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Gopal Vinayak Godse vs The Union Of India Judgment 6 August 1969

Gopal Vinayak Godse vs The Union Of India Judgment 6 August 1969

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Published by satyabhashnam

Gopal Vinayak Godse vs The Union Of India Judgment 6 August 1969

Gopal Vinayak Godse vs The Union Of India Judgment 6 August 1969

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Published by: satyabhashnam on Jan 30, 2013
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Bombay High CourtBombay High CourtGopal Vinayak Godse vs The Union Of India And Ors. on 6 August, 1969Equivalent citations: AIR 1971 Bom 56, (1970) 72 BOMLR 871, 1971 CriLJ 324Author: ChandrachudBench: Mody, V Desai, ChandrachudJUDGMENTChandrachud, J.1. By these petitions, the author and publisher of a book called "Gandhi-hatya Ani Mee"(Gandhi-assassination And I) challenge an order of forfeiture passed by the Delhi Administration underSection 99A of the Code of Criminal Procedure. Criminal Application No. 332 of 1968 is filed by the authorGopal Vinayak Godse, while Criminal Application 333 of 1968 is filed by the publisher, Gana-pati VasudeoBehere who runs a publishing house called 'Asmita Prakashan'. The book is written in Marathi and wasprinted and published in Poona.2. The 1st Respondent to the petitions is the Union of India which is joined, presumably because theconstitutionality of Section 99A of the Code of Criminal Procedure and Section 153A of the Indian PenalCode is challenged. No relief as such is claimed against the 1st Respondent. The 2nd Respondent is the DelhiAdministration which passed the impugned order of forfeiture on the 26th September, 1968 in supersession of an earlier order dated the 6th December, 1967. The 3rd Respondent is the State of Maharashtra whichrepublished in its Gazettes of the 1st February, 1968 and the 17th October, 1968, the notifications of the 2ndRespondent dated the 6th December 1967 and the 26th September, 1968 respectively. The 4th Respondent isthe Judicial Magistrate, First Class, Poona, who issued a search warrant on the 25th January, 1968 authorisinga Sub-Inspector of Police in Poona to enter the premises of 'Asmita Prakashan' and seize copies of the book,on the ground that the book contained matter which promoted feelings of enmity and hatred between Hindusand Muslims. The 5th Respondent is the Commissioner of Police, Poona, whose subordinate, a Sub-Inspector-of Police, seized one copy of the book from the residence of the author and two copies from the office of the'Asmita Prakashan'. The relief claimed against Respondents 3 to 5 is that they should be restrained fromenforcing the order of forfeiture passed by the 2nd Respondent. The relief claimed against the 3rd Respondentis that the orders republished in its Gazettes should be declared to be illegal.3. The petitions raise common questions of fact and law and can be conveniently disposed of by a common judgment. For a proper appreciation of the questions raised before us it is necessary to state the followingfacts. Some of them are well-known facts of history.4. We begin with the 30th January, 1948, the day on which Mahatma Gandhi was assassinated in Delhi. Theassassin, Nathuram Godse, was the brother of the author of the present work which is under an order of forfeiture. We will, for convenience, refer to the author as 'the petitioner'. The petitioner was arrested on the5th February, 1948 and was tried along with seven others on charges like murder, conspiracy to commitmurder and so forth. Nathuram, who pleaded guilty to the charge of murder was sentenced to death along withanother accused, Narayan Apte. DR. V.D. Savarkar, one of the co-accused, was acquitted by the trial Court,while the petitioner and the other four accused were sentenced to imprisonment for life. In appeal, the PunjabHigh Court acquitted two more -- Dr. Parchure and Shankar Kistayya. The conviction and sentence of the fiveothers was confirmed. Nathuram had appealed against his conviction on the charge of conspiracy only. Heneither challenged his conviction for murder nor the sentence of death passed on him. The statement made byhim in Trial Court under Section 342 of the Code of Criminal Procedure was proscribed by the Government of India.5. Nathuram and Apte were executed in the Ambala Jail on the 15th November, 1949. The petitioner andanother accused called Karkare were transferred from the Ambala Jail to Nasik Road Central Prison in
Gopal Vinayak Godse vs The Union Of India And Ors. on 6 August, 1969Indian Kanoon - http://indiankanoon.org/doc/726232/1
 
Maharashtra on the 19th May, 1950. The petitioner was thereafter transferred to the Aurangabad CentralPrison.6. The petitioner filed several petitions in the Supreme Court praying that he be directed to be released. Hewas sentenced by the Trial Court on 10-2-1949 and his contention was that taking into consideration theremissions earned by him he was entitled to be released. He was eventually released from jail on 13thOctober, 1964, during the pendency of one of such petitions, in which he was directed to be produced beforethe Supreme Court on the 19th October, 1964.7. The petitioner was arrested again on the 25th November, 1964 under the Defence of India Act. He wasreleased from detention on the 30th November, 1965.8. These facts do not directly concern the legality of the order of forfeiture passed by the 2nd Respondent. Butthese facts and these names occur frequently in the book and indeed some of these have been accorded aspecial separate treatment. The partition of the country, the genesis of Gandhiji's murder the possibility thatthe murder could have been averted, the Court scene, the involvement of Dr. Savarkar in the accusation of murder, the treatment received by the petitioner in the Nasik and Aurangabad Jails and the vexed problem of his rehabilitation in society -- these and other topics which are dealt with in the book revolve around the factsand figures mentioned above.9. The book first appeared in a serial form. Fifteen out of its sixteen chapters were serialized in a monthlyMarathi magazine called 'Painjan' in its issues of June 1966 to October 1967. What is now the seventh chapterof the book -- "Throw my ashes into the Indus" -- appeared in the issue dated the 8th October, 1967 of aMarathi weekly called 'Sobat'. Both the journals are published by 'Asmita Prakashan', Poona, of which Behereis the proprietor.10. On the 6th December, 1967, the Lt. Governor of Delhi issued a notification under Section 99-A of theCode of Criminal Procedure, in the following terms:--DELHI ADMINISTRATION : DELHINOTIFICATIONDated the 6th December, 1967.No. F-292/67-C. Whereas the Lt. Governor, Delhi, is satisfied that the book entitled "Gandhi Hatya ani Mee"in Marathi by Gopal Godse, published by G. V. Behere, Asmita Prakashan 461/1 Sadashiv Peth, Tilak Road,Poona 2 and printed by M. H. Patwardhan at Sangam Press Private Ltd., 383, Narayan Peth, Poona-2, containsmatter which promotes feelings of enmity and hatred between Hindus and Muslims in India and thepublication of which is punishable under Section 153-A of the I.P.C. 1860 (Act XLV of 1860).Now therefore, on the above stated grounds and in exercise of the powers conferred by Section 99-A of theCode of Criminal Procedure, 1898 (Act V of 1898), the Lt. Governor Delhi, hereby declares to be forfeited toGovernment every copy of the said book and all other documents containing copies, reprints and translation of or extracts from the said book.By order,(Sd.) V.K. Seth,Under Secretary, (Home),
Gopal Vinayak Godse vs The Union Of India And Ors. on 6 August, 1969Indian Kanoon - http://indiankanoon.org/doc/726232/2
 
Delhi Administration.11. On the 25th January, 1968, the 4th Respondent, the Judicial Magistrate, First Class, Poona, issued a searchwarrant authorizing a Police Sub-Inspector to seize copies of the book from the premises of the publishinghouse. On the 26th, one copy of the book was seized from the residence of the petitioner, while on the 27th,two copies were seized from the publishers.12. On the 1st February, 1968, the Government of Maharashtra re-published in its gazette, the notification of forfeiture, issued by the Delhi Administration on the 6th December 1967. The notification of the MaharashtraGovernment begins by saying: "The following notification of the Delhi Administration is republished". It thensets out the notification of the Delhi Administration and concludes with the endorsement "By order of and inthe name of the Governor of Maharashtra", under the signature of a Deputy Secretary to the Government.13. On the 20th March, 1968 these petitions were filed under Section 99B of the Code of Criminal Procedureand Article 226 of the Constitution to challenge the notification of the Delhi Administration and that of theMaharashtra Government republishing that notification. Every application under Section 99B is required bySection 99C to be heard and determined by a Special Bench of the High Court composed of three Judges. Thatis how the matter has come before us.14. The petitions came up for hearing on the 16th September, 1968 when the learned Advocate General,appearing for Respondents 1 and 2 (The Union of India and the Delhi Administration), raised threepreliminary objections to the maintainability of the petitions: one, that this High Court has no jurisdiction toentertain the application under Section 99B, challenging the legality of the notification issued by the DelhiAdministration; two, that the petitions are barred by time, not having been filed within two months of the dateof the order of forfeiture, as required by Section 99B; and three, that the petitions, in so far as they purport tobe under Article 226 could not lie as the authority exercising power under Section 99A does not function as aquasi-judicial tribunal. Later, the two latter objections were not pressed by the Advocate General and wetherefore heard the arguments on the first objection only. We reserved our ruling on the point of jurisdiction,particularly as the learned Counsel appearing for the petitioner contended that the questions arising underArticle 226 of the Constitution and the questions governing the petitioner's fundamental rights would alsohave a material bearing on the question of jurisdiction and therefore, it was desirable to consider the petitionsin their entirety. We accordingly proceeded to hear the petitions on the other points.15. We heard the parties for seven days during which many a point was urged before us. One of the points thatthe order of forfeiture passed by the Delhi Administration on the 6th December 1967 was bad because thegrounds of opinion, that the book contained matters which promoted feelings of enmity and hatred betweenHindus and Muslims, were not stated in the order as required by Section 99A. It was contended that the ordermust refer to the objectionable passages specifically or else it cannot be sustained. The learned AdvocateGeneral controverted this position, contending that grounds are conclusions of facts drawn from facts but aredifferent from facts and evidence. Therefore, he urged, it was not necessary to mention in the order thespecific passages which fell within the mischief of the section.16. This particular point lost its relevance because, during the course of hearing before us, the DelhiAdministration came out with a fresh order of forfeiture, dated the 26th September 1968, rectifying the defectfrom which the earlier order was said to suffer. That order reads thus :--DELHI ADMINISTRATION: DELHINOTIFICATIONDated the 26th
Gopal Vinayak Godse vs The Union Of India And Ors. on 6 August, 1969Indian Kanoon - http://indiankanoon.org/doc/726232/3

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