1. This revision has been referred to me under Section 429, Cr. p. C. in consequence of a difference of opinion between my Lord the Chief Justice and my learned brother Justice Das (as he then was) who first heard the revision as a Division Bench.
2. Petitioner No. 1 Narayan Das alias Madhusudan Das Babaji came to village Saradhapur in Bonai State, proclaimed himself to be the living God 'Anantakishore', called upon the villagers to worship him & succeeded in gathering a number of disciples around him who believe in his divinity. There was a girl named Bhanumati aged about fifteen years (P. W. 7.) daughter of one Rajib Lochan Mohanti of the village, The Babaji somehow induced a belief in the girl as well as in her father & some of the co-villagers that she was 'Anantakishori' and that none else but he was fit to wed her. In consequence of this belief the girl was in due course given in marriage to him by her father and for sometime the Babaji and his wife were looked upon as living God and Goddess. On the 17th of July 1950 which was the Ratha Jatra day some of the disciples of the Babaji placed him and his wife on a Bath and dragged it through the village. Some of the other villagers however on that day wanted to go to Bonaigarh to see the RathJatra of Lord Jagannath that was being celebrated there. The Babaji was said to have dissuaded them from going to Bonaigarh by saying that Jagannath was after all a piece of wood where as he (Babaji) was living God 'Nararupi Narayan' & that he should be worshipped. Petitioner No. 2 Dhaneswar Mahato who is said to be fantical disciple of the Babaji tried to re-enforce the argument of the Babaji by saying that the village Goddess 'Gramadevi' and the deity known as Baneswar were mere stone idols and that Dhaneswar could pass urine on them.
3. On these allegations the Babaji was prosecuted for three offences; firstly, for the offence of cheating under Section 417, I. P. C.; secondly, for the offence under Section 153, I. P. C. for organising Rath Jatra without a license and thirdly, for the offence under Section 298, I. P. C. for having deliberately wounded the religious feelings of the villagers by saying that Lord Jagannath was only a piece of wood. Petitioner Dhaneswar Mahanto was charged under Section 293, I. P. C. for having deliberately wounded the religious feelings of the people by saying that he could pass urine on the village Goddess 'Gramadevti' and Baneswar as they were stone idols. The Sub-divisional Magistrate of Bonai convicted the Babaji of all the three charges and sentenced him to six months rigorous imprisonment under each count. He convicted petitioner Dhaneswar under Section 298, I. P. C. and sentenced him to three months rigorous imprisonment and a fine of Rs. 50/-. On appeal, the learned Sessions Judge set aside the conviction under Section 153, I. P. C. of petitioner Narayan Das but maintained the conviction and sentence passed on both the petitioners in respect of the other offences.
4. When the revision petition was first heard by the Division Bench both the Hon'ble Judges agreed that the conviction under Section 417, I. P. C. could not stand. My learned brother Justice Das (as he then was) held that there was no evidence to show that any deception was practised by the Babaji and that the materials on record were consistent with the view that the Babaji honestly believed himself to be God incarnate. I would, with respect, agree with him and hold that the charge under Section 417, I. P. C. cannot stand in view of the unsatisfactory nature of the evidence to prove deception.
5. As regards the offence under Section 293. I. P. C., both the Hon'ble Judges agreed that the statements attributed to the two petitioners were, in fact, made by them on the date in question, They, however, differed on the question as to to whether the statements were made with the deliberate intention of wounding the religious feelings of the villagers.
6. Section 298, I.P.C., runs thus:
'298. 'Uttering words, etc., with deliberate intent to wound religious feelings' -- Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or With both.'
The essence of the offence consists in the 'deliberate intention' of wounding the religious feelings of other persons. A mere knowledge of the likelihood that the religious feeling of other persons may be wounded would not suffice nor a mere intention to wound such feelings would suffice unless that intention was deliberate. The authors of the Code who framed the section observed:
'.... We wish to allow all fair latitude to religious discussion, and at the same time to prevent the professors of any religion from offering, under the pretext of such discussion, intentional insults to what is held sacred by others.... A warm expression dropped in the heat of controversy, or an argument urged by a person, not for the purpose of insulting and annoying the professors of a different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause.'
7. Section 298, I. P, C., is one of the five sections (295 to 298) in Chapter XV of the Indian Penal Code dealing with offences relating to religion. It will be useful to compare the provisions in the other sections of that Chapter as regards the criminal intention or knowledge requisite for the commission of the offence. Section 295 deals with destruction, damage or defilement of a place of worship either with the 'intention' of insulting the religion of any class of persons or with 'knowledge' that such insult is likely to result. Section 295A which was inserted in the Penal Code by the amending Act of 1927 speaks of 'deliberate and malicious intention' of outraging the religious feelings of any class of persons. Section 296 refers to 'voluntary disturbance' of any religious assembly and the expression 'voluntarily' as defined in Section 39 would include either intention or knowledge. Similarly Section 297 refers both to intention and knowledge. It will thus be seen that while Sections 295, 296 and 297 require either guilty intention or guilty knowledge as specified in those sections, Sections 295A and 298 require 'deliberate intention.' Section 295A goes further and requires proof of malice also before conviction can be sustained under that section. As to what the Legislature meant by the words 'deliberate intention' occurring in Section 298 an indication may be found in the report of the Select Committee on whose recommendation Section 295A was inserted in the Indian Penal Code:
'that the insult to religion or the outrage to religious feelings must be the sole, or primary, or at least the deliberate and conscious intention. We have accordingly decided to adopt the phraseology of Section 298 which requires deliberate intention in order to constitute the offence with which it deals.'
Where the intention to wound was not conceived suddenly in the course of discussion, but premeditated, deliberate intention may be Inferred. Similarly, if the offending words were spoken without good faith by a person who entered into a discussion with the primary purpose of insulting the religious feelings of his listeners deliberate intention may be inferred. This aspect has been fully emphasised in the following passage taken from the authors of the Code who framed this section.
'If however a party were to force himself upon the attention of another, addressing to him, an involuntary hearer, an insulting incentive against, his religion, he would, we conceive, fall under the definition, for the reasonable inference from his conduct would be that he had a deliberate intention of wounding the religious feelings of his hearer.' (Ratanlal on The Law of Crimes, 17th edition, p. 682.)
8. The deliberate intention has undoubtedly to be inferred from the words spoken, the place where they were spoken and the persons to whom they were addressed & other surrounding circumstances. In this connection it will be useful to compare Section 298, I.P.C., with the English Law of blasphemous libel. In Russell in Crime at page 220, 10th edition, this offence was explained as follows:
'The wilful intention to insult and mislead others, by means of licentious and contumelious abuseoffered to sacred subjects or by wilful sophistry calculated to mislead the ignorant and unwary, is the criterion and test of guilt.'
The following observations of Phillimore, J., in 'REX v. BOULTER', (1908) 72 J P 188 have also been quoted at page 221 of that book:
'A man is free to speak and teach what he pleases as to religious matters, though not as to morals. He is free to teach what he likes as to religious matters even if it is unbelief. But when we come to consider whether he has exceeded the limits, we must not neglect to consider the place where he speaks, and the persons to whom he speaks. A man is not free in a public place where passers-by who might not willingly go to listen to him knowing what he was going to say might accidentally hear his words, or where young people might be present. A man is not free in such places to use coarse ridicule on subjects which are sacred to most people in the country.'
It is true that the offence of blasphemous libel in English law is not the same as the offence described in Section 298, I.P.C., but 'wilful intention' which is the essential ingredient of the former offence is almost synonymous with 'deliberate intention' required for the offence under Section 298, I.P.C., and in considering whether certain words were said with the deliberate intention of wounding the religious feelings of persons the observations of Phillimore, J., quoted above are, I think, very helpful.
9. In 'SINNASAMY SELVANAVAGAM V. THE KING', 1951 A C 83, the Privy Council reiterated the following well-known principle:
'..... intention, which is a state of mind, can never be proved as a fact: it can only be inferred from facts which are proved.'
They further pointed out that in doing a particular act a person may have more intentions than one and to hold him guilty of the intention required for a particular offence it must be further shown that the intention specified in that offence was the real or dominant intention. It is true that that decision was with reference to the construction of Section 427 of the Ceylon Penal Code which is very similar to Section 441 of the Indian Penal Code. But the observations of their Lordships as regards the necessity of proving the 'dominant intention' in the circumstances mentioned above apply with full force to the present case also where the Court has to infer deliberate intention from certain words spoken by the petitioner. It will be interesting to note that this emphasis on the dominant or primary intention was also made in the Select Committee's report while dealing with Section 295A already quoted.
10. The offending words were spoken on a Rath Jatra day in the village. The witnesses do not say clearly whether the words were spoken inside the Math of the Babaji or on the public road. But the place where the words were spoken can be easily inferred from the evidence of the witnesses. For instance, P. W. 1 stated that while he and some others were proceeding towards Baniagarh the Babaji and Dhaneswar Mahato spoke the offending words. The Babaji and his consort Bhanumati were seated on a Rath which was dragged by his disciples to the accompaniment of music. Similarly, P. W. 4 stated that when Dhaneswar made the offending remarks the Babaji and his consort sat on the Rath. As a Rath cannot be inside a private compound and as the words were spoken while some villagers were actually proceeding to Bonaigarh one can reasonably infer that the words were spoken on the village road. It is true that many disciples of the Babaji werethere. But the words appear to have been addressed not only to the disciples but to other people who were proceeding to Bonaigarh to see the Rath Jatra of Lord Jagannath there. The evidence of the witnesses as to what the Babaji said on that occasion may be summarised as follows:
P.W. 1. 'The Babaji asked all of us to worship him as God as he was able to speak, but that Jagannath was only a piece of wood.'
P.W. 2. 'On Ratha Jatra day there was car festival. Some disciples wanted to go to Bonaigarh to see Ratha Jatra. The accused Babaji wanted them, and others to worship him as he was a God and could speak and as there was no use worshipping an idol of wood.'
P.W. 3. 'On Ratha Jatra day in our village the Babaji organised a Rath. I was present. He said 'I am God. Don't go to worship an idol of wood. Worship me.'
11. The dominant intention of the Babaji was to induce a belief amongst his disciples and other persons that he was living God, that Lord Jagannath at Bonaigarh was merely a piece of wood and that they therefore should worship him instead of going to Bonaigarh to see the Hath Jatra there. It should be remembered that the Babaji had already induced a belief in the minds of several villagers that he was living God. He was undoubtedly free to preach about the divinity in him and to dissuade people from idol worship. His object in saying that Lord Jagannath at Bonaigarh was merely a piece of wood was to contrast his position as living God with that of the inanimate object at Bonaigarh in furtherance of his preaching against idol worship. The primary or dominant intention was therefore to emphasise his own divinity and not to deliberately wound the religious feelings of others by insulting Lord Jagannath. The fact that some of the villagers who had implicit faith in the divinity of Lord Jagannath were likely to be offended by his remarks may show knowledge on his part but is not sufficient to show that he had that intention, much less deliberate intention. I would, therefore, agree with my Lord Chief justice and acquit him of the offence under Section 298, I.P.C.
12. Petitioner Dhaneswar Mahata was one of the fanatical disciples of the Babaji. It seems that there is a deity 'Baneswar Mahadeb' at Bonoigarh and a village deity 'Gramdevta' in village Saradhapur. While the Babaji was persuading the villagers not to go to Bonaigarh to see Rath Jatra there this petitioner with a view to further impress the villagers stated that he could pass urine on the said deities. The words spoken to by him have been described by the witnesses as follows:
P.W. 1. 'There is my village deity and there is Baneswar Mahadeb at Bonaigarh. Accused Dhanu Mahanto said 'these are stone pieces and I can urinate on them.'
P.W. 2. 'Accused Dhanu once asked me to join his group as the real God was the accused Babaji. He also said I can make water on 'village deity and Baneswar.'
P.W. 4. 'Accused Dhaneswar informed us that only accused Babaji was the God and he could make water on Baneswar and village deity.'
Dhaneswar is a man of the village and he knew very well that the village deity and Baneswar Mahadeb were held in great reverence by some of his co-villagers. His dominant intention in saying that he could pass urine on them could not be anything else except to outrage their feelings and to administer such a rude shock that they would fall in line with him and join in the worship of the Babaji. As pointed out by Phillimore, J., in the case mentioned above, 'a man is not free touse coarse ridicule on subjects which are sacred to most people in the country. 'Dhaneswar knew that apart from the disciples of the Babaji many other villagers were standing on the road when his remarks were made. He also knew that it was the Rath Jatra day when many people including his co-villagers would usually proceed to Bonaigarh to see the Rath Jatra there. His remarks were made with premeditation with the primary object of re-enforcing the argument of the Babaji by using such an insulting expression while referring to the idols held sacred by the villagers. In his case, therefore, I am satisfied that the deliberate intention required for the purpose of Section 298, I.P.C., can be reasonably inferred.
13. I would, therefore, in agreement with my Lord the Chief Justice hold that Narayan Das alias Madhusudan Das Babaji is not guilty of the offence under Section 298, I.P.C. His conviction and sentence are set aside and he is directed to be set at liberty forthwith.
14. As regards the petitioner Dhaneswar Mahato, I would, in entire agreement with Hon'ble Mr. Justice Das (as he then was) hold him guilty of the offence under Section 298, I.P.C. The learned Magistrate has dealt with him somewhat leniently, because he was then under the influence of the Babaji and had become his ardent follower. I see no reason therefore to interfere with his sentence. His revision petition is rejected.