You are on page 1of 16

(-1

-)

hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1721 OF 2004 1. Sangharaj Damodar Rupawate, Indian Inhabitant, residing at Kapilvastu, 4, Kaki Court, Cumballa Hill Road, Kemps Corner, Mubai 400 036. Anand Patwardhan, Indian Inhabitant, residing at 22, Lokmanya Tilak Colony, Marg No. 2, Dadar, Mumbai 400014. Kunda, Pramila, Indian Inhabitant, residing at Nilkantha, 22 B/602, Bimbisar Nagar, MHADA Complex, Near Mahendra Dairy, Goregaon (East), Bombay 65. ... Petitioners Versus 1. Nitin Gadre, Joint Secretary to the Government of Maharashtra, Mantralaya, Mumbai 400 032. The State of Maharashtra, Government Pleader, High Court, Mumbai 400032. Manisha Mhaiskar, Joint Secretary to the Government of Maharashtra, Mantralaya, Mumbai 400032. with

2.

3.

2.

3.

...

Respondents for

Mr. P.A. Sebastian Petitioners.

Ms.M.Adenwala

Mr. A.A. Kumbhakoni, Associate Advocate General with Mr. K.R. Belosey, Government Pleader and Mr. Vishal Kanade for R. No. 2. CORAM: F.I. REBELLO, SMT.V.K. TAHILRAMANI & A.S.OKA,JJJ. DATED: 26TH APRIL 2007. 2007 ORAL JUDGMENT (Per F.I. Rebello,J.):

(-2-)

. of

This Petition is an application under Section the Code of Criminal Procedure, 1973. as a Petition of India. under Article

96

It is also 226 of the

filed

Constitution

We however, propose to treat

it and dispose it off as an application under Section 96 of the of Code of Criminal Procedure, Maharashtra on 15.1.2004 1973. issued The a

State

notification under Section 95 of the Code of Criminal Procedure, captioned written published Press, posted date, 17th dated Another produced by in forfeiting "Shivaji-Hindu one Mr. the every King copy in of the book India", first

Islamic was

James W. year 2003

Laine and at Oxford

University

New York and Delhi.

The matter was heard and On that dated

for judgment on December, 21, 2006.

the State Government filed an affidavit January, 2006 setting out had been that

notification forthwith. was

15.01.2004

withdrawn

notification which

dated 28th December, 2006

has the same effect as the

original

impugned notification.

.

Considering the judgment of the Special Bench

of

this court, in the case of Gopal Vinayak Godse Versus The Union of India and Ors. the AIR 1971 Bombay 56 we to

permitted challenge

Petitioners to amend the Petition

the Notification dated 28th December, 2006

and carry out all consequential amendments.

(-3-)

.

On

March 07, 2007, when the matter came

up

for over the

hearing, an

the Associate Advocate General handed One of

additional affidavit dated 7.3.2007.

objections the

raised therein was to the locus standi of to maintain the 96 of the present Code of petition Criminal

Petitioners

considering

Section

Procedure, 1973.

2. wish

Before

going into the merits of the matter,

we

to deal with the contention as urged on

behalf

of the Respondents in their oral arguments as also in the written submissions, that the Petitioners have no locus standi it to is file and maintain that the the present

petition. cannot in the

submitted

Petitioners interest" " a

be said to be a "person having any book having it in issue. any is from

"A person aggrieved", person be

person

interest" and "a submitted, each must

merely clearly of

affected"

distinguished Section to be

other for the

purpose

96 of Cr.P.C.

This distinction is

required book

drawn in the light of the nature of the

and the rights, if any, claimed in that regard by the Petitioner. A reader of a book cannot claim that he

is "a person having any interest" in terms of Section 96. Reliance for that is placed in Ramlal Puri Vs.

State of Madhya Pradesh, 1971 AIR 1971 M.P.152.

.

On the other hand, on behalf of the

Petitioners,

(-4-)

their

learned

counsel

draws our attention

to

the

pleadings. practicing been a

Petitioner No.

1 is a well known Lawyer

in this court since the year 1984 and has movement

public activist in the Ambedkarite

and other movements intended to mobilize the deprived sections is of the society. is are well The Second Petitioner, known film Maker, it

averred

whose the

documentaries artistic message

known all over the world for and the democratic and

finesse

secular The third

which they so effectively convey.

petitioner as per the pleadings, is a social activist in different fields where the voiceless are given a

voice. it is

It is the contention of the Petitioners, that indispensable for the advancement of human

civilization that historians should have untrammelled freedom to inquire, discover and disclose facts and

events of the past.

It is further submitted that the

freedom of information and knowledge is guaranteed by the Indian Constitution as well as the international to which India is a signatory. Those who

documents rule and India

this country do not have the monopoly of wisdom they can not decide what the sovereign people of should know or should not know. It is further

submitted India read have the

that the Petitioners and other citizens of a constitutionally guaranteed book and to now the contents of right the to said

book irrespective of whether they agree with the book or not. The State it is submitted, should not be

(-5-)

allowed trouble Indian their

to take advantage of the activities of makers and to negate the basic right of Citizens to acquire knowledge and to views which is an indispensable part democracy. The objection now

some the

express of the

parliamentary

raised

was not raised when the petition was first heard and as such the Respondents should be estopped from now

raising this technical plea.

3.

The

question

therefore,

is

whether

the

Petitioners considering the language of Section 96 of the Code of this Criminal Procedure, are entitled The to

maintain provisions

application/Petition.

relevant Criminal

of Section 96(1) of the Code of

Procedure, 1973 read as under :

"96.

Application of

to

High Court to :(1)

set Any

aside person

declaration having any

forfeiture

interest in any newspaper,

book

or

other document, in respect of which a declaration of may, forfeiture within in has been made under two the months from section the date of 95, of such

publication

Official

Gazette

declaration, apply to the High Court to set aside such the declaration on the ground that the issue of newspaper, or the book or other document, in of which the declaration was made, did

respect not

contain any such matter as is referred to in

(-6-)

sub section (1) of section 95."

.

Does

the

expression means,

"any

person or

having

any

interest" interest who

merely and a

proprietary

pecuniary Petitioners

excludes persons like the fundamental right of

claim

speech

and

expression

to purchase and read the book, the copies

of which have been forfeited under Section 95 of the Code of Criminal Procedure.

4.

We

may

firstly, consider the judgment

of

the

Supreme Court in K. of 767. Police

Anbazhagan Versus Superintendent Cases the of

and Others, (2004) 3 Supreme Court

The Hon’ble Supreme Court was considering "Party of interested" under Section 406 Procedure. In that

expression the Code

Criminal

case,

transfer state to

was sought of criminal proceedings from one another state by a person who was not The Hon’ble Supreme Court was a Petition is maintainable It was the

complainant. to hold that of

pleased at the

instance that not

the "party interested".

argued and the has The was

the expression used was "party interested" "person interested" and as such apart from

Attorney locus

General, it was a party interested who standi to file their application.

Petitioner, not "party

not being party to the proceedings, interested" and has no locus

standi.

Rejecting the argument, the Supreme Court observed as

(-7-)

under:

".................. "party Cr.P.C. wide interested" The

It will be noticed that the has not been defined under a

words "party interested" are of

import and therefore, they have to be given If it was the intendment of the give restricted meaning then it

a wider meaning. legislature to

would have used words to the effect "party to the proceedings". In this behalf the wordings of

Article 139-A of the Constitution of India may be looked be at. Under Article 139-A the transfer can

if "the Supreme Court is satisfied on its own or on an application made by the Attorney of India or by a party to any such case" supplied). Also if the provisions of are

motion General

(emphasis Chapter looked intended right

XXIX of the Criminal Procedure Code at, it is seen that when the

legislature a The the

a "party to the proceedings" to have

of appeal it specifically so stated. therefore, keeping in a view

legislature, larger justice import settled public

interest involved in

criminal wider a well be and a

system, purposely used words of a in Section 406. Also, it is

principle

of law that statutes must

interpreted not to

to advance the cause of statute it. The Petitioner being

defeat

political

opponent, is vitally interested in the

(-8-)

administration "party

of justice in the State and is within the meaning of

a sub

interested"

section (2) of Section 406 Cr.P.C."

. any

In our case, the expression used is "person having interest in any newspaper, book or other

document".

.

We shall next,refer to the judgment of the Supreme in D.C. Wadhwa Vs. State of Bihar, 1987 (1)

Court

Supreme Court Cases 379.

"The

rule

of

law constitutes the core

of

our

Constitution and it is the essence of the rule of law that the exercise of the power by the State

whether it be the legislature or the executive or any other authority should be within the

constitutional is and

limitations and if any

practice,

adopted by the executive which is in flagrant systematic violation of its 1 constitutional of the to

limitations, public would

petitioner have

as a member

sufficient

interest

challenge such practice by filing a writ petition and Court it would be the constitutional duty of to entertain upon the writ petition this and

adjudicate We must

the validity of such reject the

practice. preliminary respondents

therefore, raised

contention

on behalf of the

(-9-)

challenging

the

locus

of

the

petitioners

to

maintain these writ petitions."

.

In

Ramlal a by

Puri Versus State of case, where a

Madhya

Pradesh was of was an is a the was

(supra),is forfeited the then

religious

book

the Government under Section 99(A) Procedure Code. expression The Court having

Criminal the The book The

considering interest". religious Ramayana.

"person

court observed that the book on one aspect of an incident on Petitioner there the publisher

held to have enough interest.

Another petitioner who

had sponsored the publisher of the Book was also held to be a person in interested and in so far as the that of

Petitioner any the in

the third petition, it was held

person owing allegiance to a particular sect

said cult would certainly be a person interested seeing that his religious book ought not to be

forfeited on untenable grounds. the

The Special Bench of

Madhya Pradesh High Court was pleased to hold as

under :

"We

may

observe to work

that

this

test

may

not

be say and

applicable where a

many

other kinds of is

books, written

of literary art

published, every reader can not claim that he has a personal interest. to be But the interest substantial, in which our is

opinion,

ought

(-10-)

present

in

case of followers of the

particular

sect of a particular cult."

5.

In our opinion it will not be possible to

place

such restricted meaning to the expression ’any person having an interest’. The right of a citizen to be

informed is a part of our cherished fundamental right of freedom of speech and expression. 95 amounts to must a reasonable Even if Section yet the

restriction,

Government

satisfy that the act of

forfeiture

was according to law. interest part of in his

A citizen therefore, having an a larger and

the right to be informed, as right of freedom of

speech any in

expression, Even

will

be a person having after the judgment

interest. Anbazhgan "persons Our should of

otherwise the an

(supra) having

right of these petitioners as interest" freedoms cannot be

denied.

fundamental not be

contained in Part III,

kept in wraps by using the outdated tool standi". locus

"locus

The Supreme Court has unwrapped the standi, beginning Kamgar Union, 1 not

expression Fertilizers S.C.C. defined wisdom

Corporation of Union of India, (1981) At any rate, the Code having

568.

the term, the Legislature had left it to the and understanding of the times. Law is never

captive, it grows with the times. no difficulty of

We therefore, have on

in rejecting the contention urged

behalf

the Respondents by the learned

Associate

(-11-)

Advocate General.

6.

In

so

far

as

the

challenge

on

merits

is

concerned, on account of subsequent events, it is not necessary requirement a book, to deal with the various challenges. of passing an order of forfeiture The of

presupposes that the book contains any matter

the publication of which is punishable under Sections 124-A the every or 153(A) or 153(B) or 292 or 293 or 295A of

I.P.C., for the State Government to declare that copy of In such book be forfeited to only the be

Government. exercised the

other words the power can

and the notification can only be issued if

Government forms an opinion that the publication matter which is in an offence under any as aforestated. of

contains

the sections of the I.P.C.

.

In

the instant case, the notification issued

on

dated 15.1.2004 has been withdrawn and the subsequent notification of 28.12.2006, proceeds on the footing

that the publication of the Book was punishable under Section 153A of the Indian Penal Code. After the

Petition was heard and posted for judgment the larned counsel Associate for the Petitioner as also the learned

Advocate General informed the court of the

judgment passed by the Supreme Court in Manzar Sayeed Khan Vs. State of Maharashtra and Others in Appeal The

(Criminal) No.

491 of 2007 decided on 5.4.2007.

(-12-)

Respondent with the

State criminal

has been directed not proceedings against

to

proceed Professor

Laine, the Author of the Book including under Section 153A of the I.P.C. to Whilst so holding, the court was is

pleased

observe that the gist of the offence

the intention to promote feelings of enmity or hatred between different classes of people. The intention

to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153A of IPC and the prosecution has to prove prima facie the of mens rea on the part of the accused. under Code.

existence The F.I.R.

filed against Professor Laine was 153A and 34 of the Indian Penal

Section

153,

The Supreme Court held that the writings in the Book, "Shivaji, constitute I.P.C. Hindu an Once King offence that be in Islamic India" 153A the does of not the

under Section the case,

impugned

notification cannot stand and has to be struck down.

7. 153A words of

Apart of

from that, from the language the Indian Penal Code, requires

of

Section that the

must promote or attempt to promote on race, or place of birth,

grounds

religion,

residence, other ground

language, whatsoever, or

caste

community or any

disharmony or feelings of enmity, hatred between different religious, racial,

ill-will

language or regional groups or castes or communities. The first notification issued by the State Government

(-13-)

stated material

that in of

the the

publication Book, has

with severely

reference affected

to the of

sentiments Maharashtra,

the people, not only in the State but in the entire country as

Shree

Chhatrapati Shivaji Maharaj is held in high esteem as a in Rashtriya Purush and is revered by all and the country irrespective of his own sundry

religion,

race, caste etc. opinion

This would indicate that it was the

of the State itself that Chhatrapati Shivaji

Maharaj was revered by all persons in the country and there This was no group not holding him in high was to withdrawn, be issued on and 28th the esteem. second

notification came

notification 2006.

December,

In this notification it is stated as under :

"AND

WHEREAS.

for the reasons

aforesaid,

the

Government the

of Maharashtra is of the opinion that of the said Book containing against resulted

circulation and

scurrilous Shri.

derogatory

references

Chhatrapati Shivaji Maharaj has

in causing enmity between various communities and has that likely led to acts of violence and disharmony and

any further circulation of the said Book is to result in breach of peace and public

tranquillity revere those public Shri. who

and in particular between those who Chhatrapati Shivaji not and cause Maharaj and to

may

disturbances

tranquillity

and maintenance of

harmony

(-14-)

between

such

groups and as such the

said

Book

should be forfeited."

.

We

called

upon the learned

Associate

Advocate possession of the

General which book and

to show us any material in their would

indicate, that the publication

is which

causing enmity between various were those communities.

communities The learned or

Associate disclose

Advocate General was unable to produce 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. is based upon

The only answer was, that the order the grounds set out in the

notification. under apart

In our opinion, to make a legal order procedure, therein

Section 95 of the Code of Criminal

from the fact that offence as set out

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 All the enmity between various groups as set out therein. that is pointed out to us is, that subsequent to publication of the book, there was an agitation

against by

Bhandarkar Oriental Research Institute, Pune of an Association called certain other people as "Sambhaji Shree

members and

Brigade"

revering

Chhatrapati

Shivaji Maharaj.

We pointedly asked the

(-15-)

learned employees

Associate of that the

Advocate

General

whether

the Pune

Bhandarkar or class.

Institute It was

constituted conceded group of

group

fairly a not is was

before

us that it was not so.

Whether

employees would constitute a group is to on be answered. In other words, there

required nothing likely between

record to show that the publication promote disharmony or feeling of to

to

enmity cause

various

groups,

as

likely

disturbance to public tranquillity and maintenance of harmony Research reputation Maharashtra. reasons the between various groups. Institute as Pune, enjoys Bhandarkar Oriental an international of

a research institute in the State It said was unfortunate that for institute was

whatever and

vandalized

precious documents destroyed History is the loser.

9. the

We

are, therefore, clearly of the opinion

that

impugned notification has to be quashed, both on

the ground that the publication does not disclose any offence Procedure that under Section 153A of the Code of Criminal show of

and also as there was no material to

the publication has resulted in disturbance

public tranquillity or maintenance of harmony between various groups were the as set out therein. In our Various opinion, Hon’ble proceed

authorities considering Supreme

cited before us.

subsequent events, and the directing the State not to

Court

(-16-)

against the author of the Book Shri. We need not discuss those

James W. judgments.

Lane. The

application/Petition allowed.

filed by the Petitioner must be

10. In holding 153-A

fact after the judgment of the Supreme that no offence was disclosed under of the I.P.C, the very basis on

Court Section the

which

Notification was issued no longer survived. circumstances law, the as

In these of have

a Government bound by the rule Government itself ought to

State

withdrawn the Notification. proper constitutional course.

That would have been the

11.

In

the

light of our discussion dated 28.12.2006

the

impugned and set

notification aside. The

is quashed to

respondents are directed

forthwith

release all the books which were forfeited and seized by the respondents.

(A.S.OKA,J.)(MRS.V.K.TAHILRAMANI,J.)(F.I.REBELLO, J.)