1. This case arise from an application made by Pt. Kalicharan Sharma under Section 99-B, Criminal P. C., as amended by Act, 36 of 1926.
2. The applicant is the author of a book written in Hindi and entitled 'Bichitra Jiwan' which was first published at Agra in November 1923 and which purports to treat of the life of the prophet Mohammad.
3. In October last the Local Government of these provinces took action under the powers conferred by Section 99-A of the Code (as amended by the Act above mentioned) and declared the book to be forfeited to His Majesty on the ground that it contains matter the publication of which is punishable under Section 153-A, I. P. C.
4. By the application now before us we are asked to set aside this order of the Local Government on the ground that the book does not contain such matter as is referred to above. In support of his application Pt. Kali Charan pleads:
(1) That he has taken his facts and material from authoritative Muslim literature and standard works on Islam and Mohammad by European as well as Indian writers.
(2) That by writing the book it was never his intention to promote or to attempt to promote feelings of enmity or hatred between different classes of His Majesty's subjects.
(3) That he wrote the book in a spirit of fair and honest criticizm without any malicious intention of producing hatred.
(4) That as a preacher of the Arya Samaj his propaganda is mainly confined to reclamation (Shudhi) of the Hindus from other religions and especially from Islam.
5. For these reasons he contends that the order of forfeiture is erroneous as the book does not offend against the law, and the question we have to decide is whether, for the reasons just stated, the order is liable to be set aside.
6. When the case was opened there was some discussion regarding the onus of proof it being contended on behalf of the applicant that it lay upon the Government to establish that the order complained of was justified by law. Speaking for myself I feel clear that this argument is not well founded in view of the language of Section 99-B. Where an application is made under that section to have an order of forfeiture set aside on the ground that the matter published does not far within the mischief of 3. 153-A, I. P. C., it is in my opinion for the applicant to convince the Court that for the reasons he gives the order is a wrong order.
7. For the purposes of this case the point is, perhaps, not one of practical importance and the Government advocate who appeared for the Crown undertook to support the order and did so. As, how ever, the question of onus was definitely raised I have thought it proper to express my opinion in the sense indicated above.
8. To pass on to an examination of the nature of the contents of the book: I Would refer in the first place to the title which it bears. The short title is 'Bichitra Jiwan' (strange or wonderful life)-a longer and alternative title, displayed on the front page is Mohammad Sahib he jiwan ki bichitra aur rahasya-mayi ghatnaen which may I think fairly be rendered in English by the expression 'Strange and Diverting Episodes in the Life of Mohammad Sahib' though the Hindi word rahasya may also be translated as 'private' or secret,' the fact being that the word rahas has a variety of meanings most of which, however, are associated with the notion of pleasure or merriment.
9. The book contains a preface (nivedan) in which the author sets out the occasion for his writing it. He relates that people who speak and read the Hindi language have hitherto had little or no opportunity of becoming acquainted with the religion of Islam and goes on to say that at a time when persons like Khwaja Hasan Nizami are laying themselves out by secret methods to entrap Hindus in the snare of Islam it is necessary that a book should be written in Hindi to teach Hindus something about the tenets of the Mahomedan religion.
10. This theme is further developed in the introductory chapter in which reference is made to attacks on the Hindu religion in lectures and in tracts written by certain named writers. These attacks, it is said, are made with the purpose
of insulting Hindu saints and sages and in order to create a general feeling of hatred against them.
11. The author makes mention of the writings of various 'degraded maulvis and ghazis' which traduce and vilify the Hindu divinities, and by way of reply to these he declares his purpose of presenting a picture of the life of Mohammad, a man in whom, as he says, millions of Muslims believe and whom they extol as an exemplar of virtue.
12. The writer undertakes to prove in his book that the Prophet was guilty of acts which no decent man could describe and to show that he was in fact a person of such abandoned and infamous character that
Mahomedans if they could only reflect calmly, must necessarily repent of their belief in him as a messenger from God.
It is declared that the author has support for all the statements he proposes to make in Mahomedan books which he cites as being of repute though he declines responsibility for 'any mistakes.' He protests moreover that whatever he may say he has no intention of wounding the feelings of Muslims.
13. The rest of the book is divided into twelve chapters the earlier portions purporting to describe the perverted morals of Arab society at the time of the appearance of the Prophet. Here reference is made to the general prevalence at that time of drunkenness, superstition, adultery, incest and bestiality and it is asserted that although the Prophet posed as a reformer of morals he became in fact 'a victim of all the vices just enumerated.'
14. When examined before us with reference to this particular passage the writer deposed that what he meant to convey by it was that while Mohammad professed to condemn these immoral practices he nevertheless sanctioned them in the law (shariat) which he promulgated for the guidance of Islam.
15. The later portions of the book are devoted to a narrative of incidents in the history of the life of the Prophet interspersed with caustic and provocative comment on the part of the author. Many of the passages here are difficult to describe temperately. They abound in vituperation and sarcasm expressed with the grossest obscenity which cannot fail to suggest that they were written deliberately for the purpose of holding up Mohammad to odium and derision so as to present him to the reader as a man wholly unworthy of the reverence of the millions who believe in him and in his doctrine.
16. In short, in these later chapters (and particularly in the 9th and 11th chapters which are flagrantly indecent) the author discharges the task he had set before himself in the introductory chapter namely that of portraying Mohammad as a person 'guilty', of acts which no decent man could describe.
17. After this survey of the contents and language of the book a word or two may properly be said about the circumstances in which it came to be published. It made its appearance in November 1923, and has run through three editions. The writer has admitted before us that some 6,000 copies of it have been given away or sold by way of propaganda in furtherance of the Shudhi movement. This movement was set on foot at or about the time this book was published and has for its principal object the reclamation from Islam of converts from Hinduism of whom there are many in the western districts of these Provinces. This campaign of reconversion started at a time of more than usual tension between the Hindu and Mahomedan communities and led to a counter-campaign on the part of the Mahomedans, It is a matter of notoriety that these movements have excited bitter animosity which has since expressed itself at frequent intervals in violent collisions between the followers of the two religions.
18. The book then made its appearance at a time of unsettlement and excitement and has been widely distributed since its publication. According to what was stated by the author in the witness box a second edition of 3,000 copies was printed and has been exhausted. A second edition copy before us shows that it was printed in February 1925.
19. It is said that it was written in the Hindi dialect and printed in the Devanagri character for the use of Rajput converts, but it clearly must have been intended for a wider circle, namely Hindus in general: that is clear from the language of the preface itself:
I wrote the books because I am a missionary of the Arya Samaj. I do Shudhi work in order to try to convert people to the Vedic religion and to prevent my people from becoming Muslims.
These are the words used by the writer in the course of his examination before us. The appeal is thus to Hindus as a class.
20. The question then is as to the intention of the writer. Has he by this book promoted or attempted to promote feelings of enmity or hatred between two Classes of His Majesty's subjects, the Hindus and the Musalmans.
21. The matter must be judged primarily by the language of the book itself though it is permissible to receive and consider external evidence either to prove or to rebut the meaning ascribed to it in the order of forfeiture.
22. If the language is of a nature calculated to produce or to promote dealings of enmity or hatred the writer must be presumed to intend that which his act was likely to produce. This was the principle laid down by Best, J. in Burdett's case 4 B. & A. 120. in dealing with a case of seditious libel and the same principle clearly applies to the case of a publication punishable under Section 153-A, I.P.C. Applying this test to the case before me Lean only say that in my opinion the natural, indeed the inevitable consequence of writing such as I find in this book is the between the followers of the Hindu and Mahomedan religions.
23. The learned Counsel for the applicant while admitting that the book must be painful to Mahomedans, insulting to their Prophet and their religion and frankly obscene in parts has contended (if I have understood him rightly) that his client as a missionary, zealous for his religion, was entitled to collect and place before Hindu all the materials to be found in this book in order to prevent their being attracted towards Islam. It is suggested that for a missionary in the exercise of his calling, it is legitimates to employ all means to excite hatred of a rival religion and that it is not to be inferred that because he does so he is necessarily attempting to engender hatred or enmity against the persons who profess it. And so it is argued here that because Pt. Kalicharan has written a violent abusive and obscene diatribe against Mohammad we ought not to conclude that there is any evidence of any attempt to stir up strife against the followers of the Prophet. That indeed is the plea of the pandit in his petition (see para. 8) with which may also be read the plea in para. 9 to the effect that the took was written
in a spirit of fair and honest criticism without any malicious intention of producing any malicious intention of producing any hatred.
24. As regards this last plea: I would only observe that I have failed to discover in the book any traces of 'fair and honest criticism.' On the centenary I can find nothing but obscene abuse.
25. I am not prepared to ascent to the proposition that their no limit to the license permitted to a missionary in the advocacy of the merits of his own religion, nor am I able to appreciate the distinction between an attack upon a system of religion in the abstract and one upon the people who believe in it. I do not think it is humanly possible to hold up to obloguy and derision a religious a belief without stirring up resentment and hatred on the part of those to accept it as their creed.
26. We have heard the evidence of one Abdul Majid to his one of the persons who complained to the Government against this publications. He has told us how the book first came to his notice and has described the excitement created in the principal mosque at Agra when a few extracts from the book were read out to the Muslim congregation on the last Friday of Ramzan. Abdul Majid Declares that if Government had would have felt impelled to murder the author. He further declared that but for restraint put upon them by one of their leaders his co-religionists would probably have joined in a massacre of Hindus. This indeed is strong language, but I have no reasons to suppose that it does more than express the vindictive feelings which were roused by the recital of passages from the book of Pt. Kalicharan and it is sufficiently plain that the argument that an attack upon a religion does not necessarily involve an attack upon its adherents possess no merit in the eyes of the Muslims of Agra.
27. It must of course be recognized that in countries there is religions freedom a certain latitude must of necessity be conceded in respect of the free expression of religious opinion to weather with a certain measure of liberty to criticize the religious beliefs of others, but it is contrary to all reason to imagine that liberty to criticize includes a licence to resort to the vile and abusing language which characterizes the book now before me.
28. I have sought, therefore, to judge the intention of the writer from his own declarations in the book, from the nature of the language he has used and from the circumstances in which the book was published and I can not entertain any doubt in spite of the author's protestation to the contrary, that the book was conceived and written with the deli9berate intention not only of exciting odium against the founder of the Mohomedan religion, but of promoting in Hindus feelings of hatred or enmity against their Muslim follow-subjects. I pay not attention to the plea that the statements contained in the book are supported by authority; in cases like these the truth of the language can neither be pleaded nor proved; it is immaterial. For these reasons I am opinion that this application should be rejected.
29. I agree. The question is as to what was the intention of the writer of the book. Did he promote or attempt to promote feelings of enmity or hatred between the Hindus and Mahomedans. The principle applying to case of seditious libel applies to the publication punishable under Section 153(a) I.P.C. I have carefully read the book from end to end I have no hesitation in holding that the author must be held to have written this book intending to promote feelings of hatred between the Hindus and the Mussalmans. The whole tenor of the book suggests to my mind that the object can be no other and I am not prepared to believe the statement of Kali Charan that he wrote the book as a missionary and in the exercise of a legitimate right to induce people to embrace Hinduism.
Walsh, Ag. C.J.
30. I agree. I agree also as to the procedure. I think that the explanation of Section 99D, Criminal P.C., is that it the High Court is left in doubt after hearing the application it should set aside the order, which may be said to be contrary to ordinary practice in an appeal in a civil suit.
31. The order of the Court is that this application is dismissed with costs including a fee of Rs. 300 to the Government advocate.