Abdul Ali vs State of Kerala

T.B. Radhakrishnan, J.—This application under sub-section (1) of S. 96 of the Code of Criminal Procedure, 1973, "Code", for short, is placed before the Special Bench of three Judges in conformity with sub-section (2) of that Section which prescribes that such an application shall be heard by a Bench so constituted. Apart from the impugned Annexure-A, G.O. (Ms.) No. 170/2010/Home dated 28.07.2010, we have no other materials on record along with the papers. We record that the book in relation to which the impugned order of the Government is shown to have been issued under S. 95 of the Code, is placed before us in sealed covers. Having looked into the substance of the contentions and the quality of the impugned order, we heard the learned Senior Advocate for the petitioners and the learned advocate acting on the directions of the learned Public Prosecutor, hereinafter called as ''public prosecutor''.

The learned Senior counsel for the petitioners argued that the impugned order, in no manner, satisfies the procedures and prescriptions in S. 95 of the Code and it does not contain the expression of any Government decision. He says that there is nothing on the face of the impugned order to show that "the Government was either satisfied" or "it had appeared to the Government", that the impugned action has to be taken. He, therefore, argued that the issuance of the impugned notification is without jurisdiction in terms of sub-section (1) of S. 95 of the Code. He further criticised the absence of any opinion having been expressed in the impugned order regarding the Government''s decision in the matter and pointed out that no grounds have been stated in support of any such opinion. He also argued that whatever is stated in the second paragraph of the impugned notification, is merely an attempt to superficially make reference to and state S. 153A of Indian Penal Code, 1890, for short, "IPC", and even that has not been done in satisfaction of any of the limbs of that Section. He made reference to the decisions of the Supreme Court in State of Maharashtra and Others Vs. Sangharaj Damodar Rupawate and Others, and Sri Baragur Ramachandrappa and Others Vs. State of Karnataka and Others, and the decision of the Full Bench of the Bombay High Court in Sangharaj Damodar Rupawate, Anand Patwardhan and Kunda, Pramila Vs. Nitin Gadre, Joint Secretary to the Government of Maharashtra, The State of Maharashtra, Government Pleader, High Court and Manisha Mhaiskar, Joint Secretary to the Government of Maharashtra .

Per contra, the learned public prosecutor very persuasively attempted to make us look into the Government files and the materials, on which, according to him, the opinion has been arrived at and grounds are stated to be available. He says that the expression as is made in the impugned order is sufficient, since, the reasons are found and contained in the files. In an attempt to say that there need not be any elaborate order, he pointed out the decision in The State of Uttar Pradesh Vs. Lalai Singh Yadav, , where the Hon''ble Supreme Court clarified that it is not necessary to elaborate on the opinion or grounds in an order of forfeiture under S. 95 of the Code.

At the outset, we may notice that this criminal miscellaneous case is filed invoking S. 96 as also S. 482 of the Code. Sub-section (3) of S. 95 provides that no order passed or action taken under S. 95 shall be called in question in any court otherwise than in accordance with the provisions of S. 96. This, obviously, means that no jurisdiction otherwise than under S. 96 is available through S. 482. For support, see the decision in Aundal Ammal Vs. Sadasivan Pillai, . We, therefore, raised a query in that regard and the learned Senior counsel for the petitioners has fairly stated that in the light of sub-section (3) of S. 95, the case need be treated only under S. 96 and not under S. 482 of the Code. We do not see any other jurisdiction being available. We, therefore, hold that an order passed or action taken under S. 95 of the Code cannot be questioned before any court otherwise than by an application under S. 96, subject, of course, to the distinctions made in Aundal Ammal (supra) as to the constitutional powers of superior courts.

Having regard to the nature of the arguments, we deem it appropriate to quote the entire notification, which is under challenge. Though the explanatory note does not form part of the notification, we quote that also, for the purpose of continuity.

"GOVERNMENT OF KERALA Home (SS A) Department NOTIFICATION

G.O. (Ms.) No. 170/2010/Home.

Dated, Thiruvananthapuram, 28th July, 2010.

S.R.O. No. 758/2010-WHEREAS, it has been brought to the notice of the Government of Kerala, that the book "Chinwad Palam", written by Shri. Shamu Coimbatore contains highly objectionable and provocative writings which promotes religious disharmony or feelings of enmity, hatred or ill will between different religious groups;

And Whereas, the publication of such a document is likely to prejudice the maintenance of religious harmony which is an offence punishable under section 153 A of the Indian Penal Code, 1860 (Central Act 45 of 1860);

Now, Therefore, in exercise of the powers conferred by sub-section (1) of Section 95 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Government of Kerala hereby declare that every copy of the book by name "Chinwad Palam" written by Shri Shamu Coimbatore and documents containing the said matter, reprint, translation or any extract therefrom shall be forfeited to Government of Kerala.

By order of the Governor, K. Jayakumar, Additional Chief Secretary to Government.

Explanatory Note

(This does not form part of the notification, but is intended to indicate its general purport.)

It is considered necessary that the copies of the book "Chinwad Palam", written by Shri Shamu Coimbatore should be forfeited to Government as the matter contained in it is likely to prejudice the maintenance of religious harmony in the community, which is an offence punishable under Section 153A of the Indian Penal Code, 1860.

This notification is intended to achieve the above object."

(emphasis supplied)

Among the precedents cited by the learned counsel for the parties, we deem it appropriate to first refer to the decision in Sangharaj D. Rupawate (supra), in which, the Hon''ble Supreme Court held as follows:

"26. xxx xxx xxx xxx

xxx xxx xxx xxx

The power to issue a 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 I.P.C., 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 the 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 S. 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 S. 95.

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 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."

(emphasis supplied)

In the aforenoted precedent, the Apex Court stated that no inflexible guidelines could be laid down to test the validity of a notification issued under S. 95 of the Code. However, the legal aspects which have to be kept in mind while examining the validity of a notification under S. 95 have been enumerated in paragraph No. 37 of that judgment of them, principles of law stated at serial Nos. 37(iv) to 37(ix) would become relevant only in cases where the first three principles at serial Nos. 37(i) to (iii) are first applied to examine as to whether the notification withstands the tests of those three principles, which are as follows:

"xxx xxx xxx

(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 the Government''s opinion must be stated in the notification issued under S. 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 the 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 the Government may choose. A mere repetition of an 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 detailed 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;"

Reverting to paragraph No. 43 of the judgment in Sangharaj D. Rupawate (supra), the concluding findings indicate that a mere statement that the book is likely to result in breach of peace and public tranquillity and in particular between those who revere a particular person and those who may not, is too vague a ground to satisfy the enumerated tests. For support, see paragraph No. 43 of that precedent, which is as follows:

"43. 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 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."

(emphasis supplied)

With the aforesaid in mind, on an examination of the impugned notification, all that we can understand from its opening paragraph is that it has been brought to the notice of the Government that the book contains highly objectionable and provocative writings which promote religious disharmony or feelings of enmity, hatred or ill will between different religious groups. The second paragraph proceeds to say that the publication of such a document is likely to prejudice the maintenance of religious harmony which is an offence punishable under S. 153A of the IPC. Firstly, there is nothing in the notification which amounts to an expression that it appears to the State Government that the publication contains highly objectionable and provocative writings which promote religious disharmony or feelings of enmity, hatred or ill will between different religious groups. There is no formulation of opinion by the State Government reflected in the notification. Be that as it may, no opinion by the State Government is stated, though that is mandatory. Total absence of such expression of opinion, therefore, vitiates the impugned declaration of forfeiture. Grounds of the opinion have to be stated in the notification. There is no such ground stated in the impugned notification. The grounds of opinion must mean conclusion of and on facts, on which the opinion is based. A mere repetition of an opinion or reproduction of the relevant statutory provision will not answer the requirement of a valid notification, though it is not necessary that the notification must bear a verbatim record. The validity of the order would depend upon 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 justify the order. Therefore, in terms of the law laid down in Sangharaj D. Rupawate (supra), the impugned order has necessarily to fail.

Now, we proceed to deal with the request of the learned public prosecutor to look into the Government files and also the reference made by him to the decision of Supreme Court in Lalai Singh (supra). Referring to paragraph No. 9 of that decision as reported in AIR, the learned public prosecutor submitted that the reasons and grounds based on the primary facts would differ from case to case and that a statement, even if it is laconic, may be sufficient. However, we see that the last sentence even in that paragraph is that "An order may be brief but not a blank." That precedent is also authority for the position as to the well settled principle that where there is a statutory duty to speak, silence is lethal sin for a good reason disclosed by the scheme of the fasciculus of sections. Here and now, we may revert to Sangharaj D. Rupawate (supra) to notice that if there are no grounds of opinion stated in the notification under S. 95, there is no manner in which the High Court can be satisfied about the grounds given by the Government to justify the order. This fundamental reason is sufficient for us to dissuade ourselves from accepting the request of the learned public prosecutor to look into the Government files, the existence of which itself is not reflected or expressed any where in the notification or elsewhere in the proceedings. Before parting, we may also record that the locus standi of the petitioners before us is not specifically challenged in this proceedings by the State Government. Nor are we persuaded to hold any lack of locus standi, in view of the well settled position of law as laid down in the decision of the Bombay High Court in Sangharaj Damodar Rupawate, Anand Patwardhan and Kunda, Pramila Vs. Nitin Gadre, Joint Secretary to the Government of Maharashtra, The State of Maharashtra, Government Pleader, High Court and Manisha Mhaiskar, Joint Secretary to the Government of Maharashtra , with which we are in complete agreement.

In the result and for the reasons stated above, this criminal miscellaneous case is allowed setting aside the impugned declaration made under S. 95 of the Code. The materials produced in sealed covers shall be duly returned. No costs.