RAJASTHAN HIGH COURT

           Premi Khem Raj Sharma

           Vs.

           Chief Secretary

                       Misc. Appln No. 2 of 2005
           (Nawal Kishore, C.J., Ranawat and Sharma, JJ.)

           31.08.1950

           JUDGMENT

Sharma, J

1. This is an appellant by Premi Khem Raj, Advocate the editor of 'Congress Ka
Khuni Itihas', under Section 99B of the Criminal Procedure Code. 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 and 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, 'Panjab 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'
       Jaipur, 9.7.1948.
       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
       and consequently to the maintenance of public peace and order in the State, and
       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 99A, Criminal Procedure
       Code 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', and 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 and consequently to the maintenance of public peace and order in
the State is 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 and thinking of the country except that of
Congress and that too by the Congress men.
4. A notice was issued to the Chief Secretary to the Govt. of Jaipur and the said Govt.
having been replaced by the Govt. of Rajasthan, the appellant 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, and 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 and 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
authorized 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 appellant, 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
       appellant has been made, contained seditious or other matter of such a nature as
       is referred to in sub-sections (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 and 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 253 A or Section 295 A, Indian Penal Code. Reliance has
been placed upon a ruling reported in 'Baijnath v. Emperor', 1 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 and is intended to promote feelings of enmity and hatred between the Hindus
and 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 and 65 thereof. It has been
argued that these extracts clearly promote and were intended to promote feelings of
enmity or hatred between Hindus and 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, and 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 given in Section 99D. It was held by Mears, C.J. and Piggot
and Mukerji, JJ., in the case 'Baijnath Kadia v. Emperor', 2 cited by the learned Govt.
Advocate that

       "When an appellant 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 and came within the mischief aimed at by Section 124 A."

It was held in that case that the absence of the grounds of the Govt's opinion, as
required by Section 99A, does not entitle the H.C. to set aside the order of
proscription. When Section 99 A and other connected sections were enacted in 1922,
the only ground, on which a document could be proscribed, was that it contained
seditious matter and so the order of proscription in the case referred to was on the
ground that the document in question contained seditious matter and the appellant for
setting aside the order of proscription was made upon the ground that there was no
seditious matter in the book and 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 and 1927 so as to include
matters punishable under Sections 153 A and 295A, Indian Penal Code also. In the
present case, the author has made the appellant on the ground that the booklet does not
contain any seditious or other matter of such a nature as is referred to in sub-s (1) of
Section 99A of Jaipur Criminal Procedure Code and 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', 3 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, Criminal Procedure Code, as Sections 99 A, 99 B, 99
C, 99 D and other Sections up to 99G were not enacted when that decision was given,
but were incorporated in the Criminal Procedure Code in the year 1922 by the Press
Law Repeal and 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 appellant 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 instituted
'Congress Ka Khuni Itihas' (Bloody history of Congress), the second 'Hindu Janta
Sarvanash' (Utter Destruction of Hindu Community) the third 'Hyderabad and
Congress', and 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 criticizes the language policy of the
Hindustani Talimi Sangh of Wardha. In the third part he criticizes the Nizam Govt. of
Hyderabad and describes the atrocities against the Hindus which were being
perpetrated under that regime. Towards the end he criticizes the Congress for not
raising its little finger against the said regime and 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 Sri Bhullabhai Desai some time
before the latter's death and holds the Congress and 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 and 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, and 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 and Mahatma Gandhi in
the language which is certainly very abusive and vilifying, 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 that 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 Ali 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 and in dealing
with that event, long past and buried, he gives very harrowing details. Forcible
conversion of thousands of Hindus and misbehavior of Muslims towards thousands of
Hindu women have been alluded to. Mahatma Gandhi has been criticized 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 create
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 and which are likely
to make the blood of an average Hindu boil have not been spared and 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,
and 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 and 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 and not a single good word has been said in favor 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 and 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 and 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 and
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', 4 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 153 A, Penal Code and 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, and they themselves would be conclusive and 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', ),5 it was held that
where the words naturally, clearly and 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', 6 it was held that a violently abusive and
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 and 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 and enmity between two communities or excite one community
against another. It is (not?) necessary to find that they actually brought about enmity
and hatred between the two communities. It has been found above that several parts of
the booklet are such as to encourage feelings of hatred and enmity between Hindus
and Muslims, and incite the former against the latter.

14. From the wordings of Sections 99 B and 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', 7 The words being clearly such as to have a tendency to
promote hatred and 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 and 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,
and 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 and 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 and 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 and hatred between the two communities. At any rate the words
used in the order are not inconsistent with the words used in Section 99 A and 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 not
used in the order.

16. On the day when the judgment was to be delivered the learned counsel for the
author put in an appellant that Section 99 A was repugnant to Section 19, Constitution
Ind which came into force on 26.1.1950, and therefore the order of proscription should
be set aside. He was allowed to argue on this point as well and 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
and 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 and the Muslims. Under these circumstances, the order cannot be
interfered with by virtue of Article 19, Constitution Ind.

17. The appln has no force and it is dismissed.

Ranawat, J.:- I Agree.

Nawal Kishore, C.J. :- I also agree.
Application dismissed.

Cases Referred.

1. AIR 1925 All 195: (26 Cr LJ 679 FB)
2. AIR 1925 All 195: (26 Cr LJ 679 FB)
3. AIR 1914 Cal 242: (14 Cr LJ 497 SB)
4. AIR 1936 All 314: (37 Cr LJ 599 SB)
5. AIR 1932 Lah 99: (34 Cr LJ 473 SB
6. AIR 1925 All 195: (26 Cr LJ 679 FB)
7. AIR 1936 All 314: (37 Cr LJ 599 SB)