Harnam Das v. State of Uttar Pradesh

1961. April 27. The Judgment of Gajendragadkar, Sarkar, Wanchoo and Ayyangar, JJ., was delivered by Sarkar, J. Das Gupta, J., delivered a separate Judgment. SARKAR, J.-The only question that was argued in this appeal is substantially one of construction of s. 99D of the Code of Criminal Procedure. The appellant was the author of two books in Hindi called Sikh Mat Khandan Part 1 and Bhoomika Nazam Sikh Mat Khandan which he had published in April 1953. On July 30, 1953, the Government of Uttar Pradesh, the respondent in this appeal, made an order under s. 99A of that Code forfeiting these books which were thereupon seized and taken away. That order, so far as material, was in the following terms: "In exercise of its powers conferred by sectiori 99A of the Code of Criminal Procedure ......... the 2 s.c.R. SUPHEME COURT l'tEPORTt:> 489 Government is pleased to declare the books ......... for- feited to Government on the ground that the said books contain matter, the publicatfon of which is punishable under section 153-A and 295-A of the Indian Penal Code." It is the validity of this order that is challenged in the present appeal. Section 99A under which the order was made, so far as relevant, is in these terms: "Where any newspaper, or book ...... or any docu- ment ......... appears to the State Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately i.nd maliciously intended to outrage the religious feel­ ings of any such class by insulting the religion or the religious belief of that class, that is to say, any matter the publication of which is punishable under section 124A or section 153A or section 295A of the Indian Penal Code, the State Government may, by notification in the Official Gazette stating the grounds of its opinion, declare ......... every copy of such book ...... to be forfeited to Government.. .... " Two things appear clearly from the terms of this section. The first thing is that an order under it can be made only when the Government forms a certain opinion. That opinion is that the document concern­ ing which the order is proposed to be made, contains "any matter the publication of which is punishable under section 124A or section 153A or section 295A of the Penal Code." Section 124A deals with seditious matters, s. ! 53A with matters promoting enmity bet­ ween different classes of Indian citizens and s. 295A with matters insulting the religion or religious beliefs of any class of such citizens. The other thing that appears from the section is that the Government has to state the grounds of its opinion. The order made in this case, no doubt, stated that in the Government's opiniori the books contained matters the publication of which was punishable under ss. 153A and 295A of the Penal Code. It did not, however, state, as it should have, the grounds of that opinion. So it is Harna111 Das v State of U ttar J-lradesh sa~kar 1. Harnani Das v. State of UJtar. Pradesh Sarkar ]. not. known which communities were alienated from each other or whose religious beliefs had been wound­ ed according to the Government, nor why the Govern­ ment thought that such alienation or offence to religion had been caused. Now s. 99B gives the person interested in the books, or documents forfeited, a right to apply to the High Court to set aside the order made under s. 99A, and s. 99D specifies the High Court's duty on such an application being made to it. These two sections will have to be especially considered in this case and so they along with s. 99C, are set out below. S. 99B. Any person having any interest in any newspa.per, book or other document, in respect of which an order of forfeiture has been made under section 99A, may, within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper, or the book or other document, in respect of which the order was made, did not con­ tain any seditious or other matter of such a nature as is referred to in sub-section (1) of section 99A. S. 990. Every such application shall be heard and determined by a Special Bench of the High Court composed of three Judges. S. 99D. (1) On receipt of the application, the Special Bench shall, if it is not satisfied that the issue of the newspaper, or the book or other docu­ ment, in respect of which the application has been made, contained seditious or other matter of such a nature as is referred to in sub-section (1) of section 99A, set aside the order of forfeiture. We think it fairly clear from these sections that the ground on which an application can be made under s. 99B is the ground which, if established, would require the High Court to set aside the order under s. 99D. The appellant had moved the High Court at Allahabad under s. 99B to set aside the order of for­ feiture of his books. It seems to have been contended in the High Court that the order of forfeiture should be set aside on the ground that the grounds of the l- 2 S.C.R. SUPREME COURT REPORTS 491 Government's opinion had not been stated. With regard to this contention, the High Court observed, "The requirement to state the ground is mandatory. A mere citation of words of the section will not do. But as has been held by a Special Bench of this Court in Baijnath v. Emperor (A.LR. 1925 All. 195), with which we respectfully agree, the High Court in view of the provisions of s. 99D of the Code of Criminal Pro­ cedure is precluded from considering any other point than the question whether in fact the document comes within the mischief of the offence charged." In this view of the matter the High Court refused to set aside the order on account of the omission to state the grounds of the opinion. The High Court then pro­ ceeded to examine the books for itself and found that their contents were "obnoxious and highly objection­ able" and dismissed the application observing that the appellant had "entirely failed to show that the books did not contain matters which promoted feelings of enmity and hatred between different classes, or which did not (sic) insult or attempt to insult the religion or religious beliefs of the Sikhs''. The present appeal arises out of this order of the High Court. The High Court was of the view that its duty under s. 99D was only to see "whether in fact the document comes within the mischief of the offence charged''. It thought that a document would be within the mischief of the offence charged if, in its own opinion, it con­ tained matters the publication of which would be punishable under either s. 124A, or s. 153A or s. 295A of the Penal Code as mentioned in the order of forfei­ ture, irrespective of the Government's opinion on the matter. Otherwise, it seems to us, the High Court could not uphold the order for the reason that in its view the books offended the Sikhs and the Sikh reli­ gion in spite of the fact that there is nothing to show that the Government thought that the books had that effect. The same view appears to have been taken in certain other cases, namely, Premi Khem Raj v. Chief Secretary('), N. Veerabrahmam v. State of Andhra Pradesh(') and Baba Khalil Ahmed v. State of U.P. ('). (1) A.I.R. (1951) Raj. 113. (2) A.l.R. (1959) A,P. 572. (3) A.I.R. (196o) AU. 71~. Harnani Das v. State of U !tar Pradesh Sarkar j. r96r lfar11an1 J)as v. State of Uttar Pradesh Sar/air J. Apparently, it was thought in these CP.ses that the words "if it is not satisfied that ......... the book ........ . contained seditious or other matter of such a nature as is referred to in sub-section (I) of section 99A" in s. 99D meant, not so satisfied for any reason whatso­ ever irrespective of the reasons on which the Govern­ ment formed its opinion about it. We arc unable to accept this constrnction of s. 99D. The question is what do the words "matter of such a nature as is referred to in sub-section (I) of sec­ tion 99A" appearing in s. 99D mean'/ Do they mean any matter of that nature as the High Court thought? Or do they mean only those on which the order of for­ feiture was based, that is, those which for the reasons stated by it, the Government thought were punishable under one or more of sections 124A, 153A and 295A of the Penal Code mentioned by it? It seems to us that the latter is the correct view and follows inevi­ tably if ss. 99A, 99l3 and 99D are read together, as they must. Now s. 99D is concerned with setting aside an order. That order is one made under s. 99A. An order under that section can be made only when certain things have appeared to the Government and the Govern­ ment has formed a certain opinion. The section fur­ ther requires the Government to state the grounds of its opinion. It is this order, that is, the order based on the grounds stated, which the party affected has been given by s. 99B the right to move the High Court to set aside. It would follow that all that s. 99B can require the party to do is to show thrit that order was improper. Whether that order was proper or not would, of comse, depend only on the merits of the grounds on which it was based; whether another order to the same effect could havo been made on other grounds is irrelevant, for that would not show the validity of the order actua.lly made; that order would be bad if the grounds on which it is made do not sup­ port it. Two orde:rs, though both saying that a pub­ lication contains matter which offends the same section of the Penal Code cannot be the same or an identical order if the reasons why they are considered so to ' ' !­ - ,_ 2 S.C.R. SUPREME COURT REPORTS 493 offend the section of the Penal Code concerned are different. Nows. 99B says that a person affected by the order may move the High Court to set it aside on the ground that the book "did not contain any sedi­ tious or other matter of such a nature as is referred to in sub-section (1) of section 99A". The matter men­ tioned here must, for the reasons stated, refer only to such matter on which for the grounds stated by it, the Government's opinion has been based. We proceed now to s. 990. It is concerned with the same order of forfeiture. An order contemplated bys. 99D is made on an application under s. 99B. That order must therefore accept or reject the grounds on which the application under s. 99B was made. These grounds, as we have seen, are confined to chal­ lenging th" propriety of the grounds on which the Government's opinion resulting in the order, was based. The words which we have earlier quoted from s. 99B occur substan·~,ally in the same form in s. 99D. The scope of the two sections is identical. The common words occurring in them must, therefore, have the same meaning in both. They must hence, in s. 99D also mean such matters on which for the grounds stated by it the Government's opinion was based. They cannot mean, as the High Court thought, any matter whatsoever, irrespective of the Govern­ ment's reasons for making the order, which in the High Court's opinion would have justified it. This view of the matter also explains why s. 99A requires the Government to state the grounds of its opinion. The reason was to enable the High Court to set aside the order of forfeiture if it was not satis­ fied of the propriety of those grounds. If it were not so, the grounds of the Government's opinion would serve no purpose at all. This would specially be so as s. 99G provides that an order of forfeiture cannot be called in question except in accordance with the provisions of s. 99B. If the order could be upheld, as the High Court seems to have thought, on grounds other than those on which the Government based its opinion, there would have been no need to provide 63 Harnam Das v. State of Uttar Pradesh Sarkar ]. Ha1nGm Das v. State of Uttar Pradesh Sarkar ]. that the grounds of the Government's opinion should be stated; such grounds would then have been wholly irrelevant in judging the validity of the order. The acceptance of the interpretation put by the High Court would lead to a result which, in our view, would be wholly anomalous. The order of forfeiture with which s. 99D is concerned is indisputably an order under s. 99A. Now, an order under that sec­ tion is essentially an order of the Government and of no one else. Take a case where the Government mak­ ing the order states the grounds of its opinion on which the order is based. Suppose the Government says that the expression of view A in the book con­ cerned offends the religious beliefs of community X. Now assume that in an application made to set it aside, the High Court was not satisfied that view A could offend community X hut thought that another expression of view in the same book which we will call B, offended the religious beliefs of a. different com­ munity, say community Y. If in such a case the High Court upheld the order, which, if the view of the Court below is right, it could do, there would really be an order of forfeiture made by the High Court and not by the Government, because.the Government in stating the grounds of its opinion had not, since it did not say so, thought that view B could offend the religious beliefs of community Y. We think it impos­ sible that the sections concerned contemplated such a result; the Code now here provides for an order of forfeiture being made by the High Court. We are, therefore, of opinion that under s. 99D it is the duty of the High Court to set aside an order of forfeiture if it is not satisfied that the grounds on which the Government formed its opinion that the books con­ tained matters the publication of which would be punishable under any one or more of ss. 124A, l53A or 295A of the Penal Code could justify that opinion. It is not its duty to do more and to find for itself whether the book contained any such matter what­ soever. What then is to happen when the Government did not state the grounds of its opinion? In such a case 2 S.C.R. SUPREME COURT REPORTS 495 if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have in contemplation at all. If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government. This, as already stated, the High Court has no power to do under s. 99D. It seems clear to us, therefore, that in such a case the High Court must set aside the order under s. 99D, for it cannot then be satisfied that the grounds given by the Government justified the order. You cannot be satisfied about a thing which you do not know. This is the view that was taken in Arun Ranjan Ghose v. State of West Bengal(') and we are in complete agree­ ment with it. The present is a case of this kind. We think that it was the duty of the High Court under s. 99D to set aside the order of forfeiture made in this case. We accordingly allow the appeal and set aside the Government's order of forfeiture dated July 30, 1953. The appellant will be entitled to a return of all books, documents and things seized under that order. DAS GUPTA, J.-By a notification dated July 30, 1953 the Lttar Pradesh Government acting under s. 99A of the Code of Criminal Procedure declared the books "Sikh Mat Khandan, Part I" and "Bhoo­ mika Nazam Sikh Mat Khandan" which had been published by the appellant Harnam Das in April 1953, forfeited to government on the ground that these books contained matters the publication of which was punishable under s. 153A and 295A of the Indian Penal Code. The High Court held on an examination of the books that they clearly came within the mischief of s. 153A and s. 295A of the Indian Penal Code. Accordingly it held that the order of the State Government forfeiting the two books was eminently just and proper and in that view dismissed the application. One argument appears to have been raised that the order of forfeiture should be set aside as the notifica­ tion by which the government made the declaration <•> (1955> 59 c.w.N. 495. Harnam Das v. State of U ttar Pradesh Sarkar ]. Das Gupta]. zy61 Ha:tnam Das v. State of Uttar Pradesh Das Gupta ]. of forfeiture did not state the grounds of the govern­ ment's opinion as required by s. 99A. The High Court rejected this argument being of opinion that in view of the provisions of s. 99D of the Code of Crimi­ nal Procedure the High Court was "precluded from consideration of any other point than the question whether in fact the document comes within the mis­ chief of the offence charged." It is quite clear that the government notification did not state the grounds of the opinion formed by the government that these documents contained mat­ ters the publication of which was punishable under s. 153A and s. 295A of the Indian Penal Code. The question raised before us is whether the High Court was right in rejecting the argument that the order of forfeiture should be set aside on the ground that grounds of the government's opinion were not stated in the government notification as required by s. 99A. The view which prevailed with the learned judges in respect of this question was in accord with what had been held by the same High Court in an earlier case of Baijnath v. Emperor(') and by the Rajasthan High Court in Premi Khem Raj v. Chief Secretary('). The same view has later on been taken by the Andhra Pradesh High Court in N. Veerabrahmam v. State of Andhra Pradesh(') and by the Allahabad High Court in a later decision in Baba Khalil Ahmad v. State of U. P. ('). A contrary view appears to have been taken by the Calcutta High Court in Arun Ranjan Ghose v. The State of West Bengal('). The material portion of s. 99A is in these words:- "Where any newspaper, or book ...... or any docu- ment ...... appears to the Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious belief of that . (1) A.I.R. (r925) All. 195. (2) A.I.R. (19<1) Raj. 113. (3) A.I.R. (r959) An. Pr. 57'- (4) A.J.R. (1960) AIL 715. (5) (1955) 59 C.W.N. 495· !• i \_ 2 S.C.R. SUPREME COURT REPORTS 497 class, that is to say, any matter the publication of which is punishable under section 124A or section 153A or section 295A of the Indian Penal Code, the State Government may, by notification in the Official Gazette stating the grounds of its opinion, declare ...... every copy of such book ...... to be forfeited to the government." It is clear therefore that before any government makes a declaration forfeiting a book under the pro­ visions of this section it has first to be of opinion that the book does contain a matter the publication of which is punishable under s. 124A or s. 153A or s. 295A of the Indian Penal Code. Once it forms such an opinion the government has the power to declare the book forfeited. The section requires that this must be done by a notification in the official gazette and in that notification the government is required to state the grounds on which it formed the opinion. The legislature however did not make such an order made by the government immune from any attack. In s. 99B it has provided the means by which the aggrieved person may obtain relief against the order if in fact the government was wrong in its opinion and the book did not contain a matter the publication of which is punishable under s. 124A, or s. 153A or s. 295A of the Indian Penal Code. Section 99B runs thus:- " Any person having any interest in any news­ paper, book or other document, in respect of which an order of forfeiture has been made under s. 99A, may, within two months from the date of such order, apply to tho High Court to set aside such order on the ground that the issue of the news­ paper, or the book or other document, in respect of which the order was made, did not contain anv seditious or other matter of such a nature as fo referred to in sub-section (1) of s. 99A." Section 99D provides that if after hearing the application tho High Court is not satisfied that the issue of the document in question contains any sedi­ tious matter or any other matter referred to in s. 99A, that is to say, any matter the publication of which is 11;6 r Harnam Das v. Stale of UJ!tn I'radesh Das Gupta ]. r961 Harnam Das v. State of U ttar }'radesh Das Gupta]. 498 SUPREME COURT liEPORTS [1962] punishable under s. 124A or s. 153A or s. 295A of the Indian Penal Code the High Court shall set aside the order of forfeiture. The necessary result of the pro­ vision also is that if the High Court is satisfied that the book in question contains matter the publication of which is punishable under s. 124A or s. 153A or s. 295A of the Indian Penal Code, tL High Court will refuse. to set aside the order of forfeiture. It has to be noticed that s. 99B in providing for relief to a person aggrieved by an order of forfeiture has limited the grounds on which relief can be applied for to one and one only, viz., that the issue of the newspaper, or the book or other document, in respect of which the order was made, does not contain any seditious matter or other matter of such a nature as is referred to in sub-section (1) of s. 99A. The appellant's contention that the High Court should also examine the notification to find out whe­ ther the government had stated the grounds of its own opinion as required by s. 99A and set aside the order of forfeiture if it finds that this requirement has not been fulfilled seeks to add an additional ground on which an application can be made under s. 99B and relief can be given by the High Court under s. 99D. The question is: Can that be donE>? It is well to recog­ nise thaf just as a right of appeal is a creature of statute the right to apply for setting aside an order­ which is really in the nature of an appeal-is equally a creature of statute and when the legislature creates such a right by a statute it may at its option make the right unlimited or may limit it in any manner it likes. It is settled law that no Court can add to or enlarge the grounds for appeal as laid down in the statute creating the appeal. The position is exactly the same when the sta­ tute creates a right to seek relief by way of applica­ tion and no court can add to the grounds on which relief can be sought if the statute creating the right to obtain relief is limited to one or more specified grounds. It is interesting to remember in this connec­ tion the right to apply for review granted by 0. 47 r. 1 of the Code of Civil Procedure. After specifying 2 S.C.R. SUPREME COURT REPORTS 499 some grounds on which a review can be applied for, the legislature added a further ground in the words "for any other sufficient reason". The proper inter­ pretation of these words "for any other sufficient reason" has engaged the anxious consideration of the courts and in 1922 the Privy Council after a review of the numerous cases laid down the rule that "for any other sufficient reason" means a reason sufficient on grounds at least analogous to those specified im­ mediately previously. If the correct position had been that the court might add to the ground for a review whenever it thought fit., all the discussion as regards the interpretation of "for any other sufficient reason" would have been meaningless and unnecessary. Indeed the position in law that the courts cannot add to the grounds to which the legislature has limited the right of relief is so very clear and unassailable that the learned counsel for the appellant did not like to suggest that a ground can be added. To overcome this difficulty that the courts cannot add to the grounds of relief specified in s. 99B and s. 99D, an in­ genious argument has been put forward that in order that the High Court can give proper relief on the very ground mentioned in s. 99B and s. 99D it is essential that the government's order should state the grounds of its opinion. The steps of the argument may shortly be stated thus:-The government has formed an opinion. The High Court has to see that that opinion is correct. In order to do this the High Court must know what weighed with the government in coming to its opinion. Therefore, without the grounds of the Government's opinion the High Court cannot be satisfied within the meaning of s. 99D that the issue of the newspaper contained the matter com­ plained of. The fallacy of this syllogistic process is in the un­ soundness of the premises that in order to determine whether the government's opinion is correct or not the High Court must know what weighed with the govern­ ment. When the application is heard by the High Court and it has to come to a conclusion whether it is or it is not satisfied that the issue of the newspaper, 196I T-iarnatn Das v. Slate of Uttar Pradesh Das Gupta ]. I96I Harnam Das v. State of l.Jttar Pradesh Das Gupta ]. or the book or other document does contain a matter mentioned ins. 99A, the one and only way of coming to a conclusion appears to me to be to read the news­ paper, or the book or other document. Arguments of counsel might be of assistance; if the government has stated its grounds for coming to its opinion, that would also help; but the ultimate responsibility of deciding whether or not to be satisfied that the issue of newspaper contains matters as mentioned in s. 99A can only be discharged by the High Court by reading the document in question. It has been suggested that whens. 99B ands. 99D uses the words "any seditious or other matter of such a nature as is referred to in sub-s. (1) of s. 99A", they mean only those matters on which the Govern­ ment based the order of forfeiture; so it is urged, un­ less the Government stated the ground of its opinion, it will be impossible for the Court to decide the ques­ tion under s. 99D. I confess I do not think it reasonably possible to conceive of a case, where an order under section 99A will not mention the particular matter referred to in s. 99A. (1) The mention of the particular matter out of the several matters referred to in section 99A which in its opinion is contained in the document does not however involve the statement of reasons for forming the opinion. Suppose a Government states that in its opinion the document contains seditious matters. It does not cease to be a complete statement on this point merely because the reason for forming the opinion are not also stated. The formation of the opinion that one or more of the matters referred to in the section are contained in a document and the state­ ment that such an opinion has been formed are quite distinct from the statement of the reasons for forming the opinion. It appears to me clear that where, as in the present case the Government order contains a statement of the particular matter or matters out of the several matters, referred to in s. 99A, viz., any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred bet­ ween different classes of the citizens of India or 2 S.C.R. SUPREME COURT REPORTS 501 which is deliberately and maliciously intended to out­ rage the religious feelings of any such class by insult­ ing the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under section 124A or section 153A or sec­ tion 295A of the Indian Penal Code" which in its opinion the document contains, no difficulty can possibly arise from the fact that the Court has not got before it Government's grounds for forming such opinion. But, asks the appellant, why was it necessary then for the legislature to require in s. 99A that the Government should state the grounds of its opinion when notifying the order of forfeiture? The real reason, it is urged, was to enable the High Court to set aside the order of forfeiture if it was not satisfied of the propriety of those grounds, and necessarily also when no grounds were stated. If that were correct, it was reasonable to expect the legislature to make the necessary provision in s. 99B that an order could be challenged on the ground that the grounds of the opinion were not stated, and consequential provisions in s. 99D. I can see no justification for reading into these sections-section 99A and section 99D-words which are not there, in an attempt to understand why s. 99A contains such a requirement for statement of grounds of the opinion. There can be no doubt that this is a very salutary provision that Govern­ ment should record the grounds of its opinion. Such a provision diminishes the risk of government making an arbitrary order of forfeiture. It was therefore a question of legislative policy for the legislature to require that the government should state its opinion. To say that there coud have been no reason for includ­ ing such a requirement in s. 99A unless the legisla­ ture intended the High Court to interfere if grounds of the opinion were not stated, is, in my opinion, wholly unjustified. It seems clear to me that the duty cast by section 99D on the judges of the High Court is not to see whether in a particular case the grounds stated by 64 Harnam Das v. State of Uttar Pradesh Das Gupta J. JI atna1n Das v. State of U ttar Pradesh Das Guptri ]. the government for forming its opinion are correct, but to see whether the opinion formed was correct. To perform this.duty the one and the only way is to examine the document which in the. Government's opinion contains thu matter complained of. The lj.rgument that the High Court is not in a posi­ tion to perform this duty under s' 99D satisfa"ctorily in the abs~nce of a statement by the government of the grounds of its opinion appears to me therefore wholly unsound. In this very case, the learned judges of the High Court of Allahabad felt no difficulty in coming to a conclusion on the question before them even though the government had not stated the grounds of its opinion. I fail to see any justification for imagining difficulties where there are none. I have therefore come to the conclusion that the High Court was right in rejecting the argument that the order of forfeiture should be set aside on the ground that the notification did not state govern­ ment's grounds for forming the opinion. The appeal should therefore be dismissed. BY COURT:-In view of the opinion of the majority, this appeal will be allowed and the order of the High Court, set aside. The appellant will be entitled to the return of all the books, documents and other things seized from him under the order now set aside. He will also be entitled to the refund of expenses and costs that he had to pay under the order of the High Court.