State Govt`s Power of forfeiture and searching certain Publications under Cr.P.C

Sec-95- Power to declare certain publications forfeited and to issue search warrants for the same

(1) Where—

(a)any newspaper, or book, or

(b)any document,

wherever printed appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, 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 document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.

(2) In this section and in section 96,–

(a)”newspaper” and “book” have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867);

(b)”document” includes any painting, drawing or photograph, or other visible representation.

(3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of section 96.

Sec-96- Application to High Court to set aside declaration of forfeiture

(1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of section 95.

(2) Every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court.

(3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made.

(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub-section (1) of section 95, set aside the declaration of forfeiture.

(5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges.

Section 95 of the Code of Criminal procedure

Section 95 of the Code of Criminal procedure is an enabling provision, which, in the circumstances enumerated in the Section, empowers the State Government to declare that copy of a newspaper, book or document be forfeited to the Government. It is evident that the provision deals with any newspaper, book or document which is printed. 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 124A or Section 153A or Section 153B or Section 292 or Section 293 or Section 295A of the IPC, 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 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 Section 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 Section 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.

The scope and width of a somewhat similar provision contained in Section 99A of the Code of Criminal Procedure, 1898 (for short “the 1898 Code”) was examined by a Constitution Bench of this Court in Harnam Das v. State of Uttar Pradesh (supra). Speaking for the majority, A.K. Sarkar, J. held that in that case though the order of forfeiture passed by the Government had set out its opinion that the books contained matters the publication of which was punishable under Sections 153A and 295A of the IPC but it did not state, as it should have, the grounds of that opinion. Striking down the order of forfeiture, the learned judge observed as under:

Two things appear clearly from the terms of this Section. The first thing is that an order under it can be made only when the Government forms a certain opinion. That opinion is that the document concerning which the order is proposed to be made, contains “any matter the publication of which is punishable under Section 124A or Section 153A or Section 295A of the Penal Code.” Section 124A deals with seditious matters, Section 153A with matters promoting enmity between different classes of Indian citizens and Section 295A with matters insulting the religion or religious beliefs of any class of such citizens. The other thing that appears from the Section is that the Government has to state the grounds of its opinion. The order made in this case, no doubt, stated that in the Government’s opinion the books contained matters the publication of which was punishable under Sections 153A and 295A of the Penal Code. It did not, however, state, as it should have, the grounds of that opinion. So it is not known which communities were alienated from each other or whose religious beliefs had been wounded according to the Government, nor why the Government thought that such alienation or offence to religion had been caused.

Thus, the Court observed that in the notification it was not known which communities were alienated from each other or whose religious beliefs had been wounded and why the Government thought that such alienation or offence to religion had been caused. It was held that if the grounds of opinion are not stated, the order of forfeiture must be set aside, because then the Court cannot be satisfied that the grounds given by the Government justify the order. Inter alia observing that it is the duty of the High Court to set aside an order of forfeiture if it is not satisfied that the grounds on which the Government formed its opinion could justify that opinion, the Court also noted that it is not the duty of the High Court to find for itself whether the book contained any such matter.

Significance of setting out the grounds of the opinion of the Government was again emphasised in Narayan Dass Indurakhya v. State of Madhya Pradesh, (1972) 3 SCC 676. It was observed that grounds must be distinguished from the opinion, as grounds of the opinion must mean the conclusion of fActs on which the opinion is based. The Court said:

There is a considerable body of statutory provisions which enable the State to curtail the liberty of the subject in the interest of the security of the State or forfeit books and documents when in the opinion of the Government, they promote class hatred, religious intolerance, disaffection against the State, etc. In all such cases, instances of some whereof are given below the State Government has to give the grounds of its opinion. Clearly the grounds must be distinguished from the opinion. Grounds of the opinion must mean the conclusion of fActs on which the opinion is based. There can be no conclusion of fAct which has no reference to or is not ex facie based on any fact.

It was also observed that mere repetition of an opinion or reproduction of the Section without giving any indication of the fActs will not answer the requirement of a valid notification.

Section 99A of the 1898 Code again came up for consideration before a bench of three Judges of Supreme Court in The State of Uttar Pradesh v. Lalai Singh Yadav, (1976) 4 SCC 213. Emphasizing the importance of furnishing of grounds by the Government for its opinion, speaking for the bench, V.R. Krishna Iyer, J. observed as under:

8. A drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction, especially when quasi-penal consequences also ensue. The imperial authors of the Criminal Procedure Code have drawn up Section 99A with concern for the subject and cautionary mandates to government. The power can be exercised only in the manner and according to the procedure laid down by the law. Explicitly the section compels the government to look at the matter which calls for Action to consider it as to the clear and present danger it constitutes in the shape of promoting feelings of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments (there are other proclivities also stated in the section with which we are not concerned for the present purpose) and, quite importantly, to state the grounds of its opinion. We are concerned with the last ingredient. When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied. You do not state a thing when you are expressively silent about it. To state ‘is to declare or to set forth, especially in a precise, formal or authoritative manner; to say (something), especially in an emphatic way ; to assert’ (Random House Dictionary). The conclusion is inescapable that a formal authoritative setting forth of the grounds is statutorily mandatory….

While reiterating that a formal authoritative setting forth of the grounds is statutorily mandatory and the Court cannot make a roving enquiry beyond the grounds set forth in the order and if the grounds are left out altogether then there is nothing available to the Court to examine and the notification must fail, the Court also observed that the grounds or reasons linking the primary fActs with the forfeiter’s opinion need not be stated at ‘learned length’. In some cases, a laconic statement may be enough; in others a longer ratiocination may be proper. The order may be brief but it cannot be blank as to the grounds which form the basis of the opinion on which the Government relies. It was also observed that since an order of forfeiture constitutes a drastic restriction on the rights of a citizen, the relevant provisions of the Code have to be strictly construed.

At this juncture, it would be appropriate to refer to the decision of Apex Court, to which one of us (D.K. Jain, J.) was a party, in Manzar Sayeed Khan v. State of Maharashtra and Anr. (supra), which arose on account of registration of the FIR against the Author, Publisher and Printer, respondents No. 4 to 6 in this appeal, on publication and distribution of the book “Shivaji – Hindu King in Islamic India”, the subject matter of the present case. Quashing the FIR against the author, Apex Court observed that the intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of the IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. It was, inter alia, observed that the intention of the publication has to be judged primarily by the language of the book, the circumstances in which it was written and published; the matter complained of must be read as a whole and one cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. Reliance was placed on the decision of Apex Court in Ramesh v. Union of India and Ors., (1988) 1 SCC 668 wherein the observations of Vivian Bose, J. (as he then was) in Bhagwati Charan Shukla v. Provincial Government, AIR 1947 Nag 1 to the effect that “the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view” were approved.

In Baragur Ramachandrappa and Ors. v. State of Karnataka and Ors. (supra), Apex Court again considered the scope of Section 95 of the Code. Approving the interpretation of Sections 95 and 96 of the Code given by a special bench of the Patna High Court in Nand Kishore Singh and etc. v. State of Bihar and Anr., AIR 1986 Patna 98 wherein it was observed that it would be fallacious to mathematically equate the proceedings under Sections 95 and 96 of the Code with a trial under Section 295A of the IPC with the accused in the dock, the Court went on to elucidate that Section 95 did not require that it should be “proved” to the satisfAction of the State Government that all requirements of the punishing Sections including mens rea were fully established and all that Section 95(1) required was that the ingredients of the offence should “appear” to the Government to be present. While observing that Section 95 of the Code exemplifies the principle that freedom of speech and expression is not unfettered, Apex Court commended that freedom must be available to all and no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. It cannot be ignored that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted.

It would thus, appear that no inflexible guidelines can be laid down to test the validity of a notification issued under Section 95 of the Code.

Nonetheless the following legal aspects can be kept in mind while examining the validity of such a notification:

(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 Government’s opinion must be stated in the notification issued under Section 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 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 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 detail 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;

(iv) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited;

(v) The intention of the author has to be gathered from the language, contents and import of the offending material. If the allegations made in the offending article are based on folklore, tradition or history something in extenuation could perhaps be said for the author;

(vi) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153A of the IPC that the writing contains a truthful kind of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153A of the IPC;

(vii) Section 95(1) of the Code postulates that the ingredients of the offences stated in the notification should “appear” to the Government to be present. It does not require that it should be “proved” to the satisfAction of the Government that all requirements of punishing sections, including mens rea, were fully established;

(viii) The onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence, including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof;

(ix) The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.

REFER:  State of Maharashtra and OTHERS Versus Sangharaj Damodar Rupawate and OTHERS-(2010) CriLJ SC 4290 : JT 2010 (7) SC 216 : (2010) 7 SCC 398 : (2010) 8 SCR 328 : (2010) 6 SCALE 667