Vishwanath vs State of Punjab

R.L. Anand, J.

Healthy criticism of our old mythological stories/versions may not fall in the realm of deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs but once these parameters are infringed with the intention to spread hatred, such act would certainly fall within the meaning and definition of section 295A IPC. Constructive criticism in the right directions having the tendency to expose those social barriers which have divided our society, is permissible but if the criticism has been made to ridicule the religious feelings of a particular community, such an act would be, prima facie, attracted u/s 295A IPC and, in these circumstances, the responsibility of the author of the article, Publisher and Editor, becomes very heavy to ensure that no publication should prop up in the magazine which may either by words or by signs or by visible representations or otherwise, tries to insult the religion or the religious beliefs of a particular community.

Before I proceed further to discuss the point in hand in this petition u/s 438 Cr.P.C., let me incorporate the alleged offending words which have appeared in the magazine `Sarita'', May 1998 (2nd Part). The translation of some of the paras has been provided to this Court by the Counsel for the petitioner, and the same reads as under :

"If you see so, Sanyam is a good virtue, if a man observes Sanyam in his day to day life definitely most of his sorrows in life will be away. But it is regretted that from the ancient time to the modern, Sanyam has hardly become the basis of practice in Hindu religion. Hindu scriptures are full of gory descriptions and lack of Sanyam and love for sensuous pleasures of Gods and Goddesses and hold men.

The God Shiva The epitome of Sanyam became attracted to Vishnu in his Mohini form so much that it became difficult for Mohini to get rid of him. The cast a question mark on the ability to maintain Sanyam on the part of the so called God Shiva.

Shrimad Bhagwat Maha Puran 8/12/2533". Not only this according to Koorma Puran Shiva had committed mass illicit advances with the wives of holy men of Daru Vana. Even Vishnu participated in this disgusting act. Vishnu was being in the form of a woman. Shiva was molesting the wives of Munis and Vishnu their sons. On seeing this unbridled orgy Rishis and Munis badly rebuked them and even cut the genitals of Shiva.

Koorma Puran, Uttarardha 37/9. 17, 31, 38, 39, 40, 41, 53 and 54", Ling and Shiv Puran also confirmed these episodes.

Even Brahma got attracted towards this own daughter because of lack of control on his sexual urge.

Sexual free way of Indra is known worldwide. Rambha, Menaka, Urvashi etc, the Apsaras of his royal court had sexually relations from grandfathers to grandsons. Can you say that Maharishi Parsuram, Vishwamitra, Durvasha etc were having Sanyam when they used to get angry on trivial matters ? Images of men and women in nude, copulating and sexually excited, are they the result of any Sanyam ?"

The above para, which I have quoted, is not the complete translation of the alleged offending article though I have read the entire article with the assistance rendered by the counsel for the parties. One more para of the translation version is required to be incorporated in this order for the purpose of disposal of this petition, which reads as under :

"Therefore, it cannot be accepted that there was no poison of materialism in Indian culture. The truth is that materialistic culture which religious people otherwise criticise, did not come from outside but is spreading in our veins for centuries.

Recall the 4 symbols of Purusharth which have been prescribed as necessary by ancient writers of scriptures. Out of these symbols of Purusharth i.e. Dharam, Arth, Kam, Moksh are not too arth and kamm synonyms to pleasure and luxuries.

The practiced form of Tyag has been that whatever you have earned should be given to "deserving" so that he can make money without doing any work. Who can be this deserving person need not be described again and again. The same deserving person is enjoying for centuries without doing any hard work. He taught the importance of Tyag to others but how much he sacrificed himself is not known."

Having reasons to believe that he might be arrested in case FIR 126 dated 10.6.1998, registered in Police Station City Rajpura, Vishwa Nath, present petitioner, filed a petition u/s 438 Cr.P.C., at the first instance in the court of Addl. Sessions Judge, Patiala, which was dismissed vide orders dated 25.6.1998. The operative portion of the order passed by the learned Addl. Sessions Judge in para7 of the said order reads as under :

"The question to be seen is whether the case against the applicant is false: whether there are exceptional circumstances for making an order for releasing him on anticipatory bail; or whether offence under Section 295A IPC is made out against him. The applicant has tried to impress upon this Court that the objectionable article only reiterates whatsoever has already been said in Srimad Bhagvat Maha Puran and Kuran Puran. I have carefully gone through the relevant portions of those books. Whatever has been written in the article is not the reproduction of the wording of those books. In fact those books are in Sanskrit script and the translation contained therein has been made by the author of those books. A perusal of the article in question clearly shows that it is intended to hurt the feelings of the Hindu community, much has been said against Brahama, Vishnu and Shiva, who under the Hindu mythology are the Gods. Any person professing Hindu religion will not like to hear or read such like objectionable words against the Gods. Therefore, it cannot be said that from the FIR no offence under Section 295A IPC is made out. There is nothing to conclude that the FIR registered against the applicant is false."

Not satisfied with this order, petitioner has filed the present petition u/s 438 Cr.P.C.

Subsection (1) of Section 438 Cr.P.C., lays down that when any person has reason to believe that he may be arrested on an accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

A bare reading of the above section would show that the relief of anticipatory bail is discretionary and it has been left to the court when that discretion is not to be exercised in favour of the person who apprehends his arrest. In fact, a dual right has been given to the court before exercising the powers u/s 438 Cr.P.C. The words `may'' and `if it thinks fit'' are very relevant in this regard. Even if it is assumed for the sake of arguments that a person or an accused has made out a case for use of the said discretion, still the court has to see whether the exercise of such discretion would be in the fitness of the things to be utilized for the benefit of such person.

The learned counsel for the petitioner has sought the anticipatory bail for his client by submitting that in the present case the gravity of the offence is not such that the custodial interrogation of the petitioner is necessary. He submitted that the offence u/s 295A, IPC is punishable upto the maximum imprisonment of 3 years or with fine. Mr. Cheema further unfolded his submissions by submitting that the case of the prosecution is primarily based on the article published in Sarita magazine. In other words, only documentary evidence in this case has to be established by the prosecution and the petitioner does not dispute the publication of this article. The counsel further submitted that the object of Section 438 Cr.P.C., is not to deny the bail to a person until and unless his custodial interrogation is necessary. It was submitted by Mr. Cheema that the constitutional validity of section 295A IPC, can also be doubted besides that it is for the State Govt. which may or may not give the sanction for the prosecution of the petitioner.

The bail application has been opposed by the State and by the counsel appearing on behalf of the complainant, who submitted that the offending article was published with a calculated mind so as to hurt the religious feelings of a particular community. The Editor (petitioner) has acted in a most irresponsible manner when he has not even cared to see what would be the possible effect of this article. Such a person does not deserve any sympathy or discretion of the court u/s 438 Cr.P.C. which is an extraordinary power and should only be granted to a person if he makes out exceptional grounds.

I have already stated in the earlier portion of this order that healthy and constructive criticism from any quarter is acceptable to the law and to the society but we have to see if the intention of a responsible Editor is to ridicule a religion, especially the religion of the largest community of this country, such intention or act cannot be tolerated by the law because we have seen the repercussions and the effects of such hatred which are translated in the columns of various newspapers/magazines. Here the petitioner has exceeded his jurisdiction. He has written the offending lines which I have already reproduced above; with a deliberate and malicious intention to outrage the religious feelings of the Hindu community. His repetitive language used in the offending article indicates that he wanted to ridicule the religion by repeating the offending words though appearing in granth and Kuran, to such an extent that it may certainly hurt the religious feelings of a particular community. Such an Editor/Publisher who claims himself to be an honest critic does not deserve the sympathy of the court and his custodial interrogation is necessary, I do not want to make this order ugly by making more analysis of the words which have been used by the petitioner in this article. I am of the considered opinion that the petitioner does not deserve the concession of anticipatory bail and his bail application is hereby dismissed.

Nothing stated above shall amount to an expression of my opinion on the merits of the case.

Before I part with this order, I would call upon the executive authorities to consider whether any other offence other than the one u/s 295A IPC is also made out against the petitioner or not.