M L C GUPTA Vs. EMPEROR

JUDGEMENT

(1.) This is an application by the author of a book called "Jat Jati ke Mukammal Halat yani Jat Dar-pan, Part I," under Section 99-B, Criminal P.C., for an order to set aside the order passed by the local Government under Section 99-A forfeiting to His Majesty all co-pies of his book. The first question which arose for consideration was whether the learned Counsel for the applicant should open the case, or whether the Government Advocate should begin. That of course depends on the further question whether the onus of proof lies on the applicant or on the Government. No doubt the Full Bench in Emperor V/s. Baijnath Kedia 1925 47 All 298, were inclined to think that having regard to the framework of Section 99, the onus is cast upon the local Government; but added that the question of construction was not free from difficulty, and that the matter was not of any great practical importance. The importance of the question lies in the right to begin and then the final right of reply. The applicant's counsel naturally wishes to have the last word on the point in controversy. In a later case another Full Bench of this Court in Emperor V/s. Kali Charan Sharma 1927 49 All 856, definitely ruled that it is for the applicant to convince the High Court that for the reasons he gives the order of the local Government is a wrong order. These two views were sought to be reconciled in a third Full Bench of this Court, in R. Saigal V/s. Emperor 1930 ALJ 713, where it was held that the Bench were in complete agreement with the proposition laid down in Kedia's case (1), that the question of onus of proof after both the parties had been fully heard was of little or no practical importance, and considered that it was manifestly most convenient that the Government Advocate should begin and state the case in support of the local Government's order. The Bench, however, did not expressly endorse the view that the onus of proof lay on the applicant; and, therefore, did not dissent from the ruling of the Full Bench in Emperor V/s. Kali Charan Sharma 1927 49 All 856.

(2.) The language of Section 99-B is to my mind very clear, and it allows the applicant to have the order set aside by the High Court on the ground that the book in respect of which the local Government's order was made did not contain any seditious matter or other matters referred to therein. There is nothing in the framework of the section or its language which would suggest that the initial burden of proof is on the Government, and that therefore the Crown counsel must open the case and support the order of the Local Government, and then have the final right of reply. On the other hand the language clearly indicates that it is the applicant who has to make out a case in his favour. The importance of the question lies not only in the circumstance that there would be a right to have the last word in the matter, but also in that the applicant's counsel may open the case and may try to show that the intention of the author was innocent, and that the general tenor of the book and the purport of the subject-matter was not intended to promote hatred, enmity, or involve any attack on the religious beliefs and faith of others, but was intended for a laudable purpose. When the translations of objectionable passages are available for the Court, the applicant's counsel can certainly refer to them and satisfy the Court that they do not amount to objectionable matter within the scope of the section. We have accordingly allowed the applicant's counsel to open the case.

(3.) The language of Section 99-B might have created some doubt but that of Section 99 D makes it perfectly clear that if the Special Bench is not satisfied that the book contained objectionable matter it shall set aside the order of forfeiture. It would therefore follow that even where a passage is open to two interpretations and the matter is in doubt, the Bench would not be satisfied that the matter is objectionable; and must, therefore, set aside the order of forfeiture. Apparently this was the reason why the Full Bench in R. Saigal V/s. Emperor 1930 ALJ 713 remarked that where two views of a passage were reasonably possible, the applicant must have the benefit of that which is most favourable to him. The learned advocate for the applicant has strongly pressed before us that the accused had no intention of promoting hatred or enmity between any two classes of His Majesty's subjects, and has contended that the intention of the author to do so is a necessary ingredient. Now it is quite clear to my mind that there are many offences in the Indian Penal Code for which the proof of an express intention on the part of the accused is not at all necessary. Indeed, wherever it is necessary that intention should form a necessary part of the offence the sections expressly say so. No doubt the view has been expressed in Calcutta and Lahore that the true intention of the author will have to be shown before the order can be justified. In Chakarvati V/s. Emperor 1926 54 Cal 59, at. p. 64, the learned Chief Justice observed that: It must be the purpose or part of the purpose of the publisher to promote such feelings and, if it is no part of his purpose, the mere circumstance that there may be a tendency is not sufficient.