Patna High Court
The State Of Bihar vs Ghulam Sarwar And Anr. on 30 March, 1965
Equivalent citations: AIR1965PAT393, 1965CRILJ401, AIR 1965 PATNA 393, 1965 BLJR 613
JUDGMENT G.N. Prasad, J.
1. The State Government has preferred this appeal against the order of the learned Additional Sessions Judge of Patna, who has set aside the order of the learned Judicial Magistrate of Patna, convicting the two respondents under Section J53A, Indian Penal Code, and sentencing them to pay a fine of Rs. 200/- or to suffer rigorous imprisonment for two mouths each, in default. The first respondent is the Editor and the second respondent is the Printer and Publisher of a weekly Urdu newspaper called 'Sangam' published in Patna town.
2. It appears that in the said newspaper, an editorial article captioned "Khoda Khair" was published on the 9th May 1959. Upon a consideration of the said article, the State Government thought that it promoted or attempted to promote feelings of enmity or hatred between the Hindus and the Muslims, and as such its publication constituted an offence punishable under Section 153A of the Indian Penal Code. Accordingly, an order was passed on the 13th June 1959 authorising the Senior Superintendent of Police, Patna, to file a complaint for the prosecution of the two respondents.' In pursuance of this order, the Senior Superintendent of Police, Patna, filed a complaint before the Subdivisional Magistrate on the 17th June, 1959, whereupon cognizance was taken and the respondents were put on trial.
3. Upon a consideration of the offending article and the circumstances under which the respondents had published it, the learned Judicial Magistrate came to the conclusion that the respondents had attempted to promote feelings of hatred or enmity between the Hindus and the Muslims by publishing the same.
4. In appeal, however, the learned Additional Sessions Judge referred to the merits of the case only casually, but set aside the conviction of the respondents, on what he considered to be a fatal defect in the prosecution. The learned Judge took the view that under the provisions of Section 196 of the Code of Criminal Procedure, it was requisite that the prosecution should have been sanctioned by the State Government and that the order of the State Government dated the 13th June 1959, which has been brought on the record as Ext. 5, had not been proved in accordance with law and, therefore, the whole trial was rendered without jurisdiction, because on the record there was no sanction of the State Government which could be the basis of the jurisdiction of he Magistrate to take cognizance and to proceed with the trial of the case. That is how the State Government has brought this matter before this Court.
5. I must say at the outset that the reason given by the learned Additional Sessions Judge for setting aside the conviction of the respondents is not sound. Section 196 of the Code of Criminal Procedure is in the following terms:
"No Court shall take cognizance of any offence punishable under Section 153A .. unless upon complaint made by order of, or under authority from, the State Government or some officer em powered by the State Government in this behalf."
it is clear from the terms of this section that it does not contemplate any sanction of the State Govern ment. It only indicates as to who can file a com plaint in respect of an offence punishable under Section 153A, Indian Penal Code. The complaint has to be filed by order of, or under authority from, the the State Government or some officer empowered by the State Government in this behalf. The order (Ext. 5) recited that it had been passed under the order of the Government of Bihar and it was signed by a Deputy Secretary to Government in the Poli tical Department. Special section and was in the fol lowing terms:
"Whereas Shri Ghulam Sarwar son of Shri Fazal Hamid Hussain a resident of Dinapur, Patna, is the Editor and Shri Mohammad Naimuddin, son of Late Mohammad Ilias a resident of Mohalla Betwan Bazar, Monghyar, is the Printer and publisher of 'Sangam' an Urdu weekly newspaper published from Sangam Office, Dariyapur Patna-4 and the above named persons are responsible for editing, printing and publishing of an editorial under caption 'Khoda Khair' in the Sangam dated the 9th May, 1959, a cutting of which together with its English translation is annexed hereto.
And whereas the Governor of Bihar is satisfied that the aforesaid Shri Ghulam Sarwar and Shri Mohammad Naimuddin by the said editorial have promoted or attempted to promote feelings of enmity or hatted between the Hindus and the Muslims, and have thereby committed an offence punishable under Section 153A of the Indian Penal Code (XLV of 1860).
Now therefore, the Governor in exercrise of the powers conferred by Section 196 of the Cr. P. C. is hereby pleased to authorise tin Senior Superintendent of Police, Patna, to make a complaint against the aforesaid Shri Ghulam Sarwar and Shri Mohammad Naimuddin before a competent court.
By the order of the Governor of Bihar.
(Sd.) N. K. Prasad Deputy Secretary to Government."
In the Complaint petition, which the Senior Superintendent of Police had filed, he said:
"Whereas the State Government have accordingly authorised me to file a complaint under Section 153A of the I P. C. against the Editor, the Printer and Publisher, aforesaid.
Now, therefore, under the authority of the State Government I am filing this complaint against the aforesaid persons and request that you may be pleased to take cognizance of the case against them and put them on their trial.
I am herewith filing the written order of the State Government authorising me to file complaint and I am also filing the cutting of the article from the said issue of the said paper together with an English translation of the same which have been forwarded to me along with the written order authorising me to file the complaint.
An issue of the said 'Sangam' dated 9th May 1959 which has been procured subsequently is also attached herewith."
It is, therefore, abundantly clear that the complaint in question was filed in accordance with the provisions of Section 196, Code of Criminal Procedure, and upon such a complaint, tt was competent for the Subdivisional Magistrate to take cognizance of the offence said to have been committed by the respondents.
6. The learned Additional Sessions Judge, however, thought that the order (Ext 5) had not been proved in accordance with law because it could only have been proved by Shri N.K. Prasad, the Deputy Secretary who had signed it. But Shri N.K. Prasad was not called as a witness, and instead, only an assistant of the Political Department Lakshamanji Sahay (P. W. 4) was called to say that "This is typed order of the Government under the signature of Sri N.K. Prasad., I. A. S. I know his signature. The order is Ext. 5. Ext. 5/1 is the signature of Shri N.K. Prasad I. A. S." Commenting further, the learned Judge observed that "this file was not even sent to the Governor for sanction, although the order quoted would show that that was the order of the Governor. The clerk said that the Governor had authorised the Officers to sanction the prosecution but no officer came to say that sanction for prosecution had been accorded by the Government". Making further reference to the evidence of P. W. 4, the learned Judge observed:
"So this clerk had simply sent the file to his officer and he knew absolutely nothing whether Mr. N.K. Prasad examined the file or what he did to the file or what he wrote on the file and when, where and how Mr. N.K. Prasad signed the Government order "
Eventually, the learned Judge held:
"Thus no Government sanction, was legally proved in the case which means that there was no sanction of Government and the whole trial became without jurisdiction."
In my opinion, the entire approach of the learned Judge is wrong. It appears that the attention of the learned Judge was not drawn to Article 166 of the Constitution of India, Clause (1) of which provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor, Clause (2) of the same Article provides:
"Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor."
The attention of the learned Judge was also not drawn to Notification No. A-933 dated the 25th January 1952, issued by the Government of Bihar, Appointment Department, which is in the followmg terms:
"In exercise of the power conferred by Clause (2) of Article 166 of the Constitution of India, and in supersession of all previous rules made in this behalf, the Governor of Bihar is pleased to make the following rules:
(1) All orders or instruments made or executed by or on behalf of the Government of Bihar shall be expressed to be made or executed by or by order of the Governor of Bihar.
2. Save in cases where an officer has been specially empowered to sign an order or instrument of the Government of Bihar, every such order or instrument shall be signed by either a Secretary, a Joint Secretary, a Deputy Secretary, an Undersecretary, an Assistant Secretary, a Budget Officer to the Government of Bihar or the Estate Officer of P. W. D. and such signature shall be deemed to be the proper authentication of such orders or instruments.
Explanation--In this rule the reference to a Secretary, a Joint Secretary, a Deputy Secretary, an Under-secretary and an Assistant Secretary shall include respectively reference to an Additional Secretary, an Additional Joint Secretary, an Additional Deputy Secretary, an Additional Under-Secretary and an Additional Assistant Secretary.
By order of the Governor of Bihar, L. P. Singh, Chief Secretary to Government."
Reading Article 166 of the Constitution and the Notification referred to above, it is manifest that it was not necessary, as the learned Judge thinks, that the file should have been sent to the Governor for his sanction or order. The order (Ext. 5) had only to be issued in the name of the Governor of Bihar. As an order of the State Government, it had to be authenticated by some Officer of the Government of Bihar indicated in the second paragraph of the Notification dated the 25th January 1952, and upon such authentication, it became an executive order of the State Government expressed to be taken in the name of the Governor, the validity of which could not be called in question on the ground that it was not an order or instrument made or executed by the Governor. The evidence of P. W. 4, who knew the signature of the Deputy Secretary. Shri N.K. Prasad, was undoubtedly sufficient to prove that the order (Ext. 5) had been authenticated by a competent officer of the Government of Bihar in accordance with the notification of the 25th January 1952. It was not at all necessary that Shri N.K. Prasad should have personally come to prove his signature (Ext. 5/1) on the order (Ext. 5). The learned Judge is not right in thinking that the order of the State Government contained in Ext.5 could only be proved by Shri N.K. Prasad. No. doubt, under Section 67 of the Evidence Act, it had to be proved that Ext. 5 was signed by the Deputy Secretary to Government, but his signature, by reason of Section 47 of the Act, could be proved, as was done in this case, by the Assistant (P. W. 4), who was acquainted with the signature of Shri N.K. Prasad. Once Ext. 5 was proved to have been signed by a competent officer in terms of Notification No. A-933 referred to above, the document became a public document within the meaning of Clause (3) of Section 74(1) of the Evidence Act, and as such it could be tendered in evidence without having to call Shri N.K. Prasad to prove it. I am, therefore, of the opinion that the learned Judge was in error in holding that Ext. 5 was not proved in accordance with law or that no cognizance could be taken upon the complaint (Ext. 1) which was filed by the Senior Superintendent of Police in pursuance of the order of the State Government contained in Ext, 5. It follows that the trial was not without jurisdiction as held by the learned Judge.
7. In order to interfere with the order of acquittal passed by the learned Judge, it will, however, be necessary to determine whether an offence under Section 153A of the Penal Code was committed by the respondents by publication of the offending article. It is well established from a series of decisions of this Court as also of the Calcutta High Court that the mens rea of the authors is the main ingredient of the offence laid down in Section 153A. In Emperor v. Banomali Maharana, AIR 1943 Pat 382 the argument put forward on behalf of the prosecution was that in determining whether an offence has been committed under Section 153A, the Court must have regard to the probable effect of the writing, irrespective of the intention of the author. But the argument was not accepted by Meredith, J. who expressed the opinion that intention is the gist of the offence under that section. His Lordship further observed:
"I do not think this section was ever intended to apply to the case of the honest agitator, whose primary object is to secure redress of certain wrongs, real or fancied, and who is not actuated by the base mentality of a mere mischief monger. If the writer is expressing views which he holds honestfy, however wrong that may be, and has no malicious intention, I do not think he can be brought within the mischief of this section a section in which, as has been pointed out by the Privy Council in Annie Besant v Advocate General Madras, 46 Ind App 176: (AIR 1919 P. C. 31) the Legislature has preserved a delicate balance between the undesirability of anything tending to excite sedition or to excite strife bewteen classes, and the undesirability of preventing any bona fide argument for reform."
Then, after quoting a passage from the judgment of the Privy Council, his Lordship added:
"And so the Legislature in enacting Section 153A was careful to add the explanation, which makes plain that it does not amount to an offence within the meaning of the section to point out, without malicious intention and with an homest view to their removal matters which are producing or have a tendency to produce feelings of enmity or hatred between different classes of His Majesty's subjects."
Similar view was taken by a Bench of the Calcutta High Court in P.K. Chakravarty v. Emperor, AIR 1926 Cal 1133 wherein Rankin, J. (as he then was) made the following observation:
"It is settled law that Section 153A, I. P. C., does not mean that any person who publishes words that have a tendency to promote class hatred can be convicted under that section. The words 'promotes or attempts to promote feelings of enmity' are to be read as connoting a successful or unsuccessful attempt to promote feelings of enmity. It must be the purpose or part of the purpose of the accused to promote such feelings and, if it is no part of his purpose, the mere circumstance that these may be a tendency is not sufficient."
In support of his view that it is the real intention of the accused that is the test, his Lordship referred to several other previous decisions and added:
"I cannot assent to any doctrine of 'constructive intention such as the Magistrate has in this case adopted."
Then after referring to the explanation appended to Section 153A, his Lordship observed:
"Malice is not to bo imputed without definite and solid reason."
8. That intention of the author is the relevant consideration was also indicated by a Bench of this Court in Debi Soren v. State, AIR 1954 Pat 254.
9. The next question for consideration, however, is how the intention of the accused is to be gathered. That also has been amply indicated in the cases referred to above. In Banomali Maharana's case, AIR 1943 Pat 382 it was pointed out that in order to ascertain the intention of the accused, the offending article or the pamphlet must be read as a whole and that the circumstances attending the publication must also be taken into account. Similarly, in Debi Soren's case, AIR 1954 Pat 254 it was laid down:
"The first point is that the speeches made must be considered as a whole and in a fair, free and liberal spirit, not dwelling too much upon isolated passages or upon a strong expression used here and there; in other words, an attempt should be made to gather the general effect of the speeches as a whole. The second point is that the intention of the speaker in using the words complained of is relevant; but the intention must be gathered from the language used, as also from the whole of the circumstances in which the speeches were made, including the audience to whom they were addressed."
Rankin, J. also recognised in P. K. Chakravarty's case, AIR 1926 Cal 1133 that on the question of likelihood to promote ill-feeling, the facts and circumstances of the time must be taken into account and something must be known of the kind of people to whom the words are addressed. But "the internal evidence of the words used and the meaning of the words used will very generally be decisive of the question whether or not the Court is confronted with a successful or unsuccessful attempt to promote feelings of enmity. As they will be decisive in all cases where the intention is expressly declared: also if the words used naturally, clearly and indubitably have such a tendency, then it must be presumed that the publisher intended that which is the natural result of the words used: In re Amrita Bazar Patrika' Press Ltd., ILR 47 Cal 190: (AIR 1920 Cal 478) (SB). It is in the light of the aforesaid principles that we must examine the publication which is complained of in this case. It is true that Section 153A was amended by Act 41 of 1961 which came into force on the 12th September 1961, but we have to decide this case with reference to the section as it stood in 1959 when the offending article was published.
10. The article which is on the record as Ext 10 consists of six paragraphs. It was published on the eve of the Muslim festival 'Bakrid' which, as is well known, has been the occasion of communal strife on several occasions in the past. The respondents have started by saying that on such festive occasions in our country, loafers or mischief mongers and bad characters go about harassing innocent persons so that "Whether there be Dashra, Holi Ramnaumi, Basant Panchmi and Langot, the lives of the citizens of the secular Bharat are endangered and even if there be Bakrid, Moharrum or Chehallum the lives of the citizens of the peace loving democratic State of Bharat, (Up holder) of Panchshil and non-violence, are endangered".
In the second paragraph of the article, the respondents have elaborated their point of view with reference to certain earlier specific incidents, after referring to the fact that "After the Independence there have been scores of riots in our State of Bihar itself." Among such incidents, they have referred to certain actions of the Block Development Officer of Hussainabad Circle, and after mentioning that no effective action was taken against such michief-mongers they said "How is the sad plight of the 80 per cent population of Kishunganj and now how are the oppressed persons of Sitamarhi and Akhta passing their days uncared for?".
In the third paragraph, they have referred to the approach of the Bakrid with its attendant apprehension of trouble at the hands of similar mischief mongers. But at the same time they have expressed this satisfaction that a beginning has been made and the Government are taking strict measures for preserving law and order on the occasion of the Bakrid. Reference has been made to certain appeal made by Muslim leaders to Jawaharlal Nehru to exterminate and root-out communalism and to certain directions issued at the instance of the Congress President to remain alert on the occasion of Bakrid and crush mischief mongers. Then they have referred to some statements of Jaiparkash Narain as "very lucid, clear, farsighted and learned" and have said at the end of the said paragraph "Perhaps, this year there may be some improvement. 'Let us hope for the best.'"
11. The learned Standing Counsel has conceded that so far as the matter contained the first three paragraphs of the article are concerned, no objection could reasonably be taken on behalf of the State. The learned Standing Counsel, however, urged that the real objectionable part of the article is contained in paragraph 4. I, therefore, propose to quote that paragraph in full:
"I want to tell the Government when the Act for preservation of cattle has been passed, what is the hitch in enforcing it? The world knows that the Government of C. P., U. P., Bihar etc., have imposed restrictions on cowslaughter having respected the religious feelings of the majority community. The false show of preservation and improvement of cattle is known to all. Then, what is preventing the Government from enforcing the Act? On the one side the Government show to the world that they (Government) have not enforced it. On the other side the Government explain to the majority community that the law has been passed and the Governor's assent has been obtained. Thus, cir cumstances have been created to crush the minority.
The minority community thinks that it is within its legal right to slaughter and the majority community thinks that now, the Act has already been passed, the minority should be prevented from making slaughter. They feel not the least hesitation in cutting the throats of their brothers and sisters for cow slau ghter. They have always given preference to hu man lives over animal lives and they are still giving the same preference. Then, why are the Government preparing ground for our killing and destruction due to their negligence?"
The contention of the learned Standing Counsel is that the passages contained in the latter part of this paragraph reveal the intention of the respondents to promote feelings of enmity between the Hindus and the Muslims. I am, however, unable to accept the contention of the learned standing counsel, because reading paragraph 4 as a whole, it is manifest that what the respondents wanted to emphasize was what they thought to be the consequence of the delay in enforcing the Act which had been passed by the State Government for preservation of cattle and imposition of restrictions on cowslaughter. The respondents have said that on account of delay in enforcing the Act, ground is being prepared for sacrifice of human life which is receiving preference over sacrifice of animal life. It is not correct to say that the respondents have attempted to promote feelings of hatred or enmity between the Hindus and the Muslims. What they have clone is to emphasise their apprehension of danger facing the society on account of the delay in implementing the law concerning cowslaughter. It is clear that what the respondents wanted was that the Act should be enforced without furiher delay.
12. That the respondents were not actuated with the intention of promoting feelings of enmity or hatred between two communities is also apparent from what follows in paragraphs 5 and 6 of the article. In paragraph 5, they have exhorted the Muslims to be enterprising, to have patiencr and perseverance, not to lose heart, but to make every sacrifice for the progress of the country and maintenance of the peace. They have then referred to the message of Iduz-zoha in the following terms:
"Sacrifice your dearest things for the sake of God. God is with you as he was with Abraham. Muslims! if you could not achieve success in this world try to achieve success in the next world." In my opinion, it is difficult to imagine that the respondents had made any attempt to promote feelings of enmity or hatred between the Hindus and the Muslims. In the last paragraph of the article, the respondents have appealed to the Muslims to crush evil forces, with a warning that such people who did not spare the life of Gandhi and did not hesitate to plot against the life of Jawaharlal, were not expected to become their brothers. Then the respondents have expressed satisfaction at the fact that "Still, there are plenty of progressive and democratic elements. There is no dearth of the followers of Jawaharlal. Jaiparkash, and Vinoba Bhave". Saying this, the respondents have called upon the Muslims to "cast away the cloak of despondency and come out after tying shrouds round your head so that peace may be established in your country, non-violence may thrive, the flag of Panchshil may flow high, democracy may succeed, secularism may be saved and Asia may have a high position".
13. Thus having read the article as a whole, I am definitely of the opinion that the respondents were not at all actuated with the intention of promoting or attempting to promote feelings of enmity or hatred between the Hindus and the Muslims. They had only emphasised that there was a danger of good feelings between the two communities becoming strained by reason of the delay on the part of the State Government in enforcing the Preservation of Cattle Act. At the same time, they called upon the Muslims to be patient and to do everything possible for the maintenance of peace in the country. The call was only to crush the evil force of loafers and mischief mongers, which is not the same thing as indulging in violence against peace and law-abiding citizens belonging to the other community. It is quite true that this article was published on the eve of the Bakrid, but the whole tenor of the article leaves no room for doubt that it was not intended to arouse the communal passion of the Muslims. The respondents wanted the Muslims to celebrate their festival of Bakrid with due regard to the high ideals of sacrifice of Abraham so that "fire can be turned into blooming garden".
14. For the reasons which I have given above, I am unable to hold that the respondents have committed an offence under Section 153A of the Indian Penal Code. I do not agree with the view taken by the learned judicial Magistrate who has merely proceeded upon the effect which the article was likely to create in the mind of a common man or that the respondents have been very expressive in their attempt to arouse communal passion in the mind of the Muslims. It follows that the order of acquittal recorded by the learned Additional Sessions Judge must be upheld, though on a ground entirely different from that which he has given.
15. In the result, the appeal is dismissed.