1. This is an appln by Praml Khem Raj, Advocate the editor of 'Congress Ka Khuni Itihas', under Section 99 B of the Cr.P.C. The circumstances giving rise to it are as follows:
2. Premi KhemraJ (who will hereinafter be referred to as the author in this judgment) edited a booklet named 'Congress Ka Khuni Itihas in the year 1946 & it was published by Hindu Pustak Bhandar, Jaipur, in December, 1946. The then Govt of Jaipur by its order No. 8984/MB, dated 9-7-1948, published in the Jaipur Gazette dated 1-8-1948, proscribed the said booklet as well as another booklet, Punjab Men Pakistani Gundashahi' edited by Gulab Chand Kala, which was also published by Hindu Pustak Bhandar, Jaipur. The order runs as follows:
''Congress Ka Khuni Itihas'
'Punjab Men Pakistani Gundashahi'
Whereas the Govt of Jaipur are satisfied that the circulation within the State of the marginally noted booklet is likely to be prejudicial to communal harmony & consequently to the maintenance of public peace & order In the State, & whereas the Govt of Jaipur for the aforesaid consideration deem it necessary to prohibit the purchase, transfer, sale, or otherwise possession of the said booklet in the State, it is hereby ordered that under Section 99 A, Cr. P. C. 1943, the purchase, transfer, sale or otherwise possession of the said booklet is banned with immediate effect in the Jaipur State territory, excluding Sambhar Shamlat area.
3. The present application relates only to Congress Ka Khuni Itihas', & the author has prayed for the cancellation of the order of proscription relating to this booklet on the ground that there was no such matter in it as was likely to be prejudicial to the communal harmony & consequently to the maintenance of public peace & order in the State as apprehended by the Govt of Jaipur. It was alleged the proscription was made in pursuance of the general all India wise policy of the Congress Govt of suppressing all other political thoughts & thinking of the country except that of Congress & that too by the Congress men.
4. A notice was issued to the Chief Secretary to the Govt of Jaipur & the said Govt having been replaced by the Govt of Rajasthan, the appln has been contested by the present Govt of Rajasthan.
5. It has been argued on behalf of the author in the first instance that the order of proscription is bad inasmuch as none of the conditions for proscription given under Section 99 A are mentioned therein, & the grounds of the Govt's opinion as required by Section 99 A (1) have also not been given. It has also been contended that the book merely records historical facts & it neither promotes nor was intended to promote feelings of enmity or hatred between different classes of His Majesty's subjects.
6. On behalf of the State the learned Govt Advocate has argued that this Ct is not authorised under the present proceedings, to take into account the fact that the conditions given under Section 99 A are not specifically mentioned in the order of proscription or that the Govt have not stated the grounds of their opinion therein. He has argued that the only grounds, on which this Ct can set aside the order of proscription, are given under Section 99 D which runs as follows:
'On receipt of the appln, a Special Bench shall, if it is not satisfied that the issue of the newspaper or the book, or other document, in respect of which the appln has been made, contained seditious or other matter of such a nature as is referred to in Sub-section (1) of Section 99 A, set aside the order of forfeiture.'
7. It has been argued that the Ct shall be justified in setting aside the order of proscription only when it was not satisfied that the book contained such matters as are referred to in Section 99 A. These are seditious matters or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of His Majesty's subjects, or which is deliberately & maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter, the publication of which is punishable under Section 124 A or Section 253A or Section 295A, I. P. C. Reliance has been placed upon a ruling reported in Baijnath v. Emperor', AIR (12) 1925 All 195: (26 CrLJ 679 FB) in support of this view. It has further been argued that although the order is not couched in the exact language of Section 99 A, yet by the words, which are incorporated therein, it is clear that it promotes & is intended to promote feelings of enmity & hatred between the Hindus & Mohammadans.
8. Again on the merits we have been referred to 12 extracts from the book which find place on pp. 11, 15, 17, 20, 35, 42, 45, 58, 60, 63, 64 & 65 thereof. It has been argued that these extracts clearly promote and were intended to promote feelings of enmity or hatred between Hindus & Mohammadans.
9. Taking up the argument of the learned counsel for the author that the order is defective inasmuch as it does not contain such reasons for proscription which are given under Section 99 A, & does not state the grounds of the Govt's opinion, as laid down by Section 99 A, it can be said that the language employed is certainly not that which is required by the Section. It is also clear that no grounds of the Govt's opinion have been given in the order. However: on a careful reading of Sections 99 A to 99 G, it is clear that the only grounds on which this ct. can set aside the order of proscription, are those R given in Section 99 D. It was held by Mears C. J.& Piggot & Mukerji JJ., in the case 'Baijnath. Kadia v. Emperor', AIR (12) 1925 All 195: (26 CrLJ 679 PB), cited by the learned Govt Advocate that
'When an appln is made to the H. C. under Section 99 B in respect of a document, the H. C. is precluded by Section 99 D from considering any other point than the question whether, in fact, the matters contained in the document were seditious or not & came within the mischief aimed at by Section 124A.'
It was held in that case that the absence of the grounds of the Govt's opinion, as required by Section 99 A, does not entitle the H. C. to set aside the order of proscription. When Section 99 A & other connected sections were enacted in 1922, the only ground, on which a document could be proscribed, was that it contained seditious matter & so the order of proscription in the case referred to was on the ground that the document in question contained seditious matter & the appln for setting aside the order of proscription was made upon the ground that there was no seditious matter in the book & therefore their Lordships held that the only thing that they had to consider was whether the book contained such matter. Now the scope of Section 99 A has been enlarged by the amendments of 1926 & 1927 so as to include matters punishable under Sections 153A & 295A, I. P. C. also. In the present case, the author has made the appln on the ground that the booklet does not contain any seditious or other matter of such a. nature as is referred to in Sub-section (1) of Section 99 A of Jaipur Cr. P. C. & this Bench is, therefore, entitled to set aside the order of proscription, only if it is not satisfied that the booklet contains any such matter.
10. The learned counsel for the author cited 'Mohammad Ali v. Emperor', AIR (1) 1914 Cal 242 : (14 Cr L J 497 -S B) in support of his argument that if the grounds of the Govt's opinion, as required by Section 99 A, are not given in the order of proscription, the order should be set aside. The ruling does not relate to Section 99 D, Cr. P. C, as Sections 99 A, 99 B, 99 C, 99 D & other Sections up to 99 G were not enacted when that decision was given, but were incorporated in the Cr. P. C. in the year 1922 by the Press Law Repeal & Amendment Act XIV (14) of 1922. The ruling relates to the provisions of the Press Act I (1) of 1910, wherein no provision similar to that of Section 99 D appears to have been made. But even in that case the appln for cancelling the order of proscription was not allowed on the technical ground of the absence of the grounds of the Govt's opinion, but was dismissed on merits. The ruling, therefore, does not help the author.
11. Coming to the merits of the case, I have read not only the extracts quoted by the learned Govt Advocate, but the entire book, because isolated pieces, unless they are read in their contexts, cannot give a clear impression as to what feelings they were likely to create. The Book is divided into four parts or chapters. The first is intituled 'Congress Ka Khuni Itihas' (Bloody history of Congress), the second 'Hindu Janta Sarvanash' (Utter Destruction of Hindu Community) the third 'Hyderabad & Congress', & the fourth 'Shri Bhulabhai Ke Hatyare'. The first part gives the history of the Congress upto the non-co-operation movement started by Mahatma Gandhi in the year 1920. In the second part the author criticises the language policy of the Hindustani Talimi Sangh of Wardha. In the third part he criticises the Nizam Govt of Hyderabad & describes the atrocities against the Hindus which were being perpetrated under that regime. Towards the end he criticises the Congress for not raising its little finger against the said regime & for not supporting the agitation going on against it, lest this action might be considered to be communal. In the fourth part he describes an interview of Dr. Khare with Shri Bhullabhai Desai some time before the latter's death & holds the Congress & Mahatma Gandhi responsible for his death by giving him acute mental agony. So far as the headings of these parts are concerned, it might be said that they by themselves do not promote any enmity or hatred in the minds of the Hindus against the Muslims, but in the first three parts the author has employed language in more than one place & has narrated such incidents that they cannot fail to incense the Hindus against the Muslims. It would not be proper for me to give a literal translation of the passages which create such feelings, & on which reliance has been placed by the learned Govt Advocate to support the order of proscription. Suffice it to say that in criticising the Congress & Mahatma Gandhi in the language which is certainly very abusive & villifying, the author has not hesitated to spit venom against the Muslims of India. In the first part the policy of Hindu Muslim Unity has been described to be a venomous tree planted by Mahatma Gandhi. It has been stated the as a result of that policy, although Hindus began to give shelter to the Muslims in their houses, the latter began to kidnap Hindu girls. The attitude of the Hindus towards Muslims has been contrasted with the attitude of the latter towards the former. Whereas, according to the author, the Hindus began to look upon the Muslims as their brothers, the latter began to make themselves their sons in-law. A simple incident of the marriage of Mr. Asaf All with Sm. Aruna Gangoli has been described in the manner as to arouse the indignation of Hindu masses against the Muslims. The author proceeds to describe the Moplah rebellion of 1920 & in dealing with that event, long past & buried, he gives very harrowing details. Forcible conversion of thousands of Hindus & misbehaviour of Muslims towards thousands of Hindu women have been alluded to. Mahatma Gandhi has been criticised for laying emphasis on Hindu Muslim unity in the face of such events. Again dealing with Hyderabad, the author has described many events in a way which cannot fail to treat great hatred in the minds of the Hindus against the Muslims. Even the allegations about those matters in which the Hindu mind is greatly sensitive & which are likely to make the blood of an average Hindu boil have not been spared & have been brought out into relief on p. 45. The author has repeated the allegations against the Muslims of various places of misbehaving with Hindu women in more than one place, & has attempted to show that the Muslims as a whole were very undesirable persons. He has not spared even the men like Maulana Abul Kalam Azad & Hakim Ajmal Khan from attacks. The booklet is very much like a drain Inspector's report, in which the worst sins, real or supposed, of certain Indian Muslims have been given great prominence & not a single good word has been said in favour of any member of that community. It is a cheap edition couched in a language which might easily be understood by Hindu masses, for whom it was presumably meant. The language which has been used & the events which have been narrated cannot fail to inflame such Hindu masses against Muslims.
12. The learned counsel for the author was fair enough to concede that certain portions of the booklet contained objectionable & abusive matter, but argued that the Govt has not been able to show what untoward events followed the publication of the booklet, nor has it been able to show what was the condition obtaining in Jaipur at the time when the booklet was published or when it was proscribed. True, no evidence has been produced by either side to show what were the relations between the Hindus & the Muslims in Jaipur at either of these two times but it is not necessary to look for any external evidence when the words used are such as have a clear tendency to promote class hatred. It was further argued that it was not the intention of the author to create any feelings of enmity or hatred between the two communities. It was held in 'M. L. C. Gupta v. Emperor', AIR (23) 1936 AH 314: (37 OrLJ 599 SB) 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 Section 153A, Penal Code & 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, & they themselves would be conclusive & it would not be necessary for the prosecution further to prove that such an intention was behind the use of such words. Similarly in 'Chamupati v. Emperor', AIR (19) 1932 Lah 99: (34 CrLJ 473 SB), it was held that where the words naturally, clearly & indubitably have an intention to promote enmity between classes, it must be presumed that the writer intended the natural result of the words employed. It is Immaterial whether the statements were supported by authority. In 'Emperor v. Kalicharan', AIR (12) 1925 All 195: (26 CrLJ 679 PB) it was held that a violently abusive & obscene diatribe against the founder or prophet of a religion or against the system of a religion may amount to attempt to stir up enmity or hatred against persons who profess that religion. It did not matter that the statements in the book were supported by authority; in such a case the truth of the language could neither be pleaded nor proved.
13. The learned counsel for the author has further argued that the order of proscription can be maintained only if it was proved that its publication resulted in communal enmity or hatred between the two communities. The word, 'promote', however, means to further, to encourage, to advance, to excite & also to urge on, or incite another, as to strife. The only thing, therefore, that we have to see is whether the words used encourage hatred & enmity between two communities or excite one community against another. It is (not?) necessary to find that they actually brought about enmity & hatred between the two communities. It has been found above that several parts of the booklet are such as to encourage feelings of hatred & enmity between Hindus & Muslims, & incite the former against the latter. '
14. From the wordings of Sections 99 B & 99 D, it is clear that the burden of proof that the words used by him did not promote enmity or hatred between two classes was upon the author. Support is lent to this view by ruling of Allahabad H. C. reported in 'M. L. C. Gupta v. Emperor', AIR (23) 1936 All 314: 137 CrLJ 599 SB). The words being clearly such as to have a tendency to promote hatred & enmity between two classes, it was for the author to show what were the special circumstances obtaining at the time when the booklet was published or when it was forfeited which would take the sting out of the objectionable matter contained therein. He has, however, not made any attempt to put in any such evidence. Under these circumstances, it is difficult to hold that I am not satisfied that the words promote feelings of enmity or hatred between the Hindus & the Muslims.
15. It was finally argued that even the Govt did not consider that the booklet contained any matter which created enmity or hatred between the two communities, & consequently used the words 'prejudicial to communal harmony' in the order. It was contended that every matter which was prejudicial to communal harmony could not necessarily promote hatred & enmity between two communities. The relations between two individuals or communities may not be harmonious, yet there may not be enmity or hatred between them. It is true the words 'promote or intended to promote enmity or hatred' do not find place in the order but the words 'prejudicial to communal harmony & consequently to the maintenance of public peace or order' signify that the Govt was conscious that the booklet contained matter which promoted feelings of enmity & hatred between the two comtnunities. At any rate the words used in the order are not inconsistent with the words used in Section 99 A & when the Ct is satisfied on a perusal of the booklet that it contains matter which promotes enmity or hatred between the two communities the order of proscription cannot be set aside on the technical ground that the very words which are; used in the section are nor used in the order.
16. On the day when the judgment was to be delivered the learned counsel for the author put in an appln that Section 99 A was repugnant to Section 19, Const Ind which came into force on 26-1-1950, & therefore the order of proscription should be set aside. He was allowed to argue on this point as well & the learned Govt Advocate was heard in reply. It was conceded by the learned counsel for the author that the order of proscription was made long before the Constitution came into force & Section 19 of the Constitution has no retrospective effect. The order was, therefore, perfectly valid when it was made, if the booklet promoted feelings of enmity between the Hindus & the Muslims. Under these circumstances, the order cannot be interfered with by virtue of Article 19, Const Ind.
17. The appln has no force & it is dismissed.
18. I agree.
Nawal Kishore, C.J.
19. I also agree.