NANCY JAMSHED ADAJANIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. HEARD Counsel. Distressing, misguided and misdirected is the only apt description for the action contemplated against the petitioners in these two cases. In Criminal Application No. 1062 of 1993, the petitioner, Ms. Nancy Jamshed Adajania, is a young journalist aged 21 years, who is a student of English literature. She is a graduate in politics from the Bombay University and has also been doing her M. A. in English literature. She is the author of an article published in the Illustrated Weekly of India titled "myth and Supermyth", published in the issue dated 10th/16th April 1993. She has pointed out that the article consists of a critical analysis of historical facts done as a matter of intellectual interest. She has extolled the great human qualities of Shivaji Maharaj, such as his courage, kindness and ingenuity. It is relevant to point out that the articles purports to be a well-researched piece of literature and the petitioner has relied upon standard books of history while writing it such as : i)Shivaji and his times by Sir Jadunath Sarkar, ii)Mazha Pravas by Venus Prakashan, Pune; iii)The Oxford History of India by Percival Spear, and iv)Indological Studies (based on Indological essays by Father Heras edited by Bernand Anderson and John Correira-afonse.

(2.) PETITIONER No. 1 in Criminal Application No. 1087 of 1993 Anil Chandrakant Dharkar is the Editor of the Illustrated Weekly of India and petitioner No. 2 Kersy Nariman Amaria is the Publisher and Printer of the magazine in question. The three petitioners have approached this Court because they apprehend arrest at the hands of the Crime Branch, C. I. D. , Bombay, or the Inspector of Police, Azad Maidan Police Station on a charge under section 153-A of the Indian Penal Code.

(3.) WHEN these petitions were presented before me on 15-4-1993 and 16-4-1993, after hearing learned Counsel on both sides, I directed that the accused should not be arrested until further orders. The new Code of Criminal Procedure, 1973, for the first time, introduced section 439 whereby it was open to a citizen who anticipated arrest to move a Court and obtain an order directing the authorities to release the person concerned on bail in the event of arrest. The Law Commission had pointed out that situations do arise wherein an arrest and retention in custody are unjustified, that these powers are sometimes misused or that in given cases, the detention in custody after arrest is wholly unwarranted in which cases anticipatory reliefs are well in order. A duty is, however, cast on the Court in such situations to examine the facts carefully and to ensure that no prejudice is caused to the investigation. It is a delicate balance whereby the liberty of the citizen and the operation of the criminal justice system have both to be equally safeguarded. Where it is pointed out that the action is mala fide or tainted, the courts are required to reach out and do justice by preventing harassment and unjustified detention.