RE SHAMA NIAZI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THESE two applications under Section 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 the 4th august, 1969 and the 26th November, 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 religigious feelings of the Muslims, a class of citizens of India by insulting their religion and religious beliefs and the publication thereof is punishable under section 295a of the Indian Penal code.

(2.) 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. Namas ki Haquiquat published in 1958. Milad ki Haquiquat published in 1963. Maujeaza ki Haquiquat published in 1963, Tazia ki Haquiquat published in 1964, haquiquat vols. I and II published in 1968 and 1968, Rooh-E-Islam published in 1957 Tafaraqua-E-Islam published in 1956 and Haj Ki Haquiquat published in 1958; and one forms the subject-matter of Matter No. 31 of 1970 viz. Quarbani ki Haquiquat published in 1960. By orders contained in Notifications no. 1335-Pr/29/69 dated the 4th august, 1969 and No. 2005-Pr/29/69 dated the 26th November, 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 under Section 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 Suffi Niazi sect, a sect of Mohamedans, defining the principles of Suffism; 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 Suffi Niazi sect is also one of the sects of Mohamedanism; 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 the 5th June, 1970 and affidavit-in-reply affirmed on the 11th June, 1970 were duly filed by the parties in both the matters.

(3.) MR. Dilip Kumar Dutta, counsel appearing with Mr. R. C. Vyas, counsel in Matter No. 518 of 1969 made a twofold 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 Criminal Procedure Code 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 under section 99b of the Code and a proper consideration of the applications by the Special Bench under Section 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 under Section 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 order of forfeiture, those have certainly been disclosed in detail, in the affidavit filed later on at the time of the 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 tin 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 under section 99c of the Code will have to enter into the merits of the case, instead of setting aside the order of for-feiture 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 under Section 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 under Section 99b and of Rules 8 and 9 of Chapter 38, part II, of the Rules of the Calcutta high Court, Original Side, 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.