Shama Niazi vs State of West Bengal

N.C. Talukdar, J.—These two applications u/s 99B of the Code of Criminal Procedure, being Matter, No. 518 of 1969 and No. 31 of 1970, which are between the same parties and involve the same points, are taken up together for disposal upon consent by the Learned Counsel appearing on behalf of the respective parties. The applications are for setting aside two orders dated August 4, 1969, and November 26, 1969, passed by the Government of West Bengal forfeiting to the Government nine booklets, as mentioned therein, on the ground that those deliberately and maliciously outrage the religious feelings of the Muslims, a class of citizens of India, by insulting their religion and religious beliefs and the publication thereof is punishable u/s 295A of the Indian Penal Code.

The facts leading on to the filing of the two applications can be put in a short compass. The Petitioner in both the applications, Shama Niazi, is the author of several booklets in Urdu, eight of which form the subject-matter of Matter No. 518 of 1969, viz. Namaz ki Haquiquat, published in 1958, Milad ki Haquiquat, published in 1963, Maujeaza ki Haquiquat, published in 1963, Tazia ki Haquiquat, published in 1954, Haquiquat, vols. I and II, published in 1966 and 1968, Rooh-e-Islam, published in 1957, Tafaraqua-e-Islam, published in 1956 and Haj ki Haquiquat, published in 1958 ; and one form the subject-matter of Matter No. 31 of 1970, viz. Quarbani ki Haquiquat, published in 1960. By orders contained in the Notifications No. 1335-Pr/29/69 dated August 4, 1969, and No. 2005-Pr/29/69 dated November 26, 1969, the nine booklets referred to above were forfeited to the Government in exercise of the powers conferred by Section 99A(1) of the Code of Criminal Procedure. The said orders have been impugned by the present two applications u/s 99B of the Code of Criminal Procedure, being Matters No. 518 of 1969 and No. 31 of 1970 respectively. The case of the Petitioner, Shama Niazi, in both the Matters, inter alia, is that the aforesaid booklets are not in any way outrageous to the religious feelings of the Muslims; that therein the Petitioner merely tried to explain the way in which Islamic scriptures should be interpreted and followed and to give the true purport of the message of Islam; that the publication was specially made for the Sufi Niazi sect, a sect of Mohammedans, defining the principles of Sufism ; that while writing and publishing the aforesaid booklets the Petitioner never intended to promote the feelings of enmity or hatred between the different classes of citizens of India, nor did he intend to insult the religion or religious people of any such class, inasmuch as the Sufi Niazi sect is also one of the sects of Mohammedanism; and that in any event the two orders of forfeiture are bad in law because of the non-conformance to the mandatory provisions of Section 99A(1) of the Code of Criminal Procedure because of the absence of any statement of the grounds of opinion of the State Government as enjoined in the said section. Affidavit-in-opposition affirmed on June 5, 1970, and affidavit-in-reply affirmed on June 11, 1970, were duly filed by the parties in both the Matters.

Mr. Dilip Kumar Dutt, counsel appearing with Mr. R.C. Vyas, counsel in Matter No. 518 of 1969 made a two-fold submission. The first contention of Mr. Dutt is one of law and goes to the very root of the case. Mr. Dutt contended that the order of forfeiture is bad in law for a non-conformance to the mandatory provisions of Section 99A(1) of the Code of Criminal Procedure by not stating the grounds of opinion of the State Government. In this context, Mr. Dutt submitted that the absence of such grounds of opinion resulted in a denial of effective representation u/s 99B of the Code and a proper consideration of the application by the Special Bench u/s 99C of the Code of Criminal Procedure. Mr. Dutt further submitted that a subsequent disclosure of any such grounds of opinion, in the affidavits used at the time of the hearing, would not cure the infirmity of the order. The second contention of Mr. Dutt is that the order of forfeiture of the booklets u/s 99A(1) of the Code of Criminal Procedure is not also maintainable on merits inasmuch as the said booklets do not contain any matter which is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion of that class. Mr. Vyas, counsel appearing in support of the application in Matter No. 31 of 1970, adopted the submissions made by Mr. Dutt. Mr. Gopal Chandra Chakraborty, counsel (with Mr. R.L. Sinha, counsel) appearing on behalf of the Respondents the State of West Bengal, and Sri C. C. Basu, Deputy Secretary, Home Department, in both the Matters joined issue. With regard to the first ground raised by Mr. Dutt, the submission of Mr. Chakraborty is three-fold: firstly, that the grounds of opinion have in fact been given in the first part of the notification stating the opinion of the State Government though not repeated in the second part; secondly, that even if it be assumed that no grounds of opinion have been specifically mentioned in the orders of forfeiture, those have certainly been disclosed in detail in the affidavit filed later on at the time of hearing of the applications constituting thereby sufficient conformance to the requirements of the section; and thirdly, that the interpretation given by Mr. Dutt to the provisions of Section 99A(1) of the Code of Criminal Procedure would unnecessarily circumscribe the meaning thereof and defeat the intention of the Legislature. In this context, Mr. Chakraborty made an ancillary submission that on a proper interpretation of the provisions of Section 99B of the Code of Criminal procedure enjoining that an application thereunder would only lie on the ground that the issue of the newspaper or the book or other document in respect of which the order was made did not contain any seditious or other matter of such a nature as is referred to in Sub-section (1) of Section 99A, the Special Bench constituted u/s 99C of the Code will have to enter into the merits of the case, instead of setting aside the order of forfeiture on the preliminary ground that no grounds of opinion of the State Government have been stated in the impugned order of forfeiture. The second contention of Mr. Chakraborty is that the submissions on the merits of the publication made by Mr. Dutt and Mr. Vyas are wholly unwarranted and untenable because the said booklets clearly contain matters which are deliberately and maliciously intended to outrage the religious feelings of the Muslims, a class of citizens of India, by insulting their religion or religious beliefs and the publication of which is punishable u/s 295A of the Indian Penal Code. Besides his replies to the two contentions raised by Mr. Dutt, appearing on behalf of the Petitioner in the first Matter, and adopted by Mr. Vyas, appearing in the second Matter, Mr. Chakraborty, the Learned Counsel for the Respondents, raised one contention on his own at the end of his arguments, and the same is in'' the nature of a preliminary objection. Mr. Chakraborty contended that in view of the provisions of Section 99F relating to the procedure to be applied in cases of such applications u/s 99B and of Rules 8 and 9 of chap. 38, pt. II of the Rules of the Calcutta High Court, O.S., the applications are defective inasmuch as the vernacular documents annexed as exhibit to the petition and relied on by the applicant when presented before the Chief Justice as enjoined under Rule 9, was not accompanied by the exhibits and their translations annexed thereto.

Having heard the Learned Counsel appearing on behalf of the respective parties and on going through the materials on record including the affidavits filed by them in Court, we shall now proceed to determine the points at issue. The first point raised by Mr. Dutt, and supported by Mr. Vyas, is one of law and of some importance. A reference in this context is necessary to the provisions of Section 99A(1) of the Code of Criminal Procedure. The first part thereof is as follows:

Where�(a) any newspaper or book as defined in the Press and Registration of Books Act, 1867, or (b) any document, wherever printed, appear to the State Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable u/s 124A or Section 153A or Section 295A of the Indian Penal Code.

The second part is as follows:

The State Government may, by notification in the Official Gazette, 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 documents to be forfeited to Government etc.

The pith and substance of the section, therefore, is that when the State Government forms an opinion as to the contents of any publication which promote feelings of enmity or hatred between different classes of citizens of India or deliberately and maliciously intend to outrage the religious feelings of any such class, it shall state the grounds of such opinion and proceed to forfeit the publication by an order under notification as enjoined therein. Mr. Ghakraborty''s contention that the grounds of opinion are included in the words ''the formation of the opinion'' referred to in the first part of the section and, therefore, need not be reiterated again in terms of the second part of the section, would defeat the intention of the Legislature incorporated therein. The provision of Section 99A(1) of the Code of Criminal Procedure are partly subjective and partly objective. The first part of the section is subjective and relates to the formation of the opinion on the part of the State Government that the publication comes within the mischief of the said section and the second part is objective relating to the statement of the grounds of such opinion. Those are not to be considered independently inasmuch as one is complementary to the other. The interpretation sought to be given by Mr. Chakraborty to the provisions of Section 99A(1) of the Code of Criminal Procedure offends also against the rules of interpretation of statutes. As was'' observed by Maxwell on The Interpretation of Statutes, A statute is the will of the Legislature and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded ''according to the intent of them that made it� In this context, a reference may be made to the golden rule of construction. Viscount Simon L.C. held in the case of Nokes y. Qpncaster Amalgamated Collieries (1940) A.C. 1014 (1022) that�

The golden rule is that the words of a statute must prima facie be given their ordinary meaning..

It was further observed by the Lord Chancellor that�

At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. Judges are not called upon ordinarily to apply their opinion of sound policy so-as to modify the plain meaning of statutory words. It is again to be remembered that the principles of interpretation of statute rule out redundancy. As was observed by Lord Sumner in the case of Quebec Railway Light, Heat and Power Company Ltd. v. Yandry AIR 1920 P.C. 181 (186) that� Effect must be given if possible to all-the words used, for the Legislature is deemed not to waste its words or to say anything in vain.

Mr. Justice Subba Rao (as his Lordship then was) also observed in the case of Ghanshyam Das Vs. Regional Assistant Commissioner of Sales Tax, Nagpur, that�

a construction which would attribute redundancy to a Legislature shall not be accepted except for compelling reasons.

We respectfully agree with the said observations which rule out the interpretation given by Mr. Chakravorty. The provisions incorporated in subsequent sections, viz. Sections 99B to 99G of the Code laying down the scheme of the Act, also rule out the interpretation given by Mr. Chakraborty. Without any statement of the grounds of opinion in the order of forfeiture, it would not be possible for the party aggrieved to file the requisite applications before the High Court u/s 99B for setting aside the impugned order of forfeiture and not possible also for the Special Bench to be satisfied u/s 99D as to whether the impugned publication offended against Section 99A(1) of the Code of Criminal Procedure. We hold, accordingly, that the interpretation given to the provisions of Section 99A(1) of the Code of Criminal Procedure by Mr. Chakraborty seeks to read into the body of the said provisions much more than the Legislature ever intended and is accordingly unwarranted, untenable and de hors the statute.

We may now pass on to the cases cited in this context. In the case of Arun Ranjan Ghose v. State of West Bengal 59 C.W.N. 495 (499) (S.B.) Chakravarti C.J. delivering the judgment of the Court observed that-the absence of the mention of any grounds of the opinion set out in the order of forfeiture is fatal to the validity of the order. A reference may also be made to the case of Harnam Das Vs. State of Uttar Pradesh, . Sarkar J. (as his Lordship then was) delivering the majority judgment observed:

What then is to happen when the Government did not state the grounds of its opinion?.... It seems clear to us, therefore, that in such a case the High Court must set aside the order u/s 99D for it cannot then be satisfied that the grounds given by the Government justified the order.

We respectfully agree with the said observations and we hold that the absence of the statement of any grounds of opinion in the order of forfeiture vitiates the said order. The alternative contention of Mr. Chakraborty that, even if the order of forfeiture did not set out the grounds of opinion, the same having been disclosed later on in the affidavits at the time of the hearing, the said order of forfeiture cannot be set aside only on the ground of such absence of opinion in the said order. This contention again is not tenable because there cannot be any a posteriori reinforcement of an otherwise invalid order. The test is whether at the point of time when the order of forfeiture was notified, the same was a valid one or not, within the ambit of Section 99A(1) of the Code of Criminal Procedure and, if it be not so, a subsequent disclosure of the grounds of opinion cannot retrospectively validate an otherwise defective order. It is pertinent in this context to refer to the case of Md. Khaled S/o Mohammed Khaleef v. Chief Commissioner, Delhi AIR 1968 Del. 13 (15-16) (F.B.). Hegde C.J. (as his Lordship then was) delivering the judgment of the Court observed that such a compliance is a sine qua non of the validity of the notification and a notification which does not incorporate the grounds of the opinion, would be not in conformity with law. The law in this respect has to be substantially complied with and it is not enough to merely reproduce the language of Section 124A, 153A or 295A without specifying as to how or in what manner there has been contravention of the provisions of those sections.

It was further observed by the Full Bench that if the above-mentioned notification suffered from an infirmity, inasmuch as it did not contain ground on which the opinion of the Chief Commissioner was based, the same cannot be cured by the filing of the affidavit of the Under-Secretary during these proceedings.

We agree with the said observations and hold that the alternative contention made in this behalf by Mr. Chakraborty that the subsequent disclosure of the grounds of opinion in the affidavits filed on behalf of the State Government would validate the order of forfeiture, is unwarranted and untenable.

The ancillary submission of Mr. Chakraborty does not also stand on a firmer ground. Mr. Chakraborty contended that even if the order of forfeiture be found to be defective u/s 99A(1) of the Code of Criminal Procedure the Special Bench cannot dispose of the application only on that preliminary ground without entering into the merits as enjoined u/s 99A of the Code of Criminal Procedure that on the ground that the issue of the newspaper or the book or other document, in respect of which the order was made, did not contain any seditious or other matter of such a nature as is referred to in Sub-section (1) of Section 99A.

This will, however, clearly circumscribe the intention of the Legislature. The provisions of Section 99B do not rule out any possible objection on the ground of jurisdiction and similar other grounds, which may be available in law to the applicant at the time of the hearing, merely because the same ground is not incorporated specifically in the body of Section 99B. On a proper interpretation, the order the High Court is to consider must be a legal order conforming to the requirements of Section 99A(1) of the Code of Criminal Procedure and, if the said order does not conform to the requirements of the statute, it can certainly be set aside on that ground alone. Besides, that Section 99B cannot be considered in detachment from the scheme of the Act but has to be considered in the context of the other material provisions, including those u/s 561A of the Code of Criminal Procedure, incorporating the inherent power of the High Court. The observations made by Sir Lawrance Jenkins C.J. in the case of In re Mohammad All ILR Cal. 466 were made in a different context and against the backdrop of Section 22 of the Press Act I of 1910. The position now is entirely different after the amendment of the Code and, therefore, the aforesaid principles, relied upon by Mr. Chakraborty, will no longer hold good. Mr. Chakraborty again relied on the observations of K. C. Das Gupta J. (as his Lordship then was) in the case of Hamam Das v. The State of Uttar Pradesh (Supra, p. 1669) namely that the duty cast by Section 99D on the Judges of the High Court is not to see whether in a particular case the grounds stated by the Government for forming its opinion are correct, but to see whether the opinion formed was correct, but in view of the majority judgment delivered in the same case holding otherwise, the said submission is not tenable. The ancillary ground now raised by Mr. Chakraborty was a taken at the time of the hearing of the case reported in Arun Ranjan Ghose v. State of West Bengal (Supra) and considered by their Lordships and also in the case reported in Hamam Das v. The State of Uttar Pradesh (Supra, p. 1669) but was overruled. The findings of the Supreme Court on the� point are binding on us under Article 141 of the Constitution of India. We accordingly overrule the ancillary submission put forward by Mr. Chakra-borty and hold that the failure on the part of the State Government to state the grounds of its opinion in the order of forfeiture is fatal to the validity thereof.

Mr. Chakraborty has finally submitted that in any event the objection raised by the applicants is a technical one and orders of forfeiture based on public policy should not be so weighed in golden scales at this stage. While it is true that justice need not be as precise as chemistry, it is also true that it must be in accordance with the procedure established by law. When in the context of the Judicial Reforms in England, Bentham posed the question ''Does justice require less precision than chemistry?'', the answer given was that the precision attainable in the one case is of a nature which the other does not admit. In this context a reference may be made to the observations of Lord Coleridge J. in the case of Rex v. Dickinson, New Castle Summer Assizes (1910) New Castle Summer Assizes, viz. that the law does not demand that you should act upon certainties alone.... In our lives, in our acts, in our thoughts, we do not deal with certainties, we ought to act upon just and reasonable convictions founded upon just and reasonable grounds.

The absence of any statement of the grounds of opinion in the orders of forfeiture, as enjoined u/s 99A(1) of the Code of Criminal Procedure, "does constitute such a reasonable ground and is fatal to the validity of the said orders.

The point at issue may also be approached from another standpoint, viz. a non-conformance to the procedure established by law. The order of forfeiture based on such a notification is not in accordance with procedure established by law and is consequently unwarranted and untenable and is liable to be quashed. In the well-known case of Taylor v. Taylor (1876) 1 Ch.D. 426 (431) Jessel M.R. observed that when a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed out, it means that no other mode is to be adopted....

The said principles were approved of and applied by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. The King-Emperor 63 I.A. 372 (381-82). Lord Roche, delivering the judgment of the Judicial Committee, observed that the rule which applies is a different and not less well recognized rule, viz. that where a power is given to do a certain thing in a certain way the thing must be done in that Way or not at all. Other methods of performance are necessarily forbidden.

In a later decision the Supreme Court again reiterated the said principles when in the case of State of Uttar Pradesh Vs. Singhara Singh and Others, A. K. Sarkar J. (as his Lordship then was) delivering the judgment of the Court observed that the rule adopted in Taylor v. Taylor (1876) 1 Ch.D. 426 is well recognized and is founded on sound principle. Its result is that. if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that, if this were not so, the statutory provision might as well not have been enacted.

It may also be pertinent to refer to the case of Ed. Tumey, Plaintiff in Error v. State of Ohio, Defendant in Error 273 U.S.S.C.R. 510 wherein Taft C.J. pinpointed ''the requirement of due process of law in judicial procedure'' and condemned every procedure which denies the party aggrieved such due process of law. It is quite true, as has been observed by Kania C.J. and Mukherjee and Dass JJ. (as their Lordships then were), in the case of A.K. Gopalan Vs. The State of Madras, that it is not proper to construe the expression ''procedure established by law'' in the light of the meaning given to the expression ''due process of law'' in the American Constitution by the Supreme Court of America. But the said case of Ed. Tumey (12) is cited not so much by way of a precedence but as one of analogy, more so in view of the expression used therein, namely ''in judicial procedure''. We respectfully agree with the observations made in the above-mentioned cases and hold that the orders of forfeiture, in the absence of any grounds of opinion, are de hors the provisions of Section 99A(1) of the Code of Criminal Procedure and are bad and repugnant. The first contention of Mr. Dutt accordingly succeeds.

In view of our findings on the first point as above, it is not necessary for us to consider and determine the second point raised by Mr. Dutt on the merits of the publications, namely, as to whether they offend the provisions of Section 99A(1) of the Code of Criminal Procedure or not. We make it quite clear, however, that we make no observations as to the merits thereof.

The only other point that now abides our consideration is the preliminary objection. Mr. Chakraborty submitted in all fairness that he did not like to press this point in the beginning, but for a proper determination of the issues involved, he considered that the same should also be urged ex debito justice The steps of reasoning advanced by Mr. Chakraborty, in this behalf, are that Section 99F of the Code of Criminal Procedure lays down the procedure applying to such applications before the High Court: that under Rule 8 of chap. XXXVIII, pt. II of the Rules of the Calcutta High Court, O.S., all vernacular documents annexed to the petition and all vernacular documents relied on by the applicants and intended to be tendered in evidence, shall be translated into English by a competent and duly qualified translator; that under Rule 8 of the said chapter the petition with exhibits annexed thereto and their translations, if any, together with a copy of such petition and exhibits with translations, shall be presented to the Chief Justice who will constitute the Special Bench for the purpose; and that the applications are vitiated by a nonconformance to the said provisions and are, therefore, not in accordance with law. The reasons put forward by Mr. Chakraborty overlook two facts�firstly, the orders passed by this Court on January 27, 1970 and February 20, 1970, whereby the present objection was given the go-by to and, secondly, that the Petitioner has not relied on the merits of the booklets published but on the inherent defect in the order of forfeiture passed, and therefore there is no question of any non-conformance to the rules of this Court or of any procedure established by law, vitiating the petitions for a non-conformance thereto. Mr. Dilip Kumar Dutt, counsel appearing in support of the application in Matter No. 518 of 1969, also pinpointed the grounds referred to above and reiterated that he was not relying on the merits of the booklets but on the inherent defect of the order of forfeiture. Mr. Dutt further submitted that Rule 6 of chap. XXXVIII, pt. II of the Calcutta High Court, O.S., inter alia, provides as follows:

All documents or copies thereof in, proof of such interest together with a copy of the notification as to the order of forfeiture...shall be annexed as exhibits to the petition.

In view of the said Rule and the orders passed by this Court on January 27, 1970 and February 20, 1970, and in view of the scope and ambit of the submissions made on behalf of the Petitioners, Mr. Dutt ultimately contended that this belated preliminary objection is unwarranted and untenable. We agree with the said submission, and the preliminary objection raised by Mr. Chakraborty accordingly fails.

In the result, we allow the two petitions, and we set aside u/s 99D of the Code of Criminal Procedure the orders of forfeiture. The parties will bear their own costs.

Masud, J.

I respectfully agree with the reasoning and conclusions arrived at by my learned brother Talukdar J., but I would like to lay stress on one question relating to the scope and effect of Section 99D of the Code of Criminal Procedure: is the Count justified to set aside an order u/s 99A as a preliminary point of law without examining the impugned publication ? All crimes in a sense are public offences, but there are some wrong which have greater bearing on members of the public and society than other offences, Offences u/s 124A, 153A or 295A of the Indian Penal Code are mentioned in Section 99Aof the Code. Offences u/s 124A are included under ''offences against the State'' in chap. VI and Section 153A in chap. VIII under ''offences against the public tranquility''. Similarly Section 295A in chap. XV under the title ''offences relating to religion''. As the offences have a direct bearing on the well-being and stability of the State, a strict legalistic construction of Section 99D should be avoided. Even if such view is taken the said sub-clause does not refer to an ''order u/s 99A''. It states on receipt of an application the Special Bench shall, if it is not satisfied that the issue of the newspaper or the book or other documents in respect of which the application has been made contained seditious, or other matter of such nature as referred to in Sub-section (1) of Section 99A, set aside the order of forfeiture. An order u/s 99A can only be set aside u/s 99D. Section 99D enjoins the Court to have the satisfaction that the impugned publication is offensive. In doing so the Special Bench would naturally consider the correctness of the grounds of opinion, but the omission to mention grounds of opinion in the order itself on the part of the executive, bona fide or mala fide, cannot absolve Court''s responsibility to examine the forfeited document itself and then uphold or set aside the order of forfeiture.

The point was raised in Arun Ranjan Ghose v. State of West Bengal and Chakravartti C.J. has replied to such contention by stating, inter alia, that as the order of forfeiture does not specify which class of the Indian citizens has been affected by such publication, and as no grounds of the opinion are stated in the order of forfeiture there is no occasion for the Court to examine the legality of the Government''s opinion. In the present case before us, the specific grounds of opinion have not been mentioned but it does specify the section of the Indian citizens whose religious feelings are alleged to have intended to be outraged on account of such publication.

Be that as it may, as my learned brother has stated that we are bound by the majority decision of the Supreme Court in Harnam Das v. State of Uttar Pradesh (Supra), the order in both the Matters be set aside.

Amaresh Roy, J.

I fully agree with the conclusions arrived at by my learned brother Talukdar J. that the order in both these Matters should be set aside. I may shortly refer how these Matters were brought upto this Court and also in brief state my own reasons for those conclusions. In doing so, I shall also briefly deal with the jurisdictional aspect dealt with by my learned brother Masud J.

Those two Matters have been brought to this Court by two applications by the same party Shama Niazi; both of them are u/s 99B of the Code of Criminal Procedure and are directed against two orders made u/s 99A of that Code. Those orders were made by the State of West Bengal in respect of several books published by the Petitioner. The first of the Matters before us is in respect of an order dated August 4, 1969, forfeiting eight books, one of them in two volumes by Notification No. 1335-P.R./29/69. The second Matter is in respect of an order dated November 29, 1969, forfeiting one book by Notification No. 2007-KR./29/69. Application in the Matter No. 518 of 1969 was filed on September 30, 1969, and the application in Matter No. 31 of 1970 was filed in Court on January 21, 1970-

Both the applications were presented before the Hon''ble the Chief Justice in accordance with the rules framed by this Court u/s 99F, Code of Criminal Procedure, and both of them have been directed by his Lordship to be heard by this Special Bench composed of us three Judges as is required by Section 99C, Code of Criminal Procedure.

In the Matter No. 518 of 1969 Mr. Dilip Dutt with Mr. Vyas has appeared for the Petitioner and in Matter No. 31 of 1970 Mr. Vyas has appeared for the Petitioner. In both the Matters the State of West Bengal has been represented by Mr. Gopal Chakraborty with Mr. R.L. Sinha instructed by the Government Solicitor.

While the applications were placed before this Special Bench the learned Advocates for the Petitioner filed printed copy of the books forfeited under the respective orders. As those publications were in Urdu language, we directed the Petitioner in each case to file English translation of the books with affidavit, copies of which were directed to be served on the Government Solicitor who was directed to file his client''s affidavit-in-opposition locating therein the relative passage both in the original Urdu books and the translation.

Affidavits-in-opposition were filed after time was extended on one or more occasions. Affidavits-in-reply have been filed by the Petitioner in both the Matters.

Both the Matters were heard together and counsel for both the parties agreed to abide by the decision in the first Matter because the charges in both the Matters were same and the points involved in both the Matters were same. Mr. Dilip Dutt for the Petitioner in Matter No. 518 of 1969 has advanced the main contentions and his arguments on the whole have been adopted by the learned Advocate Mr. Vyas in Matter No. 31 of 1970.

On behalf of the State of West Bengal Mr. Chakraborty has addressed the Court for repelling the contentions raised on behalf of the Petitioner.

The contentions have been dealt with by my learned brother Talukdar J. in general as also in one aspect by my learned brother Masud J. As I have already said they I agree with the conclusions of their Lordships (i) that absence of grounds of opinion in the order made u/s 99A, Code of Criminal Procedure, is fatal to the validity of the order, and on that ground the two orders in the two Matters before us must be held to be not in accordance with the law and liable to be set aside; (ii) The scope of the hearing and decision before the Special Bench is not limited to the ground that has been expressly mentioned in Section 99D, Code of Criminal Procedure, when the impugned order is shown to be specific and inherent in conformity with facts, its validity and legal existence, it is open to the Court, nay, it is Court''s duty to examine the order to arrive at the decision whether or not the impugned order is in conformity with the requirement of Section 99A; and (iii) The objection as to the maintain ability of and correctness of the procedure followed by the Petitioner in presenting the applications in the two Matters or raised by Mr. Chakraborty on behalf of the State of West Bengal at the close of his argument that it was in the nature of a preliminary objection has no merit and should be overruled.

I shall deal with that preliminary objection first. Mr. Chakraborty''s contention was that Rule 8 of the Rules framed by this Court tinder Section 99F, Code of Criminal Procedure, has not been complied with by the Petitioner inasmuch as the affidavit supporting the English translation filed of the Urdu books has been sworn to by the Petitioner himself, i.e. Shama Niazi, and not by the person who has made the translation as would be necessary under Rule 25 of chap. IX of the Original Side Rules of this Court. To this objection of Mr. Chakraborty, Mr. Dilip Dutt has answered by referring to Rule 6 in chap. XXXVIII in the Rules framed u/s 99F. He points out that under Rule 6 what is needed to be annexed as exhibits to the petition are ''all documents or copies thereof for proof of such interest'' which interest is mentioned in the earlier part of the Rule as the interest of the applicant in the newspaper, book or other document in respect of which the order of forfeiture has been made.

Rule 8 provides that�

All vernacular documents annexed as exhibits to the petition and all vernacular documents relied on by the applicant and intended to be tendered in evidence shall be translated into English by a competent and duly qualified translator or translators so that no question may arise as to the accuracy of the translations or the admissibility in evidence of the documents and the translations annexed to them by reason of defects in such translations. Mr. Dutt, therefore, has contended that the translation of documents tendered in evidence under Rule 6 only are governed by Rule 8.

In the present case, as I have already mentioned, the applications were presented to the Court of the Hon''ble Chief Justice. Neither the original Urdu books nor any translation thereof were annexed to the petition when it was so presented. Only when the Matters were placed before this Special Bench appointed by the Chief Justice u/s 99C, then only to give aid to the Court for deciding the Matters the Learned Counsel for the Petitioner, Mr. Dutt, filed printed Urdu books in original. At that stage we had directed the Petitioner to file English translations of those Urdu publications. It is clear, therefore, that none of those documents were either tendered in evidence or annexed to the petition so as to attract either Rule 6 or Rule 8 of chap. XXXVIII of the Original Side Rules which are the Rules applicable to the present proceedings. No. Rule 25 of chap. IV of the Original Side Rules is attracted.

In any event, we have decided that the impugned orders of forfeiture should be set aside for the reason that it is not an order in conformity with Section 99A, Code of Criminal Procedure, inasmuch as it has not stated in the order the grounds of opinion on which the State Government had taken action u/s 99A. We have not decided any question on the merits of the publication and we have left that question open. I now briefly state my reasons for holding that the impugned orders should be set aside.

Principal contention on behalf of the Petitioner raised by his learned Advocate Mr. Dilip Kumar Dutt is that the orders by which the State Government has taken action to forfeit the publication are in conformity with the essential requirements u/s 99A, Code of Criminal Procedure. He relies on the structure and contents of that section to point out that in the first part of that section it must appear to the State Government to contain any of the offending matters mentioned therein. When that requirement of the opinion of the State Government regarding the character of the publication have been fulfilled, then only the State Government is enabled to take action u/s 99A. Then, in the second part of the section the manner of that action by notification in the Official Gazette is prescribed, that manner being ''stating grounds of his opinion''. Mr. Dutt contends that only conforming to that essential requirement of the manner of exercising of the power given" by Section 99A the State Government can declare the publications to be forfeited to the Government. In his submission, the first part of Section 99A is the enabling fact as it appears to the State Government and the second part is the manner that law requires for making the declaration stating the grounds of its opinion. He contends that even when the enabling requirements, i.e., formation of the opinion of the State Government regarding the character of the publication may be existing, unless in the notification the grounds of that opinion are stated, the order or notification is not in accordance with the essential requirements of Section 99A and is liable to be set aside for that reason alone. In other words, according to Mr. Dutt''s contention, omission to state grounds of the opinion in the order or notification made by the State Government is fatal to the order or notification. In support of that contention Mr. Dutt relies, first, on the decision of this Court in the case of Arun Ranjan Ghose v. State of West Bengal. That judgment is also one by the Special Bench constituted u/s 99C, Code of Criminal Procedure. The. Special Bench was composed of Chakravartti C.J. and Lahiri and P. B. Mukharji JJ. (as their Lordships then were). There it was held:

It is useful to consider here what is meant by grounds of opinion. The formation of an opinion by Government is - undoubtedly the ground for the action taken by them, but the grounds for the opinion are obviously different. The opinion, after it has been formed, furnish a ground to Government for taking the action contemplated, but the grounds on which the opinion itself is formed are and must be other grounds. Those grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication, either as a whole or any part of it, as illustrated by passages which Government may choose.

By setting out the order that fell for consideration by the Special Bench in that case Chakravartti C.J. speaking for the Court pointed out three defects in that order: (i) That order did not even state specifically that it appeared to the Government that the book contained the matter which bear the character mentioned ; (ii) While the opinion upon which the Government acted and made the order of forfeiture was stated, the grounds on which that opinion had been formed were nowhere mentioned in the order; and (iii) Even the opinion of the Government upon which they purported to have made the order of forfeiture had not been properly stated. The learned Chief Justice in his judgment expressly overlooked the first of the defects above-mentioned but held that the other two defects to be of fundamental character going to the root of validity of the order, so'' much so that he held that the absence of any of the mentioned grounds of the opinion set out in the order of forfeiture is fatal to the validity of the order and policy and| that the order is clearly vitiated by the other defects as well. In other words, the ratio of that decision is that any of the second and third defects above-mentioned is fatal to the order and is enough to vitiate it. Then the learned Chief Justice observed in his judgment:

I desire only to add that Section 99A vests Government with drastic powers in the interest, undoubtedly of peace, order and good administration, so that if they find that some publication has or is likely to have undesirable effect mentioned in the section, they may intervene and remove it from circulation. There can be no doubt that when those powers are properly exercised, they are exercised for the good of the society. At the same time, it ought not to be overlooked that the exercise of the power must necessarily constitute an invasion of some right of the persons against whom action is taken and, therefore, Government cannot be careful to see that their opinion is properly formed and that it is properly expressed in accordance with the terms of the statute.

Mr. Dutt also pointed out that the said decision of the Special Bench of this Court was approved by the Supreme Court in the case of Harnam Das v. State of U.P. (Supra).

In the case before us both the orders in the two Matters were in material part in similar terms. We quote below the Notification No. 1335-PR/29/69 dated August 4, 1969.

No. 1335-PR/29/69 Pt. 1�4th August 1969�Whereas it appears to the Governor that booklets in Urdu written by Shri Shama Niyazi as noted below (hereinafter referred to as the said booklets) contain matters which are deliberately and maliciously intended to outrage the religious feelings of the Muslims, a class of citizens of India, by insulting their religion and religious beliefs and the publication of which is punishable u/s 295A of the Indian Penal Code, 1860 (Act 45 of 1860).

(1) Namaz Haquiquat.

(2) Milad ki Haquiquat.

(3) Maujeza Haquiquat.

(4) Tazia ki Haquiquat.

(5) Haquiquat, vols. 1 and 11.

(6) Rooh-e-Islam.

(7) Tafaraqua-e-Islam.

(8) Haj ki Haquiquat.

Now, therefore, in exercise of the power conferred by Section 99A of the Code of Criminal Procedure, 1898 (Act 5 of 1898), the Governor is pleased hereby to declare every copy of the said booklets and all other documents containing copies, reprints and translations of, or extracts from, the said booklets to be forfeited to the Government.

It has to be noticed that in that notification the first of the three defects mentioned in the judgment of Chakravartti C.J. in Arun Ranjan Ghose v. State of West Bengal does not appear. In the order before us it has been expressly stated ''whereas it appears to the Government....'' That point, therefore, need not detain us in the present case.

My learned brother Talukdar J. in his judgment just delivered has held that the orders before us should be set aside for omission to state the grounds of opinion alone and has not expressed any opinion regarding the question where the third defect also appears in the orders. I will, therefore, limit my consideration to Mr. Dutt''s contention that for the reason of omission to state the grounds of its opinion in the order itself should be held to be fatal and vitiating the order. While dealing with that important question the Learned Counsel for the State, Mr. Ghakraborty, at the outset of this address to us rightly comprehended that in view of the decision of the Supreme Court in Harnam Das Vs. State of Uttar Pradesh, he would have not much to argue before us. But the Learned Counsel argued that there was no omission to state the grounds of opinion and, therefore, there was no defect in the order on that scope. Mr. Chakraborty''s contention is that in the first part- of Section 99A, Code of Criminal Procedure, where the three alternative characters of the publication are mentioned, those are really the grounds for the opinion of the State Government which only the second part of the section requires to be stated in the order. Mr. Chakraborty proceeds to argue that in the order we have before us one of those characters has been mentioned in the order and then the order proceeds to say ''now therefore Government is pleased to direct.....''. According to him, by use of the words ''now therefore'' the ground of the opinion has been stated in the order to be the particular character of the publication described in the first part of the order. That argument appears to me to reveal lack of understanding of the structure and contents of %. 99A, Code of Criminal Procedure, so elaborately discussed in the judgment of this Court in Arun Ranjan Ghose v. State of W. Bengal) which has received approval of the Supreme Court as I have mentioned above. The three alternative characteristics of the publication mentioned in first part of Section 99A, Code of Criminal Procedure, are no more than the opinion of the State Government. When it appears to the Government so, over and above existence of that opinion of the State Government, the section requires the grounds of its opinion AIR 1961 S.C. 1662 (1666) Supra (5) Supra to be stated in the order. Existence of the opinion of the State Government may no doubt be viewed as the ground of taking action ; that is the enabling part of the section. In taking action under the section by making an order of forfeiture the section further requires that the ground for its opinion must be stated. In my view, it comes to this that the Legislature has insisted that in the order the grounds why the State Government is of the opinion that the impugned publication bears one or the other character that enables the State Government to take action. Mere statement of the existence of opinion of the State Government regarding the character of the'' impugned publication cannot do the duty for the grounds of that opinion. In my view, therefore, Mr. Chakraborty''s contention cannot be accepted. For those reasons I agree with my Lords that there is fundamental defect in the order by omitting to state the grounds of its opinion and the order is liable to be set aside for that reason alone.

I find it not a little astonishing that in making the present orders, which being orders of the importance that was explained by Chakravartti C.}. in the passage quoted above, the authorities have shown their complete neglect of essential requirements of law insisted upon by Section 99A, Code of Criminal Procedure, which were clearly stated by this Court in 1955. Not only so, that decision of this Court was approved by the Supreme Court in 1961. Yet, in making the two orders before us, one of which was issued in August 1969 and other in January 1970, the State Government of West Bengal appears to have acted in complete neglect of essential requirements of law fully discussed in those decisions. I feel constrained to observe that the State Government appears to be unaware that Section 99A, Code of Criminal Procedure, is a restriction on a fundamental right guaranteed under Article 19(l)(a) of the Constitution of India and in making the order which curtails that fundamental right, it is not only necessary but also essential to adhere to the strict requirements of Section 99A as my learned brother Talukdar J. has emphasized by drawing attention to authoritative decisions laying down that when a statute enables to exercise a power by acting in a particular manner specified in the statute, that power can be exercised only in that particular manner or not at all.

Mr. Chakraborty for the State then drew our attention to Section 99D, Code of Criminal Procedure, and contended that the only jurisdiction that this Special Bench has is to examine the impugned publication for deciding on the question whether the publication did or did not contain any of the offending character mentioned in Section 99A. On such- examination of the impugned publication, if the Special Bench is not satisfied that the publications contain matters of such nature, then only the Special Bench shall set aside the order of for feature. Mr. Chakraborty contends that the order or forfeiture cannot be set aside by the Special Bench for any defect in the form of the order. In raising that argument Mr. Chakraborty has endeavored to re-open a long chapter on that question of law which had troubled many High Courts in India including this High Court. But the chapter is no longer open and it has been closed by the statement of law in that respect by the Supreme Court in the case we have already mentioned: Harnam Das v. State of Uttar Pradesh (Supra). It may be recounted that so far as this Court is concerned, at a state of law when these groups of sections, i.e. Sections 99A to 99D had not yet been imported into and engrossed in the Code of Criminal Procedure by the Amending Act of 1922, when these sections were remaining as provisions in the Indian Press Act (I of 1910), this Court took the view of the limited jurisdiction as is now contended for by Mr. Chakraborty: In re Mahammad Ali (Supra ). That view prevailed also In re Amrita Bazar Pratika Press Ltd. ILR Cal. 190 (207, 245). Both those cases were decided when this branch of law was the part and parcel of the Press Act of 1910 in which Section 22 was existing. The question was directly raised in 1955 before the Special Bench presided over by Chakravartti C.J. in the case which I have already mentioned: Arun Ranjan Ghose v. State of West Bengal (Supra). That was when this group of sections (99A to 99D) were engrossed in the Code of Criminal Procedure and Section 22 of the Press Act of 1910 had been repealed. By devoting deep consideration into the state of law that the Special Bench decided against the contention now raised by Mr. Chakraborti. In several other High Courts in India contrary views were being held. In the Allahabad High Court in the case of Harnam Das v. Slate of U.P. (Supra) that contrary view was given effect to. That case was taken on appeal to the Supreme Court and by the judgment of the Supreme Court reported in Harnam Das v. State of Uttar Pradesh the question has been resolved by the law stated by the Supreme Court in these words:

What then is to happen when the Government did not state the grounds of its opinion ? In such a case, if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have any contemplation at all. If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government. This, as already stated, the High Court has no power to do u/s 99D. It seems clear to us, therefore, that in such a case the High Court must set aside the order u/s 99D for it cannot then be satisfied that the grounds given by the Government justified the order. You may not be satisfied about a thing which you do not know. This is the view that was taken in Arun Ranjan Ghose v. State of West Bengal 59 C.W.N. 495, and we are in complete agreement with it. The present is a case of this kind. We think that it was the duty of the High Court u/s 99D to set aside the order of forfeiture made in this case.

That was the statement of law by the Supreme Court by the majority view expressed in the judgment delivered by Sarkar J. (as his Lordship then was). That law stated by the Supreme Court is binding on us under Article 141 of the Constitution of India though we have very respectfully noticed a contrary view taken in that very case by Das Gupta J. who dissented from majority view. The counsel for the State of West Bengal adopted, as his submission to us, that minority view held by Das Gupta J. He cannot be heard to say, as Mr. Chakraborty tended to say, that we should hold in his favour and follow the view expressed in the judgment of Das Gupta J. in preference to the majority view of the Supreme Court. I unhesitatingly reject Mr. Chakravartti�s contention on this point, 35. For the reasons above-mentioned I agree with my learned brothers that the orders forfeiting the publication must be set aside for the fundamental defect in the impugned notifications. Both the Petitioners succeed and parties will bear their own costs.