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M.L.C. Gupta Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1936All314; 162Ind.Cas.507
AppellantM.L.C. Gupta
RespondentEmperor
Cases ReferredEmperor v. Kali Charan Sharma
Excerpt:
.....code (act v of 1898), are in public interest--words coming under section 153-a--intention to promote hatred, if should be established--origin of community sought to be traced--when amounts to offence under section 153-a. - - on the other hand the language clearly indicates that it is the applicant who has to make out a case in his favour. 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; if he had dealt' with the..........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 scops 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.....
Judgment:

Sulaiman, C.J.

1. This is an application by the author of a book called 'Jat Jati ke Mukammal Halat yani Jat Darpan, Part I,' under Section 99-B, Criminal Procedure Code, for an order to set aside the order passed by the Local Government under Section 99-A forfeiting to His Majesty all copies 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. Baijnath Kedia : AIR1925All195 , 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 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. Kali Charan Sharma : AIR1927All649 , 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 order8. These two views were sought to be reconciled in a third Full Bench of this Court, in R. Saigal v. Emperor : AIR1930All401 Cr, where it was held that the Bench were in complete agreement with the proposition laid down in Emperor v. Baijnath Kedia' s case : AIR1925All195 , 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. Kali Charan Sharma : AIR1927All649 .

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 scops 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. Emperrr : AIR1930All401 Cr 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. Emperor 54 C 59 : 97 Ind. Cas. 738 : A.I.R. 1926 Cal. 1133 : 27 Cr. L J 1151 : 44 C L J 172 : 30 C W N 953, at p. 64 page of 54 C.--[Ed.], 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.

4. Certain cases were relied upon which were cases of sedition. That case, however, arose out of proceedings under Section 108, Criminal Procedure Code, where the word 'intentionally' has been deliberately introduced by the legislature. In lshwari Prasad Sharma v. Emperor : AIR1927Cal747 , another Bench of the Calcutta High Court, although it came to the conclusion that a, certain scene in a drama deserved the condemnation of all right-thinking men, and if those expressions had stood by themselves and if the article were confined only to that scene they would have had no difficulty in holding that the article came within the purview of Section 153-A, remarked that the intention of the writer had to be judged not only from the words used in the article but from the article as a whole; and they held that it was not proved that the intention of the writer was to promote feelings of enmity or hatred. The earlier Calcutta High Court cases seem to have been followed in Lajpat Rai v. Emperor 9 L 663 : 111 Ind. Cas. 659 : A.I.R. 1928 Lah. 245 : 9 Cr. L J 899 : 29 P L R 385, where it was held that:

The Crown had to establish that the writer of the Work had been actuated by the malicious intent which it is necessary to prove by extrinsic evidence, or to infer from the nature of the work itself.

5. On the other hand the Full Bench in Emperor v. Kali Charan Sharma : AIR1927All649 , when considering the question as to the intention of the writer remarked:

If the language is of a nature calculated to produce or promote feelings of enmity or hatred, the writer must be presumed to intend that which his act was likely to produce.

6. It seems to me that it would be interpolating the words 'with intent to' in Section 153-A if one were to hold that the intention of the writer to promote hatred, etc., must be established. The section merely says:

Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, promotes, or attempts to promote feelings of enmity or hatred, etc.

7. It does not say 'intentionally promotes feelings of enmity, etc.' The language of this stands in clear contrast to that of Section 499 where it is provided that:

Whoever by words either spoken or intended to be read, or by signs or visible representations, makes or publishes any imputation concerning any person intending to harm, etc.

8. It would, therefore seem to follow that the Legislature contemplates that the words spoken or written, which do promote hatred, etc., would create sufficient mischief so as to fall within the scope of the section, and that it is not necessary for the prosecution further to establish that the writer had the intention to promote such hatred. Even if a question of intention were to arise, such intention must be gathered from the words spoken or written and they themselves would be conclusive, and it would not be necessary for the prosecution further to prove that such an intention was behind the use of such words. Coming to the facts of this case, there is no doubt that one of the principal objects of the author was to establish that the Jats are not one of the twice-born classes and are not entitled to wear janaiu, and pass as kshatryas, which according to him they now claim to be. In this connection the author has attempted to trace the previous history of the community, and their ethnical origin and has quoted profusely from previous histories and other books trying to show that Jats could not belong to the upper classes. If he had dealt' with the subject from a purely scientific or historical point of view avoiding all offensive and abusive language, then even if he was wrong in his conclusion the passages might not be open to objection. Again, even if in support of his theory he were merely relying on certain customs, habits, and practices: prevailing among the Jats which are contrary to 'the practices accepted by the twice-born classes, lie may still not be guilty of an offence under Section 153-A. But where the author of a book goes beyond this and generalises his remarks so as to make them apply to the entire community, and characterises them as low class people and belonging to the criminal classes who are guilty of offences and immoral acts, the book ceases to be a purely historical one and is bound to promote feelings of hatred and enmity between the two classes which are compared.

9. It is true that in this book the author has not attempted to offend the religious susceptibilities of the Jat community as presumably he assumes that Jats are Hindus. He has, of course, not attacked their religion. Where a person attacks another religion, or the founder of such religion, there is bound to be a considerable resentment in the community whose religion is attacked, leading to hatred against the community to which the writer belongs. In such cases the offence may well fall within the scope of Section 153-A. All doubt on that point has now been removed by the amendment of Section 295-A, Indian Penal Code, under which insults, or attempts to insult the religion or religious beliefs of a class are made punishable. But where the origin of community is sought to be traced, then so long as there is adherence to the historical part of the narrative, however unpalatable it may be to the members of that community, there may be no offence, but on the other hand where the author uses language which shows malice and is bound to annoy the members of the community, the origin of which he is going to trace, and uses remarks which apply to all the present members of that community so as to degrade them in the eyes of the other classes, he would, in my opinion, be promoting feelings of enmity or hatred between that community and the members of his own community who, he intends, should entertain a low and poor opinion of that community, and regard them as belonging to the low castes. It would not be proper to quote passages from the book of the author, but there is no doubt that there are several passages even in the portions which have been translated and printed that are wholly obnoxious and highly objectionable, and are intended to attribute to the entire Jat community certain immoral practices and habits which are probably untrue, and which would be highly resented by the Jats.

10. The generalisation of remarks on the basis of a few instances, and the characterisation of an entire community as possessing certain views are certainly objectionable. I am, therefore, of the opinion that the applicant has entirely failed to show that the book did not contain matters which promoted feelings of enmity and hatred between different classes. In this connection I would like to add that in Section 99-A the words 'or is intended to' have been added which do not find place in Section 153-A-, Indian Penal Code. The language of the amendment is unhappy and might, at first sight, suggest that a case falling under Section 99-A must in every case fulfil the requirements of Section 153-A. The scope of Section 99-A is wider than that of Section 153-A because ''intention' falls short of ''attempt' and has in addition been made an alternative ground. It seems to me that what was intended was that where the words written or spoken do attempt to promote feelings of enmity, hatred, etc., and therefore fall under Section 153-A, action can be taken by the Local Government where, although there has yet been no occasion for the promotion of any feelings of enmity and hatred and there may have been no attempt yet made to promote such feelings, but the words are intended to promote such feelings. The Local Government may intervene at an early stage as a preventive measure and may stop the actual promotion of hatred, etc. I would, therefore, dismiss this application.

Niamat Ullah, J.

11. I concur.

Thom, J.

12. I concur. This Court is entitled to set aside the order of the Local Government only if it is not satisfied that Mr. Gupta's book does contain obnoxious matter within the meaning of Section 99-A. Now it appears to me perfectly plain that Mr. Gupta's book does contain many passages which must be regarded by the Jat community as obnoxious and offensive and which are likely to result in feelings of hatred and enmity between the Jats and other sections of the community. I would only add on the question of intention, that when the Government acts under Section 99-A and suppresses a publication, it does so in the public interest and it is not concerned with the intention of the author of the publication. The powers given to the Government by Section 99-A were clearly for the purpose of enabling the Government to take steps to avoid trouble which such publication might possibly cause. It is true that there is a reference under Section 99-A to the provisions of Section 153-A. Indian Penal Code. In this latter section, however, there is no specific mention of the intention of the author of the publication. Had the legislature intended that the prosecution must prove in proceedings under this section that the publication was made with the deliberate intent to promote feelings of enmity or hatred between different classes, specific provision would have been made therein. There being no reference in Section 153-A to the intention of the author of the publication, it clearly follows that the general presumption, that a man must be held to intend the natural consequences of his act, applies. I agree in dismissing this application.


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