Full Judgment Text
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CASE NO.:
Appeal (crl.) 491 of 2007
PETITIONER:
Manzar Sayeed Khan
RESPONDENT:
State of Maharashtra & Anr
DATE OF JUDGMENT: 05/04/2007
BENCH:
K. G. Balakrishnan, Lokeshwar Singh Panta & D. K. Jain
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 491 OF 2007
(Arising out of S.L.P. (Crl.) No. 2373 OF 2004)
W I T H
CRIMINAL APPEAL NO. 496 OF 2007
(Arising out of S.L.P. (Crl.) No. 2512 OF 2004
Vinod Hansraj Goyal ..... Appellant
Versus
State of Maharashtra ..... Respondent
Lokeshwar Singh Panta, J.
Leave granted.
Manzar Sayeed Khan and Vinod Hansraj Goyal have filed
these two appeals against the common order dated 06.05.2004
of a Division Bench of the High Court of Judicature at Bombay
in Criminal Writ Petition No.280 of 2004 and 370 of 2004. By
the impugned order, the High Court vacated the interim order
granted on 23.02.2004 and directed the Crime Branch of the
State of Maharashtra to complete the investigation in FIR
No.10 of 2004 registered at the Deccan Police Station, Pune,
against the appellants and author of the book titled "Shivaji \026
Hindu King in Islamic India" under Sections 153, 153A and 34
of the Indian Penal Code [for short ‘IPC’].
The brief facts in both these appeals are practically
identical.
Manzar Sayeed Khan, appellant herein, is a constituted
Attorney of the Oxford University Press India, having been
appointed on 21.06.2001 for a period of three years or for so
long as he is employed as the Managing Director of the Oxford
University Press India, which is a department of the University
of Oxford, a legal entity with charitable status. It furthers the
University’s objective of excellence in research, scholarship
and education, by publishing worldwide in Oxford, New York,
Auckland, Bangkok, Buenos Aires, Cape Town, Chennai, Dar-
es-Salaam, Delhi, Hong Kong, Istanbul, Karachi, Kolkata,
Kuala Lumpur, Madrid, Melbourne, Mexico City, Mumbai,
Nairobi, Sao Paulo, Shanghai, Taipei, Tokyo, Toronto, etc. The
Oxford University Press India entered into an agreement for
five years with the Oxford University Press, USA, for
publishing in India a paper bound book entitled "Shivaji :
Hindu King in Islamic India" authored by Prof. James W. Laine,
a Professor of Religious Studies, Macalester College, USA, on
28.05.2003. The said book was originally published by the
Oxford University Press Inc., USA. As per the terms of the
agreement, the Oxford University Press, India agreed to reprint
the book without any changes or deletions. In all, 803 copies
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of the book were published, i.e., 488 copies in June and 315
copies in October 2003. The book was released in July 2003.
215 copies had been sold in July, 25 copies in August, 29
copies in September, 52 copies in October and 19 copies in
November from the records available from the States of
Maharashtra, Gujarat and Karnataka.
The Oxford University Press, India and the appellants
had received a letter on 10.11.2003 from four Historians
whereby the publisher and the author had been asked to
retract the objectionable statement complained of and tender
an apology. The Oxford University Press, India through
appellant- Manzar Sayeed Khan, expressed regrets for the said
statement and informed the objectors that instructions had
been issued to all its offices in India to immediately withdraw
all copies of the book from circulation. The copies of the
letters dated 10.11.2003 and 21.11.2003 are annexed with the
appeals and marked as Annexure P-3(Colly.). It is the case of
the appellants that sometime after withdrawal of the book
from circulation, the appellants learnt that a mob at Pune had
blackened the face of a Sanskrit Scholar, Shri Shashikant
Bahulkar whose name appeared in the acknowledgement of
the book, having helped the author Prof. James W. Laine, by
providing him with some information during his visit to Pune.
This incident was widely reported in the press. Prof. James W.
Laine was pained by the unforeseen incident. On 28.12.2003,
he sent a fax apologizing for the mistake, if any, committed in
writing the passage and further stated that he only was
responsible for the said statement written in the book, and the
publisher was not at all responsible for the same. On
05.01.2004, a mob of 100 to 125 persons allegedly belonging
to the Shambhaji Brigade ransacked the Bhandarkar Oriental
Research Institute (BORI), Pune, and destroyed 18,000 books
and 30,000 rare manuscripts. This incident was also widely
reported in the press.
Prof. James W. Laine had given an interview to the ’Mid-
Day’ (Newspaper) on 07.01.2004 and had explained the reason
for writing the book and expressed deep anguish at the
destruction of books and rare manuscripts in BORI, Pune.
Four days after the alleged incident, the State of Maharashtra,
respondent herein, registered a First Information Report No.
10 of 2004 at the Deccan Police Station, Pune, on 09.01.2004
against the author Prof. James W. Laine and the appellants
herein - the publisher and the printer of the book, under
sections 153, 153A and 34 of the IPC. During the course of
the investigation of the case, a Senior Police Inspector, Deccan
Police Station, Pune, sent a communication dated 12.01.2004
[Annexure P-6(Colly.)] to the Manager, Oxford University Press,
Vijaynagar, Pune with a copy endorsed to Managing Director,
Oxford University Press, New Delhi asking for a copy of the
book since no copy of the book was available in the market. In
response to the said letter, the Manager, Oxford University
Press, Pune vide letter dated 14.01.2004 (Annexure P-6) had
sent one copy of the book to the Senior Police Inspector,
Deccan Police Station, Pune. Thereafter, the Maratha Vikas
Sangh filed a Public Interest Litigation (PIL) in the Bombay
High Court demanding action to be taken for extradition of
Prof. James W. Laine and some coercive action against the
publisher etc., of the book. A team of Policemen had arrested
Vinod Hansraj Goyal, appellant, a partner of the Rashtriya
Printing Press, Shahdara, Delhi, for having printed the book.
He was granted 6 days transit remand by Metropolitan
Magistrate, Court No. 35, Shahdara, Delhi (now Karkardoma
Court). When the appellant-Manzar Sayeed Khan came to
know about the arrest of Vinod Hansraj Goyal, he filed an
application for grant of an anticipatory bail in the High Court
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of Judicature, at Bombay. On 03.02.2004, the High Court
granted 2 weeks’ time to the appellant to approach the
concerned court for appropriate relief.
Both the appellants filed separate Criminal Writ Petition
Nos. 280 of 2004 and 370 of 2004 in the High Court of
Judicature, at Bombay, praying inter alia for quashing the
investigation in FIR No. 10 of 2004 lodged at the Deccan Police
Station, Pune, and summoning of the records and proceedings
before the Court of Magistrate and quashing the same.
The High Court issued a notice to the State of
Maharashtra on 14.02.2004 and the matter was adjourned to
23.02.2004 directing the State not to arrest the appellant
Manzar Sayeed Khan. On 23.02.2004, no reply was filed by
the State and after hearing the learned counsel for the parties,
a Division Bench of the High Court was pleased to issue rule
returnable within 4 weeks and stayed all the proceedings in
FIR No. 10/2004 till then. The matter was listed on
23.03.2004 and on that date, the State of Maharashtra had
filed an affidavit in reply. The writ petitions were taken up for
arguments on 07.04.2004 and 08.04.2004 and later on
adjourned to 14.04.2004. It appears from the record that the
writ petitions were heard on 15.04.2004 and 16.04.2004 when
it was felt by the learned Judges that it would be better to
settle the controversy finally at that stage expeditiously and in
the interest of the State to put the matter to an end instead of
allowing the controversies to precipitate and, therefore, the
publisher’s counsel was requested to try and establish contact
with the author and obtain his consent whether he was willing
to withdraw the allegedly objectionable portion from the book
published all over the world and he should submit an affidavit
as per the suggestions orally observed in the court room. It
was also suggested that if the affidavit was obtained, it would
be without prejudice to the rights of the author, printer and
publisher and the affidavit would be used only to enable the
State to close the matter and put an end to the entire
controversy. The appellants stated that a draft affidavit was
placed before the learned Judges of the High Court in the
presence of all the learned counsel representing the parties,
wherein certain corrections were made in hand and the
learned counsel were directed to incorporate the corrections
and submit the affidavit to the counsel of the State to enable
him to obtain instructions from the Government and in the
meantime, the publisher would get the original affidavit signed
and attested from USA, where the author was residing. The
matter was adjourned to 27.04.2004 to give sufficient time to
the author to file the original affidavit. The signed affidavit of
the author was handed over to the learned counsel
representing the State in advance before the next date of
hearing of the writ petitions on 27.04.2004. When the matters
came up for hearing before the High Court, the attested and
authenticated copies of the affidavit were presented before the
learned Judges without prejudice to the defence of the parties.
The counsel for the State appeared, but he expressed his
inability to give any definite reply and made a statement in the
Court that there was a very positive response to the affidavit
filed by the author and since the decision had to be taken at
the highest level and as the Chief Minister and the Deputy
Chief Minister both were busy with the General Assembly
Elections in the State of Maharashtra, he would require few
more days time before making any statement. On the request
of the learned counsel for the State, the matter was adjourned
to 30.04.2004.
On 30.04.2004, the counsel for the State of Maharashtra
filed an affidavit of the Principal Secretary (Special),
Government of Maharashtra, Home Department, submitting
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that the State would want to investigate whether there was an
organised attempt to destroy the social tranquility or was it a
freak occurrence. In the said affidavit, it was stated that one
passage of the book had hurt the sentiments of the people of
all sections of the society and that it would not be in the larger
public interest to drop the charges. Since the State had
expressed its inability to accept the suggestions of the Court
and the compromise formula, the matter was heard on merits.
The arguments could not be concluded on 30.04.2004 and the
petitions were adjourned to 05.05.2004.
On 05.05.2004, the counsel for the appellant submitted
written submissions that no offence under Section 153 and
153A was made out against the appellants. During the
pendency of the writ petitions, interim order of stay of further
proceedings in FIR No. 10 of 2004 was granted. The affidavit
dated 16.04.2004 filed by Prof. James W. Laine, the author of
the book, was taken on record on 27.04.2004 and the affidavit
dated 20.04.2004 filed by the appellant-publisher of the book,
was also taken on record on 27.04.2004. The High Court on
06.05.2004 recorded an order that the undertakings given by
Prof. James W. Laine as well as by the appellants were
accepted by the Court, but the interim stay order granted on
23.02.2004, whereby further proceedings in the FIR were
stayed, was vacated holding that the investigation was not
complete and the Court has to see all the statements recorded
after full investigation. The Criminal Writ Petitions filed by the
appellants were kept pending. Now, the order dated
06.05.2004 is impugned before us by the appellants.
We have heard the learned counsel for the parties and
perused the material on record.
Mr. Soli J. Sorabjee, learned senior counsel appearing on
behalf of Manzar Sayeed Khan, vehemently contended that on
reading of the FIR it becomes clear that it does not disclose
any offence under Sections 153, 153A and 34 of IPC since
Section 153A requires that there should be some element of
mens rea in doing acts contemplated in the Section. He
contended that the FIR was registered by the Senior Police
Officer without even going through the offending contents of
the paragraph of the book as it is an admitted position that
the book was supplied to the Investigating Officer by the
publisher on his demand after the registration of FIR. He next
contended that there is no allegation in the FIR to prove prima
facie that a paragraph complained causes enmity between
different classes of the society or creates any situation of
hatred between or among the different religions/castes/social
groups as contemplated in Section 153A, whereas Section 153
IPC is not at all attracted in this case. According to the
learned senior counsel, it was during the review of the
historical facts that the allegedly offending paragraph was
written and as soon as it was brought to the notice of the
appellants and the author that one section of the society had
raised some objections in regard to the statement in one
passage of the book, the entire stock of the book was
withdrawn immediately from the market in the country. He
lastly submitted that the book was written with its objective to
review the historical facts of a great historical figure, therefore,
the book has to be read and examined as a whole and a
solitary paragraph does not provide any cogent ground to file
FIR against the appellants, being publisher and printer of the
book.
Ms. Kamini Jaiswal, learned counsel appearing on behalf
of the appellant\026Vinod Hansaj Goyal has adopted the
arguments advanced by Mr. Soli J. Sorabjee, learned senior
counsel.
Mr. Shekhar Naphade, learned senior counsel appearing
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on behalf of the State of Maharashtra, contended that prima
facie the FIR discloses the commission of the offence under
Section 153A of IPC against the appellants and the author of
the book as the offensive paragraph in the book is the wanton
piece of writing and had disturbed the social tranquility of the
State. According to the learned senior counsel, the order of
the High Court directing further investigation does not suffer
from any perversity or illegality and the State, as a conscious
keeper of law and order, would want to investigate the case
whether there was any attempt to disturb any social
tranquility in the State and other parts of the country because
of writing the alleged offensive paragraph in the book. He
further submitted that everything which is an offence or which
is prohibited by law or which furnishes ground for a civil
action is ’illegal’ as defined under Section 43 of IPC. Hence,
according to learned senior counsel, after the investigation of
the case is complete, the State Government would be in a
better position to have an objective assessment of the whole
situation and take appropriate action on the subject-matter in
controversy and at this initial stage no relief should be granted
to the appellants as prayed for.
We have given our thoughtful consideration to the
respective contentions of the learned counsel for the parties.
The question to be decided now is whether the paragraph
complained of would attract the penal consequences envisaged
in Section 153A of IPC. Section 153A of IPC was amended by
the Criminal Law (Amendment) Act, 1969 (Act 35 of 1969). It
consists of three clauses of which clauses (a) and (b) alone are
material for the case on hand, which read as under:
"153A. Promoting enmity between
different groups on grounds of religion,
race, place of birth, residence, language,
etc., and doing acts prejudicial to
maintenance of harmony.\027(1) Whoever-
(a) by words, either spoken or written, or
by signs or by visible representations or
otherwise, promotes or attempts to
promote, on grounds of religion, race, place
of birth, residence, language, caste or
community or any other ground
whatsoever, disharmony or feelings of
enmity, hatred or ill-will between
different religious, racial, language or
regional groups or castes or communities,
or
(b) commits any act which is prejudicial to
the maintenance of harmony between
different religious, racial, language or
regional groups or castes or communities,
and which disturbs or is likely to disturb
the public tranquility, or
(C) *
shall be punished with imprisonment
which may extend to three years, or with
fine, or with both.
Section 153A of IPC, as extracted hereinabove, covers a
case where a person by words, either spoken or written, or by
signs or by visible representations or otherwise, promotes or
attempts to promote, disharmony or feelings of enmity, hatred
or ill-will between different religious, racial, language or
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regional groups or castes or communities or acts prejudicial to
the maintenance of harmony or is likely to disturb the public
tranquility. The gist of the offence is the intention to promote
feelings of enmity or hatred between different classes of
people. The intention to cause disorder or incite the people to
violence is the sine qua non of the offence under Section 153A
of IPC and the prosecution has to prove prima facie the
existence of mens rea on the part of the accused. The
intention has to be judged primarily by the language of the
book and the circumstances in which the book was written
and published. The matter complained of within the ambit of
Section 153A must be read as a whole. One cannot rely on
strongly worded and isolated passages for proving the charge
nor indeed can one take a sentence here and a sentence there
and connect them by a meticulous process of inferential
reasoning.
In Ramesh Chotalal Dalal v. Union of India & Others
[AIR 1988 SC 775], this Court held that TV serial "Tamas" did
not depict communal tension and violence and the provisions
of Section 153A of IPC would not apply to it. It was also not
prejudicial to the national integration falling under Section
153B of IPC. Approving the observations of Vivian Bose, J. in
Bhagvati Charan Shukla v. Provincial Government [AIR
1947 Nagpur 1], the Court observed that the effect of the
words must be judged from the standards of reasonable,
strong-minded, firm and courageous men, and not those of
weak and vacillating minds, nor of those who scent danger in
every hostile point of view. It is the standard of ordinary
reasonable man or as they say in English Law, "the man on
the top of a clapham omnibus". (Emphasis supplied).
Again in Bilal Ahmed Kaloo v. State of A.P. [(1997) 7
SCC 431], it is held that the common feature in both the
Sections, viz., Sections 153A and 505 (2), being promotion of
feeling of enmity, hatred or ill-will "between different" religious
or racial or linguistic or regional groups or castes and
communities, it is necessary that at least two such groups or
communities should be involved. Further, it was observed
that merely inciting the feeling of one community or group
without any reference to any other community or group
cannot attract either of the two Sections.
Prof. James W. Laine, the author of the book, has
exercised his reason and his own analytical skills before
choosing any literature which he intends to include in his
book. Even if the appellant-Manzer Sayeed Khan, a
constituted Attorney of the Oxford University Press, India and
the appellant-Vinod Hansraj Goyal, Proprietor of the Rashtriya
Printing Press, Shahdara, Delhi, or the persons whose names
are mentioned in the acknowledgement by the author, have
provided information for the purpose, including the said
paragraph in the book, it is important and worth observing
that the author has mentioned that BORI, Pune has been his
scholarly home in India and many people therein helped him
for collecting the material. The author has given the names of
many persons, who had helped him in one way or the other
and enlightened him about the history of the historical hero
’Shivaji’. The author has also mentioned in the book about the
International Conference on Maharashtra, etc., which has
given him a lot of material for inclusion in his book. As it
appears from the records, BORI, Pune was established almost
90 years back and it has a great tradition of scholarly work. It
is very improbable to imagine that any serious and intense
scholar will attempt to malign the image of this glorious
Institute. The author thought his work to be worth of
dedication to his mother Marie Whitwell Laine, which was
purely a scholarly pursuit and without any intention or motive
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to involve himself in trouble. It is the sole responsibility of the
State to make positive efforts to resolve every possible conflict
between any of the communities, castes or religions within the
State and try every possible way to establish peace and
harmony within the State under every and all circumstances.
In State of Haryana v. Chaudhary Bhajanlal [AIR
1992 SC 604], this Court has observed that an FIR can be
quashed if it does not disclose an offence and there is no need
for any investigation or recording of any statement.
In the result, for the above-said reasons, the respondents
shall not proceed against Professor James W. Laine, the
author of the book, for offences under Sections 153, 153A and
34 of the IPC being the subject matter of F.I.R. No. 10 of 2004
registered at the Deccan Police Station, Pune.
Both the appeals accordingly stand disposed of.