The applicant calls upon Hindus to protect themselves against the alleged ordainment of Islam upon all Muslims to kill or convert Non-Muslims. Hence, the book clearly attracts Section 153-B(1)(b) and (c) of the IPC; (ix) The applicant’s case that the book contains matter which is part of folklore, tradition, history; that the author has merely relied on contents of other books to substantiate his view; that his interpretation is supported by several Ayats in the Holy Quaran must be rejected because the passages of the Quaran are torn out of context and the book is a AJN23 deliberate misreading of the Quaran solely to promote feelings of ill-will through publication in the guise of political thesis or historical truth. Even truth is no defence to a charge under Section 153-A, 153-B or 295-A of the IPC; (x) The plea that the book was published in 2003 and till its forfeiture there has not been a single instance of violence or disturbance of law and order so as to warrant forfeiture is not tenable; (xi) the applicant not having raised the plea of limitation in the application, he may not be permitted to raise it at this stage; [Narne Murthy v. Ravula (2005) 6 SCC 614 and Municipal Corporation v. Sri Niyamatullah (1969) 2 SCC 551] (xii) The validity of Section 95 of the Code has been upheld by the Supreme Court in Baragur and the contention that there has been a violation of the principles of natural justice must be rejected. The power under Section 95 of the Code is preventive and not punitive. Section 95 does not contemplate any hearing prior to the taking of a decision, for that may defeat the purpose of Section 95 of the Code. Section 96 of the Code provides a post decisional AJN24 challenge. The aggrieved person has an opportunity to assail the order of forfeiture; (xiii) The restrictions placed on the exercise of powers under Section 95 of the Code are reasonable restrictions under Article 19(2) of the Constitution. The term `in the interest of public order’ as mentioned in Article 19(2) is of a very wide amplitude and includes restrictions imposed by Section 95 of the Code; (xiv) The constitutional validity of Section 295-A of the IPC has been upheld by the Supreme Court in Ramji Lal Modi, The doctrine of `clear and present danger’ invoked by the applicant cannot be imported in the Indian Constitution; (xv) The petitioner’s reliance on Balwant Singh and Manzhar Khan is misplaced because they were cases where offence was registered under Section 153-A of the IPC wherein the degree of proof required to establish mens rea is greater than in cases where a publication is forfeited under Section 95 of the Code. Considering the constitutional mandate of adherence to the principles of secularism, this court should strike a balance between protecting the fundamental right of AJN25 freedom of speech on one hand and public interest on the other and dismiss the application. 13. Since the interveners were allowed to intervene for a limited purpose, we do not propose to deal with the submissions which travel beyond the scope of intervention. It is urged that the courts may refer to religious scriptures but should not put its own interpretation over the text or scriptures. The Constitution protects freedom of conscience and when a question arises as to what constitutes essential part of religion, the same should be primarily ascertained with reference to the doctrine of that religion. 14. When this court has to perform its duty in terms of Section 95(1) read with Section 96(4), to consider whether a declaration of forfeiture of any book is to be set aside or not and when that book happens to be a critical analysis of a religion, an overview of religious tenets and philosophy by the court becomes inevitable. We are not AJN26 for a moment contemplating importing our own views on the scriptures. We shall deal with the rival submissions keeping in mind the judgments cited by Mr. Muchhala. Mr. Muchhala has taken us through the relevant Ayats and explained their context. As and when necessary, we shall refer to Mr. Muchhalas submissions. 15. Another intervenor, Mr. Khandelwal, who is appearing in person has raised an objection to our allowing Mr. Muchhala to intervene. In this connection, he has relied on an unreported judgment of the Supreme Court dated 30/8/1999 in Shiv Kumar v. Hukum Chand & Anr. In that case, the appellant/complainant wanted the counsel appointed by him to conduct the prosecution in the Sessions Court. The public prosecutor had consented to it. The High Court rejected the prayer. After considering the relevant provisions of the Code, particularly Section 301 thereof, the Supreme Court endorsed the High Courts view after observing that the prosecution in a Sessions Case cannot be conducted by AJN27 anyone other than the public prosecutor. The Supreme Court observed that if a private counsel is allowed a free hand to conduct a prosecution he would focus on bringing the case to conviction even if it is not a fit case where the accused could be convicted. That is the reason why Parliament has subjected his role strictly to the instructions given by the public prosecutor. This Judgment has no application to the present case. Here we are not concerned with Sessions trial, nor have we allowed Mr. Muchhala to intervene so as to act as counsel for the State.
Posted on: Thu, 09 Oct 2014 12:06:15 +0000
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