order and, therefore, if a forfeiture is called for

in public interest, it must have pre-eminence over any individual interest.

12.Per contra, Mr. Prashant Bhushan, while emphasizing that the book

in question, which makes historical investigation to discover and interpret

Shivaji, the great hero of 17th Century in India and Maharashtra in

particular, is a scholarly, historical piece about a much revered and

admired historical figure of India, vehemently submitted that even if there

were any critical comments about Shivaji Maharaj, banning the book

would strike at the very root of the fundamental right to freedom of

expression in a democracy. It was asserted that there is nothing

2 (2004) 2 SCC 267 3 (1991) 4 SCC 195 4 (2007) 5 SCC 11

1 disparaging or malicious about Shivaji and his parents in the book as

alleged in the notification. Learned counsel maintained that there is no

scurrilous matter in the book which is prejudicial to the maintenance of

public tranquillity along with law and order and, in any case, it is the

primary responsibility of a Government to prevent mischief-maker from

taking the law into their own hands. In support of the proposition that it

is for the State to maintain public order and the books, films, etc. cannot

be banned merely based on an apprehension of clashes, learned counsel

placed reliance on the decision of this Court in S. Rangarajan Vs. P.

Jagjivan Ram and Others5.

13.Learned counsel also urged that on facts in hand, the conditions

requisite for invoking Section 95 of the Code are not fulfilled inasmuch

as apart from the fact that detailed grounds have not been provided to the

respondents, it is evident from the notification that all that has been stated

therein is that the book contains scurrilous and derogatory references to

Shri Chhatrapati Shivaji Maharaj and that has caused enmity between

various communities and has led to acts of violence and disharmony and

that any further circulation of the book is likely to result in breach of

peace and public tranquillity and in particular, between those who revere

Shri Chhatrapati Shivaji Maharaj and those who may not. It was also

pleaded that the notification is neither based on grounds that offence 5 (1989) 2 SCC 574

1 under Section 153-A of the IPC was made out nor it has been shown that

how the references are derogatory or scurrilous and above all, even the

communities, who were alienated from each other or whose religious

beliefs were hurt, have not been named or identified.

14.Learned counsel then contended that paragraphs in the book,

complained of, do not constitute an offence either under Section 153 or

under Section 153-A of the IPC as in the notification there is no

allegation that the book has caused or likely to cause enmity between

different classes of the society or has created a situation of hatred

between or among particular religions/castes/social groups as

contemplated in Section 153-A of the IPC. It is pointed out that the

notification does not even identify the communities, which, according to

the Government, were allegedly alienated from each other or whose

religious beliefs had been wounded. Reliance was placed on the decision

of this Court in Manzar Sayeed Khan Vs. State of Maharashtra and

Another6, relating to the same book, wherein, while holding that the book

did not make out an offence under Section 153-A of the IPC, the FIR

registered against the Author of the book (respondent No.4) was quashed. Reliance was also placed on the decisions of this Court in Bilal Ahmed

Kaloo Vs. State of A.P.7 and Harnam Das Vs. State of Uttar Pradesh8.

6 (2007) 5 SCC 1 7 (1997) 7 SCC 431 8 AIR 1961 SC 1662

1 Learned counsel thus asserted that there was no justification whatsoever

for ordering forfeiture of the book and the impugned notification is a

gross misuse of Section 95 of the Code.

15.Before evaluating the rival contentions, a brief reference to the

relevant provisions of the Code and the precedents on the point would be

necessary.

16.Section 95 of the Code reads as follows:

"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 124A or section 153A or 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 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 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.

(2) In this section and in section 96,--

(a) "newspaper" and "book" have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867);

1 (b) "document" includes any painting, drawing or photograph, or other visible representation.

(3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of section 96."

17.Section 96 of the Code, relevant for the purpose, is as under:

"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.

(5) .................................................................."

18. 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

1 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. Section 96

of the Code entitles any person having any interest in any newspaper,

book or other document, in respect of which a declaration of forfeiture is

made under Section 95 of the Code, to move the High Court for setting

aside the declaration on the ground that it does not contain any such

matter as is referred to in sub-section (1) of Section 95.

19.Undoubtedly, the power to forfeit a newspaper, book or document is a

drastic power inasmuch as it not only has a direct impact upon the due

exercise of a cherished right of freedom of speech and expression as

envisaged in Article 19(1)(a) of the Constitution, it also clothes a police

officer to seize the infringing copies of the book, document or newspaper

1 and to search places where they are reasonably suspected to be found,

again impinging upon the right of privacy. Therefore, the provision has

to be construed strictly and exercise of power under it has to be in the

manner and according to the procedure laid down therein.

20.The scope and width of a somewhat similar provision contained in

Section 99A of the Code of Criminal Procedure, 1898 (for short "the

1898 Code") was examined by a Constitution Bench of this Court in

Harnam Das Vs. State of Uttar Pradesh (supra). Speaking for the

majority, A.K. Sarkar, J. held that in that case though the order of

forfeiture passed by the Government had set out its opinion that the books

contained matters the publication of which was punishable under Sections

153-A and 295-A of the IPC but it did not state, as it should have, the

grounds of that opinion. Striking down the order of forfeiture, the learned

judge observed as under:

"(4) Two things appear clearly from the terms of this Section.

The first thing is that an order under it can be made only when the Government forms a certain opinion. That opinion is that the document concerning which the order is proposed to be made, contains "any matter the publication of which is punishable under Section 124-A or Section 153-A or Section 295-A of the Penal Code." Section 124-A deals with seditious matters, Section 153-A with matters promoting enmity between different classes of Indian citizens and Section 295-A with matters insulting the religion or religious beliefs of any class of such citizens. The other thing that appears from the Section is that the Government has to state the grounds of its opinion. The order made in this case, no doubt, stated that in the

1 Government's opinion the books contained matters the publication of which was punishable under Sections 153-A and 295-A of the Penal Code. It did not, however, state, as it should have, the grounds of that opinion. So it is not known which communities were alienated from each other or whose religious beliefs had been wounded according to the Government, nor why the Government thought that such alienation or offence to religion had been caused."

Thus, the Court observed that in the notification it was not known which

communities were alienated from each other or whose religious beliefs

had been wounded and why the Government thought that such alienation

or offence to religion had been caused. It was held that if the grounds of

opinion are not stated, the order of forfeiture must be set aside, because

then the Court cannot be satisfied that the grounds given by the

Government justify the order. Inter alia observing that it is the duty of

the High Court to set aside an order of forfeiture if it is not satisfied that

the grounds on which the Government formed its opinion could justify

that opinion, the Court also noted that it is not the duty of the High Court

to find for itself whether the book contained any such matter.

21.Significance of setting out the grounds of the opinion of the

Government was again emphasised in Narayan Dass Indurakhya Vs.

State of Madhya Pradesh9. It was observed that grounds must be

distinguished from the opinion, as grounds of the opinion must mean the

conclusion of facts on which the opinion is based. The Court said: 9

(1972) 3 SCC 676

1 "6. There is a considerable body of statutory provisions which enable the State to curtail the liberty of the subject in the interest of the security of the State or forfeit books and documents when in the opinion of the Government, they promote class hatred, religious intolerance, disaffection against the State, etc. In all such cases, instances of some whereof are given below the State Government has to give the grounds of its opinion. Clearly the grounds must be distinguished from the opinion. Grounds of the opinion must mean the conclusion of facts on which the opinion is based. There can be no conclusion of fact which has no reference to or is not ex facie based on any fact."

It was also observed that mere repetition of an opinion or reproduction of

the Section without giving any indication of the facts will not answer the

requirement of a valid notification.

22.Section 99A of the 1898 Code again came up for consideration

before a bench of three Judges of this Court in The State of Uttar

Pradesh Vs. Lalai Singh Yadav10. Emphasizing the importance of

furnishing of grounds by the Government for its opinion, speaking for the

bench, V.R. Krishna Iyer, J. observed as under:

"8. A drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction, especially when quasi-penal consequences also ensue. The imperial authors of the Criminal Procedure Code have drawn up Section 99A with concern for the subject and cautionary mandates to government. The power can be exercised only in the manner and according to the procedure laid down by the law. Explicitly the section compels the government to look at the matter which calls for action to consider it as to the clear and present danger it constitutes in the shape of promoting feelings 10 (1976) 4 SCC 213

2 of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments (there are other proclivities also stated in the section with which we are not concerned for the present purpose) and, quite importantly, to state the grounds of its opinion. We are concerned with the last ingredient. When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied.

You do not state a thing when you are expressively silent about it. To state `is to declare or to set forth, especially in a precise, formal or authoritative manner; to say (something), especially in an emphatic way ; to assert' (Random House Dictionary). The conclusion is inescapable that a formal authoritative setting forth of the grounds is statutorily mandatory....."

While reiterating that a formal authoritative setting forth of the grounds is

statutorily mandatory and the Court cannot make a roving enquiry

beyond the grounds set forth in the order and if the grounds are left out

altogether then there is nothing available to the Court to examine and the

notification must fail, the Court also observed that the grounds or reasons

linking the primary facts with the forfeiter's opinion need not be stated at

`learned length'. In some cases, a laconic statement may be enough; in

others a longer ratiocination may be proper. The order may be brief but it

cannot be blank as to the grounds which form the basis of the opinion on

which the Government relies. It was also observed that since an order of

forfeiture constitutes a drastic restriction on the rights of a citizen, the

relevant provisions of the Code have to be strictly construed.

2

23.At this juncture, it would be appropriate to refer to the decision of

this Court, to which one of us (D.K. Jain, J.) was a party, in Manzar

Sayeed Khan Vs. State of Maharashtra & Another (supra), which arose

on account of registration of the FIR against the Author, Publisher and

Printer, respondents No.4 to 6 in this appeal, on publication and

distribution of the book "Shivaji - Hindu King in Islamic India", the

subject matter of the present case. Quashing the FIR against the author,

this Court observed that the intention to cause disorder or incite people to

violence is the sine qua non of the offence under Section 153-A of the

IPC and the prosecution has to prove prima facie the existence of mens

rea on the part of the accused. It was, inter alia, observed that the

intention of the publication has to be judged primarily by the language of

the book, the circumstances in which it was written and published; the

matter complained of must be read as a whole and one cannot rely on

strongly worded and isolated passages for proving the charge nor indeed

can one take a sentence here and a sentence there and connect them by a

meticulous process of inferential reasoning. Reliance was placed on the

decision of this Court in Ramesh Vs. Union of India and others11,

wherein the observations of Vivian Bose, J. (as he then was) in Bhagwati

Charan Shukla Vs. Provincial Government12, to the effect that "the

effect of the words must be judged from the standards of reasonable, 11 (1988) 1 SCC 668 12 AIR 1947 Nag 1

2 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" were approved.

24.Recently in Baragur Ramachandrappa and Others Vs. State of

Karnataka and Others (supra), this Court again considered the scope of

Section 95 of the Code. Approving the interpretation of Sections 95 and

96 of the Code given by a special bench of the Patna High Court in Nand

Kishore Singh & etc. Vs. State of Bihar and Another13, wherein it was

observed that it would be fallacious to mathematically equate the

proceedings under Sections 95 and 96 of the Code with a trial under

Section 295-A of the IPC with the accused in the dock, the Court 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 mens rea were fully established and all that

Section 95(1) required was that the ingredients of the offence should

"appear" to the Government to be present. While observing that Section

95 of the Code exemplifies the principle that freedom of speech and

expression is not unfettered, this Court commended that freedom must be

available to all and no person has a right to impinge on the feelings of

others on the premise that his right to freedom of speech remains

13 AIR 1986 PATNA 98

2 unrestricted and unfettered. It cannot be ignored that India is a country

with vast disparities in language, culture and religion and unwarranted

and malicious criticism or interference in the faith of others cannot be

accepted.

25.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. 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

2 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;

2

(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-

2 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.

26.Having assessed the validity of notification dated 20th December

2006 on the touchstone of the afore-stated principles, we are of the

opinion that in the present case, the conditions statutorily mandated for

exercise of power under Section 95 of the Code are lacking and therefore,

the action of the Government cannot be sustained.

27.It is plain from a bare reading of the notification that the

Government's opinion, that the circulation of the said book, containing

scurrilous and derogatory references to Shri Chhatrapati Shivaji Maharaj,

has resulted in causing enmity between various communities and has led

to acts of violence and disharmony and that any further circulation of the

said book is likely to result in breach of peace and public tranquillity, is

based on the grounds set out in the preamble to the notification, viz., the

author has made several derogatory references, specified in the Schedule

appended to the notification, regarding Shri Chhatrapati Shivaji Maharaj,

in particular about his parentage and the Bhosale family; the said

derogatory references are prejudicial to the maintenance of harmony

2 between different groups and has disturbed the public tranquillity, the

publication and circulation of the book has not only already resulted in

causing enmity between the persons who revere Shri Chhatrapati Shivaji

Maharaj and other persons who may not so revere but is likely to

continuously cause such enmity and that for publication of the book an

FIR for offences under Sections 153 and 153-A read with Section 34 of

the IPC has been registered against the author.

28.Thus, being one of the essential conditions for exercise of power

under Section 95 of the Code, that the publication contains matter which

is an offence under various provisions of the IPC, the opinion of the State

Government is based on the factum of registration of an FIR against the

author and others for offences punishable under Sections 153 and 153-A

read with Section 34 of the IPC. As stated above, vide order dated 5th

April, 2007, in Manzar Sayeed Khan's case (supra), this Court while

quashing the same FIR which was registered against Prof. James W.

Laine and others and was referred to in the notification has held that the

offending articles in the book do not constitute an offence under Section

153-A of the IPC. It is explicit that the entire edifice of the impugned

notification being based on the registration of the said FIR, it gets

knocked off by the decision of this Court. Furthermore, it is stated that

"the Government of Maharashtra is of the opinion that the circulation of

2 the said book containing scurrilous and derogatory references against Shri

Chhatrapati Shivaji Maharaj has resulted in causing enmity between

various communities and has led to acts of violence and disharmony and

that any further circulation of the said book is likely to result in breach of

peace and public tranquillity and in particular between those who revere

Shri Chhatrapati Shivaji Maharaj and those who may not; and cause

disturbances to public tranquillity and maintenance of harmony between

such groups and as such the said book should be forfeited". We are

unable to persuade ourselves to agree with learned counsel for the

appellants that only the subjective satisfaction of the State Government

was called for and the matter covered by the notification is sufficient and

cannot be assailed. It is manifest that the notification does not identify

the communities between which the book had caused or is likely to cause

enmity. Therefore, it cannot be found out from the notification as to

which communities got outraged by the publication of the book or it had

caused hatred and animosity between particular communities or groups.

We feel that the statement in the notification to the effect that the book is

"likely to result in breach of peace and public tranquillity and in

particular between those who revere Shri Chhatrapati Shivaji Maharaj

and those who may not" is too vague a ground to satisfy the afore-

enumerated tests. Moreover, the High Court has also noted that the

learned Associate Advocate General was unable to produce or disclose

2 any material or information to find out as to which were the groups based

on religion, race, language or religion or caste or communities who do

not revere Shri Chhatrapati Shivaji Maharaj. If that be so, no fault can be

found with the finding of the High Court to the effect that there is nothing

on record on the basis whereof the Government could form the opinion

that the book was likely to promote disharmony or feeling of enmity

between various groups or likely to cause disturbance to public

tranquillity and maintenance of harmony between various groups.

29.In view of the foregoing, we are in agreement with the High Court

that the notification of forfeiture, dated 20th December 2006, does not

fulfil the mandatory requirements of sub-section (1) of Section 95 of the

Code and is, therefore, invalid. No ground is made out warranting our

interference with the impugned judgment. The appeal is dismissed

accordingly, leaving the parties to bear their own costs.

..................................J. (D.K. JAIN)

..................................J. (H.L. DATTU) NEW DELHI;

JULY 9, 2010

3