# STATE OF MAHARASHTRA & ORS v. SANGHARAJ DAMODAR RUPAWATE & ORS

- **Citation:** [2010] 8 S.C.R. 328
- **Court:** Supreme Court of India
- **Decided:** 2010-07-09
- **Case number:** Civil Appeal No. 5205 of 2010
- **Bench:** D.K. Jain, H.L. Datiu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-ors-v-sangharaj-damodar-rupawate-ors-27037
- **Pages:** 30

## Headnote

Code of Criminal Procedure, 1973 - s. 95 - Notification
under - Forfeiture for of books - On the basis of FIR alleging
c offences u!ss. 153, 153A rlw s. 34 /PC - Notification quashed
by High Court - On appeal held: _The power uls. 95 has direct
impact on the right of freedom of speech and expression
under Article 19(1)(a) of Constitution and impinges on right
to privacy - Therefore, the provision has to be construed
o strictly and the power thereunder must be exercised only in
accordance with the procedure laid down therein - It is
mandatory for such notification to state the ground on which
the Government formed its opinion -
Test of validity of
notification - Legal aspects to be kept in mind - Discussed
E - On facts, the notification is invalid as the conditions
statutorily mandated for exercise of powers uls. 95 are lacking
- The FIR which formed the basis for issuance of notification
since was quashed by Supreme Court, the notification also
becomes invalid -
Constitution of India, 1950 - Article
F
19(1)(a).
State of Maharashtra issued notification u/s. 95(1)
Cr.P.C., directing forfeiture of every copy of the book titled
"Shivaji - Hindu King in Islamic India". The notification
was issued on the basis of an FIR registered u/ss. 153,
G 153A rls. s. 34 IPC. The notification was challenged and
the same was quashed by High Court. Therefore, the
instant appeal was filed by the State.
Dismissing the appeal, the Court
H
328
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 329
DAMODAR RUPAWATE & ORS.
HELD: 1.1 The power to issue a declaration of A
forfeiture u/s. 95 Cr.P.C. postulates compliance with twin
essential conditions, viz., (i) the Government must form
the opinion to the effect that such newspaper, book or
document contains any matter, the publication of which
is punishable u/s. 124-A or Section 153-A or Section 153B
B or Section 292 or Section 293 or Section 295-A of IPC,
and (ii) the Government must state the grounds of its
opinion. Therefore, it is mandatory that a declaration by
the State Government in the form of notification to the
effect that every copy of the issue of the newspaper, C
book or document be forfeited to Government, must state
the grounds on which the State Government has formed
a particular opinion. A mere citation of the words of the
Section is not sufficient. The power to forfeit a
newspaper, book or document is a drastic power D
inasmuch as it not only has a direct impact upon the due
exercise of a cherished right of freedom of speech and
expression as envisaged in Article 19(1 )(a) of the
Constitution, it also clothes a police officer to seize the
infringing copies of the book, document or newspaper E
and to search the places where they are reasonably
suspected to be found, again impinging upon the right
of privacy. Therefore, the provision has to be construed
strictly and exercise of power under it has to be in the
manner and according to the procedure laid down
therein. [Paras 18 and 19] [347-C-F; 347-H; 348-A-B]
F
1.2 The following legal aspects can be kept in mind
while examining the validity of a notification issued u/s.
95 of Cr.P.C.:
G
(i) The statement of the grounds of its opinion by the
State Government is mandatory and a total absence
thereof would vitiate the declaration of forfeiture.
Therefore, the grounds of Government's opinion must be
stated in the notification issued u/s. 95 Cr.P.C. and while H
330
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
testing the validity of the notification the Court has to
confine the inquiry to the grounds so disclosed;
8
(ii) Grounds of opinion must mean conclusion of
facts on which opinion is based. Grounds must
necessarily be the import or the effect or the tendency of
matters contained in the offending publication, either as
a whole or in portions of it, as illustrated by passages
which the Government may choose. A mere repetition of
an opinion or reproduction of the Section will not answer
C
the requirement of a valid notification. However, at the
same time,

## Text

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A
B
[2010] 8 S.C.R. 328
STATE OF MAHARASHTRA & ORS.
v.
SANGHARAJ DAMODAR RUPAWATE & ORS.
(Civil Appeal No. 5205 of 2010)
JULY 9, 2010
[D.K. JAIN AND H.L. DATIU, JJ.]
Code of Criminal Procedure, 1973 - s. 95 - Notification
under - Forfeiture for of books - On the basis of FIR alleging
c offences u!ss. 153, 153A rlw s. 34 /PC - Notification quashed
by High Court - On appeal held: _The power uls. 95 has direct
impact on the right of freedom of speech and expression
under Article 19(1)(a) of Constitution and impinges on right
to privacy - Therefore, the provision has to be construed
o strictly and the power thereunder must be exercised only in
accordance with the procedure laid down therein - It is
mandatory for such notification to state the ground on which
the Government formed its opinion -
Test of validity of
notification - Legal aspects to be kept in mind - Discussed
E - On facts, the notification is invalid as the conditions
statutorily mandated for exercise of powers uls. 95 are lacking
- The FIR which formed the basis for issuance of notification
since was quashed by Supreme Court, the notification also
becomes invalid -
Constitution of India, 1950 - Article
F
19(1)(a).
State of Maharashtra issued notification u/s. 95(1)
Cr.P.C., directing forfeiture of every copy of the book titled
"Shivaji - Hindu King in Islamic India". The notification
was issued on the basis of an FIR registered u/ss. 153,
G 153A rls. s. 34 IPC. The notification was challenged and
the same was quashed by High Court. Therefore, the
instant appeal was filed by the State.
Dismissing the appeal, the Court
H
328
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 329
DAMODAR RUPAWATE & ORS.
HELD: 1.1 The power to issue a declaration of A
forfeiture u/s. 95 Cr.P.C. postulates compliance with twin
essential conditions, viz., (i) the Government must form
the opinion to the effect that such newspaper, book or
document contains any matter, the publication of which
is punishable u/s. 124-A or Section 153-A or Section 153B
B or Section 292 or Section 293 or Section 295-A of IPC,
and (ii) the Government must state the grounds of its
opinion. Therefore, it is mandatory that a declaration by
the State Government in the form of notification to the
effect that every copy of the issue of the newspaper, C
book or document be forfeited to Government, must state
the grounds on which the State Government has formed
a particular opinion. A mere citation of the words of the
Section is not sufficient. The power to forfeit a
newspaper, book or document is a drastic power D
inasmuch as it not only has a direct impact upon the due
exercise of a cherished right of freedom of speech and
expression as envisaged in Article 19(1 )(a) of the
Constitution, it also clothes a police officer to seize the
infringing copies of the book, document or newspaper E
and to search the places where they are reasonably
suspected to be found, again impinging upon the right
of privacy. Therefore, the provision has to be construed
strictly and exercise of power under it has to be in the
manner and according to the procedure laid down
therein. [Paras 18 and 19] [347-C-F; 347-H; 348-A-B]
F
1.2 The following legal aspects can be kept in mind
while examining the validity of a notification issued u/s.
95 of Cr.P.C.:
G
(i) The statement of the grounds of its opinion by the
State Government is mandatory and a total absence
thereof would vitiate the declaration of forfeiture.
Therefore, the grounds of Government's opinion must be
stated in the notification issued u/s. 95 Cr.P.C. and while H
330
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
testing the validity of the notification the Court has to
confine the inquiry to the grounds so disclosed;
8
(ii) Grounds of opinion must mean conclusion of
facts on which opinion is based. Grounds must
necessarily be the import or the effect or the tendency of
matters contained in the offending publication, either as
a whole or in portions of it, as illustrated by passages
which the Government may choose. A mere repetition of
an opinion or reproduction of the Section will not answer
C
the requirement of a valid notification. However, at the
same time, it is not necessary that the notification must
bear a verbatim record of the forfeited material or give a
detail gist thereof;
(iii) The validity of the order of forfeiture would
D
depend on the merits of the grounds. The High Court
would set aside the order of forfeiture if there are no
grounds of opinion. However, it is not the duty of the
High Court to find for itself whether the book contained
any such matter whatsoever;
E
(iv) The State cannot extract stray sentences of
portions of the book and come to a finding that the said
book as a whole ought to be forfeited;
(v) The intention of the author has to be gathered
F
from the language, contents and import of the offending
material. If the writing is calculated to promote feelings
of enmity or hatred, it is no defence to a charge u/s. 153A IPC that the writing contains a truthful account of past
events or is otherwise supported by good authority.
G Adherence to the strict path of history is not by itself a
complete defence to a charge u/s. 153-A IPC;
(vi) Section 95(1) Cr.P.C. postulates that the
ingredients of the offences stated in the notification
H should "appear" to the Government to be present. It does
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 331
DAMODAR RUPAWAT!i: & ORS.
not require that it should be "proved" to the satisfaction
of the Government that all requirements of punishing
Sections, including mens rea, were fully established;
(vii) The onus to dislodge and rebut the prima facie
opinion of the Government that the offending publication
comes within the ambit of the relevant offence, including
its requirement of intent is on the applicant and such
intention has to be gathered from the language, contents
and import thereof;
(viii) The effect of the words used in the offending
material 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. The class
Of"readers for whom the book is primarily meant WOUid
also be relevant for judging the probable consequenc~s
of the writing. [Para 25] [353-B-H; 354-A-H; 355-A-B]
Harnam Das vs. State of Uttar Pradesh AIR 1961 SC
1662 - followed.
Narayan Dass lndurakhya vs. State of Madhya Pradesh
1972 (3) SCC 676; The State of Uttar Pradesh vs. Lalai Singh
Yadav 1976 (4) SCC 213; Manzar Sayeed Khan vs. State of
Maharashtra and Anr. 2007 (5) sec 1 - relied on.
Baragur Ramachandrappa and Ors. vs. State of ·
Karnataka and Ors. 2007 (5) SCC 11 - referred to.
A
B
c
D
E
F
Ramesh vs. Union of India and Ors. 1988 (1) SCC 668;
Bhagwati Charan Shukla vs. Provincial Government AIR 1947
Nag 1 ; Nand Kishore Singh and etc. vs. State of Bihar and
G
Anr. AIR 1986 PATNA 98 - cited
2.1 In the instant case, the conditions statutorily
mandated for exercise of power uls. 95 Cr.P.C. are lacking
H
332
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A and, therefore, the action of the Government cannot be
sustained. It is plain from a bare reading of the·
notification that the Government's opinion, is based on
the grounds set out in the preamble to the notification.
The opinion of the State Government is based on the
B factum of registration of an FIR against the author and
others for offences punishable u/ss. 153 and 153-A r/w.
Section 34_ of the IPC. In Manzar Sayeed Khan's case,
Supreme Court while quashing the same FIR which was
referred to in the notification has held that the offending
c articles in the book do not constitute an offence u/s. 153A IPC. It is explicit that the entire edifice of the impugned
notification being based on the registration of the said
FIR, it gets knocked off by the decision of the Supreme
Court in Manzar Syeed Khan's case [Paras 26, 27 and 28]
D [355-H; 356-A,' C-D]
Manzar Sayeed Khan vs. State of Maharashtra and Anr . .
2007 (5) sec 1 - relied on.
2.2 It is not correct to say that only the subjective
E satisfaction of the State Government was called for and
the matter covered by the notification is sufficient and
cannot be assailed. It is manifest that the notification does
not identify the communities between which the book
had caused or is likely to cause enmity. Therefore, it
F cannot be found out from the notification as to which
communities got outraged by the publication of the book
or that the said publication had caused hatred and
animosity between particular communities or groups. The
statement in the notification to the effect that the bopk is
G "likely to result in breach of peace and public tranquillity
and in particular between those who revere Shri
Chhatrapati Shivaji Maharaj and those who may not" is too
vague a gri:;und to satisfy the afore-enumerated tests.
Moreover, the High Court has also noted that the
H Advocate General was unable to produce or disclose any
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 333
DAMODAR RUPAWATE & ORS.
material or information to find out as to which were the A
groups based on religion, race, language or religion or
caste or communities who do not revere Shri Chhatrapati
Shivaji Maharaj. The notification of forfeiture, dated 20th
December 2006, does not fulfil the mandatory
requirements of sub-section (1) of Section 95 Cr.P.C. and
B
is, therefore, invalid. [Para 28 and 29] (357-D; 356-F-H;
357-A-B]
Case Law Reference:
AIR 1961 SC 1662
1912 (3) sec 676
1976 (4) sec 213
2001 (5) sec 1
1988 (1) sec 668
AIR 1947 Nag 1
2001 (5)' sec 11
Followed.
Para 20
C
Relied on.
Relied on.
Relied on.
Cited.
Cited.
Referred to.
AIR 1986 PATNA 98
Cited.
Para 21
Para 22
Para 23
Para 23
Para 23
Para 24
Para 24
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5205 of 2010.
D
E
From the Judgment & Order dated 26.04.2007 of the High
F
Court of Judicature at Bombay in Writ Petition No. 1721 of
2004.
Shekhar Naphade, Sanjay Kharde, Aparajita Singh, Asha
G. Nair, Ravindra Keshavrao Adsure for the Appellants.
Prashant Bhushan, Pravin Satale, Indira Uninair, Naresh
Kumar, Kamini Jaiswal for the Respondents.
The Judgment of the Court was delivered by
G
H
334
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
D.K. JAIN, J. 1. Leave granted.
2. This appeal, by special leave, filed by the State of
Maharashtra and its functionaries, arises out of the judgment
dated 26th April, 2007 delivered by the High Court of Judicature
B
at Bombay in Writ Petition No.1721 of 2004. By the impugned
judgment, passed in an application under Section 96 of the
Code of Criminal Procedure, 1973 (for short "the Code") read
with Article 226 of the Constitution of India, the High Court has
set aside and quashed notification dated 20th December, 2006,
issued in the name of Governor of Maharashtra in exercise of
C
the powers conferred by sub-section (1) of Section 95 of the
Code, directing foneiture of every copy of the book captioned
as "Shivaji - Hindu King in Islamic India" written by one Prof.
James W. Laine.
D
3. The three writ petitioners, who are respondents No.1, 2
and 3 herein, are respectively stated to be a well known lawyer
and a public activist in the Ambedkarite movement, intended
to mobilize the deprived sections of the society; (ii) a well-known
film maker, whose documentaries are stated to be known the
E
world over for their artistic finesse, conveying democratic and
secular message and (iii) a social activist. Respondents No. 4
to 6 impleaded as such vide this Court's order dated 29th
August, 2007 respectively are Prof. James W. Laine, the author
of the book, Oxford University Press, India, the publisher through
F
its Constituted Attorney Mr. Manzar Sayed Khan and Mr. Vinod
Hansraj Goyal; proprietor of Rashtriya Printing Press, Delhi, the
printer of the book.
G
4. For the purpose of appreciation of the questions raised,
the foundational facts may be noticed. These are:
On 28th May, 2003, respondent No. 5, the publisher
entered into an agreement with Oxford University Press, U.S.A.
for publishing in India a paper-bound book entitled "Shivaji -
Hindu King in Islamic India" authored by Prof. James W. Laine
H
(respondent No.4), a Professor of Religious Studies, Macalester
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 335
DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
College, U.S.A. The said book was originally published by A
Oxford University Press, Inc., U.S.A. As per the terms of the
agreement, respondent No.5 agreed to reprint the book without
any changes or deletions. In all, 803 copies of the book were
published i.e. 488 copies in June and 315 copies in October,
2003 and was released in July 2003 and 215 copies were sold
B
in the month of July itself.
On 10th November 2003, the publisher (respondent No.5)
received a letter from four historians whereby the publisher and
the author had been asked to retract the objectionable
statement complained of and tender an apology. Mr. Manzar C
Sayed Khan, expressed regrets for the said statement and
informed the objectors that instructions had been issued to all
his offices in India to immediately withdraw all copies of the
book from circulation. After withdrawal of the book from
circulation, a mob at Pune blackened the face of a Sanskrit D
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.
On 28th December, 2003, the author Prof. James W. Laine
E
sent a fax, apologising for the mistake, if any, committed in
writing the passage and 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 5th January, 2004, a mob
of 100 to 125 persons allegedly belonging to the Sambhaji
F
Brigade ransacked Bhandarkar Oriental Research Institute
(BORI}, Pune and destroyed a large number of books and rare
manuscripts. This incident was also widely reported in the
·press.
On 7th January, 2004, respondent No.4, the author in an
interview, explained the reason for writing the book and
expressed deep anguish at the destruction of rare manuscripts
and books in BORI, Pune. Four days after the alleged incident
G
i.e. on 9th January, 2004, the State of Maharashtra, the
H
336
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
appellant herein, registered a first information report (for short
"FIR") at Deccan Police Station, Pune, against respondents No.
4 to 6 i.e. Prof. James W. Laine, the author, Mr. Manzar Sayed
Khan, the publisher and Mr. Vinod Hansraj Goyal, the printer
of the book under Sections 153, 153-A and 34 of the Indian
s
Penal Code, 1860 (for short "the IPC").
c
D
E
On 15th January, 2004, in exercise of powers conferred
by sub-section (1) oi Section 95 of the Code, the Government
of Maharashtra issued a notification declaring that every copy
of the aforementioned book shall be forfeited to the
Government. The said notification was challenged in the
Bombay High Coun by respondents No.1 to 3 herein. However,
during the pendency of the petition, this notification was
withdrawn and another notification dated 20th December, 2006
was issued. The notification reads as follows:
"GENERAL ADMINISTRATION DEPARTMENT
Mantralaya, Mumbai 400 032,
dated the 20th December, 2006
NOTIFICATION
CODE OF CRIMINAL PROCEDURE, 1973.
No. BAP-2004/422/C.R.113/2004/XXXIV. -
Whereas, Shri Chhatrapati Shivaji Maharaj is revered by
various sections of the people domiciled in the State of
F
Maharashtra;
And Whereas, the Oxford University Press having its
office at YMCA Library Building, Jai Singh Road, New
Delhi 110 001, has in the Year 2003, published a book,
G
captioned as "SHIVAJI - Hindu King in Islamic India"
written by one Shri James W. Laine, having ISBN 019
5667719 containing 127 pages (hereinafter referred to as
"the said Book");
And Whereas, the said author has in his said Book,
H
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 337
DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
made several derogatory references specified in the
A
Schedule appended hereto regarding Shri Chhatrapati
Shivaji Maharaj, in particular about his parentage and the
Bhosale family to which he belonged;
And Whereas, publication of the said Book
B
containing the said derogatory references is prejudicial to
the maintenance of harmony between different groups and
has disturbed the public tranquillity;
And Whereas, the publication and circulation of the
said Book, has not only already resulted in causing enmity
C
between the persons who revere Shivaji and other persons
who may not so revere; but is likely to continuously cause
such enrmty;
And Whereas, the said author has in the
D
"ACKNOWLEDGMENTS" to the said Book has expressed
gratitude to the "Bhandarkar Oriental Research Institute,
Pune" and the librarian and other Scholars therein;
And Whereas, after publication of the said book,
there was agitation against the said "Bhandarkar Oriental
Research Institute, Pune", by members of an association
called as "Sambhaji Brigade" and certain other people
revering Shri Chhatrapati Shivaji Maharaj;
And Whereas, for publication of the said Book, an
offence under sections 153, 153A read with Section 34
of the Indian Penal Code has been registered in the
Deccan Gymkhana Police Station, Pune as C.R. No. 10
of 2004.
E
F
And Whereas, for the reasons aforesaid, the
G
Government of Maharashtra is of the opinion that the
circulation of the said Book containing scurrilous and
derogatory references against Shri Chhatrapati Shivaji
Maharaj has resulted in causing enmity between various
H
A
8
c
D
E
F
G
H
338
SUPREME COURT REPORTS
(2010] 8 S.C.R.
communities and has led to acts of violence and
disharmony and that any further circulation of the said Book ·
is likely to result in breach of peace and public tranquillity
and in particular between those who revere Shri
Chhatrapati Shivaji Maharaj and those who may not; and
cause disturbances to public tranquillity and maintenance
of harmony between such groups and as such the said
Book should be forfeited;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of Section 95 of the Code of Criminal
Procedure, 1973 (2 of 1974), read with Section 21 of the
General Clauses Act, 1897 (10 of 1897) and of all other
powers enabling it in that behalf and in supersession of
the Government Notification, General Administration
Department, No. BAP-2004/422/C.R.113/2004/XXXIV,
dated the 15th January 2004, the Government of
Maharashtra hereby declares that every copy of the said
Book shall be forfeited to the Government.
Schedule
1. "So when Shivaji opened his eyes on the world,
he was nurtured by a mother who had been deserted by
her husband and left to give birth in a hill fortress 60 kms.
North of Pune." (Introduction page 4).
2. "Looking back from the coronation in 1674, the
Killing of Afzal Khan in 1659 was not simply an act of
courage, it was premeditated violence in the service of the
Brahmanic world order." (Chapter 11, The Epic Hero, page
25).
3. 'Thus Shivaji could argue that his family should not
be classified a Kunbi peasant or shudra clan, but was, in
fact, related to Rajput, Aryan Kshatriyas. This led to a
general ambiguity about the status of all Marathas."
(Chapter IV "The Patriot", page 66).
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 339
DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
4. "Here we have a kind of Brahmin prejudice that A
Marathas might make admirably fierce warriors but will not
have prudence of the Brahmins. Thus Ranade argues that
the national movement drew on the talents and loyalty of
all classes, but he maintains the critical importance of the
Brahmins Ramdas and Dadaji in his narrative. (Chapter B
IV "The Patriot", page 76).
5. "In other words, Shivaji's secularism can only be
assured if we see him as motivated less by patriotism than
by simple quest of power." (Chapter IV "The Patriot", page C
77).
6. "Shivaji's parents were married under trying
circumstances.lhey were children, and Jijabai's parents
opposed the match, considering themselves, as Jadhava
(Yadavas), to be too aristocratic to accept a groom from
D
the Bhosles, a clan not accepted as one of ninety-six upper
class Maratha families. (Chapter V "Cracks in the
Narrative", page 91 ).
7. "The repressed awareness that Shivaji had an
E
absentee father is also revealed by the fact that
Maharashtrians tell jokes naughtily suggesting that his
guardian Dadaji Konddev was his biological father."
(Chapter V "Cracks in the Narrative", page 93).
8. "One could assume, as Sarkar did, that he
F
(Shivaji) agreed to go to Aurangazeb's court in Agra
because he had hopes (sic) of being made Mughal
Viceroy of the Deccan. Had he received such an honour
(sic), it is doubtful that he would have planned a coronation
eight years later, but would have conducted his -career G
much as his father did as an Aadil Shahi noble and
Governor of Bangalore." (Chapter V "Cracks in the
Narrative", page 99).
H
340
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
By order and in the name of the Governor of Maharashtra,
MANISHA MHAISKAR,
Joint Secretary to Government."
5. In view of the said development, with the leave of the
8
Court, the petition was amended and challenge to notification
dated 20th December, 2006 was laid mainly on the grounds
that: (1) there was no material to show that the publication of
the book had resulted in disturbance of public tranquillity or
maintenance of harmony between various groups as set out
therein, and (2) the publication does not disclose any offence
C
under Section 153-A of the IPC. Finding substance in both the
grounds, as stated above, by the impugned judgment, the High
Court has quashed and set aside the notification dated 20th
December, 2006 by observing thus:
D
E
F
G
H
"We called upon the learned Associate Advocate General
to show us any material in their possession which would
indicate, that the publication of the book is causing enmity
between various communities and which were those
communities. The learned Associate Advocate General
was unable to produce or disclose any such material or
which were the groups based on religion, race, language
or religion or caste or communities who do not revere
Shree Chhatrapati Shivaji Maharaj. The only answer was,
that the order is based upon the grounds set out in the
notification. In our opinion, to make a legal order under
Section 95 of the Code of Criminal Procedure, apart from
the fact that offence as set out therein must be indicated,
the notification must disclose the grounds based on which
the State has formed an opinion, that the author by his
publication sought to promote or attempted to promote
disharmony or feeling of enmity between various groups
as set out therein. All that is pointed out to us is, that
subsequent to the publication of the book, there was an
agitation against Bhandarkar Oriental Research Institute,
Pune by members of an Association called as "Sambhaji
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 341
DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
Brigade" and certain other people revering Shree A
Chhatrapati Shivaji Maharaj. We pointedly asked the
learned Associate Advocate General whether the
employees of the Bhandarkar Institute, Pune constituted
that group or class. It was fairly conceded before us that it
was not so. Whether a group of employees would
B
constitute a group is not required to be answered. In other
words, there is nothing on record to show that the
publication was likely to promote disharmony or feeling of
enmity between various groups, as likely to cause
disturbance to public tranquillity and maintenance of c
harmony between various groups. Bhandarkar Oriental
Research Institute Pune, enjoys an international reputation
as a research institute in the State of Maharashtra. It was
unfortunate that for whatever reasons the said institute was
vandalized and precious documents destroyed History is 0
the loser."
6. Being aggrieved, the State of Maharashtra and its
functionaries are before us in this appeal.
7. We have heard Mr. Shekhar Naphade, learned Senior E
Counsel appearing on behalf of the petitioners; Mr. Prashant
Bhushan, learned counsel appearing on behalf of the
respondents No.1 to 3 and Ms. Kamini Jaiswal, learned counsel
appearing on behalf of the respondents No.4 to 6.
8. Prefacing his arguments with the historical perspective
F
of rivalry between Brahmins and Marathas, both at the social
and the political level, Mr. Naphade submitted that some of the
words used in the book and culled out in the notification under
different items clearly try to resurrect the social and political
tensions between Brahmins and Marathas and try to drive a G
wedge between the said two communities. It was submitted
that the notification in question clearly sets out that the book
contains derogatory references to Chhatrapati Shivaji Maharaj
and is prejudicial to the maintenance of harmony between
different groups and that in fact it had disturbed the social
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SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
tranquillity of the State. It was contended that the notification has
to be read in its entirety and if it is so read, it clearly refers to
threat to maintenance of harmony between two groups, which
is clearly demonstrated by an attack on Bhandarkar Institute by
Sambhaji Brigade as a sequel to the publication and circulation
B pf the book. While candidly conceding that the operative part
,of the notification does not specifically refer to conflict between
Brahmins and Marathas, learned counsel urged that the
notification has to be read in the historical background and if it
is so read, the only possible conclusion is that the two groups
c referred to in the notification mean Brahmins on the one hand
and Marathas on the other. According to the learned counsel,
it is a settled rule of interpretation that while construing any
notification of this nature, the historical background can be
taken into account.
D
9. Mr. Naphade also contended that in a criminal case the
burden of establishing that a case under Sections 153 and
153-A of the IPC is made out, is on the State, whereas, while
judging the action of the Government under Section 95 of the
Code, the parameters are qualitatively different inasmuch as
E
there is a presumption that the notification is valid and the
burden to show that the decision of the Government to forfeit
the book is without any foundation, is on the writ petitioners.
10. Learned counsel also argued that the subjective
F
satisfaction of the Government as contemplated in Section 95
of the Code cannot be canvassed either in an application under
Section 96 of the Code or in a writ petition under Article 226
of the Constitution. According to the learned counsel, neither
the High Court nor this Court can sit in appeal over the
G
Government's decision to forfeit the book. Relying on the
decision of the Bombay High Court in the case of Gopal
Vinayak Godse Vs. The Union of India and Others1, learned
counsel submitted that if a book has a tendency to create a rift
between the two different communities, then Article 19(1)(a) of
H
1.
Air 1971 Bombay 56.
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 343
DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
the Constitution cannot be pressed into service, even on the
A
ground that the book contains historical truth.
11. As regards the concession of the counsel for the State
before the High Court, as recorded in the impugned judgment,
it is pleaded in the written submissions that the concession so
8
made was clearly under misconception of law and facts. It is
pleaded that the concession made by an Additional Advocate
General is not binding on the Government. In support of the said
stand, reference is made to the decisions of this Court in M. T.
Khan and Others Vs. Govt. of A.P. and Others2 and Periyar
and Pareekanni Rubbers Ltd. Vs. State of Kerala3• Learned C
counsel also placed reliance on the deCision of this Court in
Baragur Ramachandrappa and Others Vs. State of Karnataka
and Others" in support of his proposition t~at Sections 95 and
96 of the Code, when read together, are clearly preventive in
nature and are designed to pre-empt any disturbance to publio- D
order and, therefore, if a forfeiture is called for in public interest, ·
it must have pre-eminence over any individual interest.
12. Per contra, Mr. Prashant Bhushan, while emphasizing
that the book in question, which makes hi~torical investigation
E
to discover and interpret Shivaji, the great hero of 17th Century
in India and Maharashtra in particular, is a scholarly, historical
piece about a much revered and admired historical figure of
India, vehemently submitted that even if there were any critical
comments about Shivaji Maharaj, banning the book would strike
F
· at the very root of the fundamental right to freedom of
expression in a democracy. Jt was asserted that there is nothing
disparaging or malicious about Shivaji and his parents in the
book as alleged in the notification. Learned counsel maintained
that there is no scurrilous matter in the book which is prejudicial . G
to the maintenance of public tranquillity along with law and order
and, in any case, it is the primary responsibility of a Government
2.
(2004) 2 sec 267.
3.
(1991) 4 sec 195.
4.
(2007) s sec 11.
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[2010] 8 S.C.R.
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to prevent mischief-maker from taking the law into their own
hands. In support of the proposition that it is for the State to
maintain public order and the books, films, etc. cannot be
banned merely based on an apprehension of clashes, learned
counsel placed reliance on the decision of this Court in S.
B
Rangarajan Vs. P. Jagjivan Ram and Others5•
13. Learned counsel also urged that on facts in hand, the
conditions requisite for invoking Section 95 of the Code are
not fulfilled inasmuch as apart from the fact that detailed
. grounds have not been provided to the respondents, it is
C
evident from the notification that all that has been stated therein
is that the book contains scurrilous and derogatory references
to Shri Chhatrapati Shivaji Maharaj and that has caused enmity
between various communities and has led to acts of violence
and disharmony and that any further circulation of the book is
D
likely to result in breach of peace and public tranquillity and in
particular, between those who revere Shri Chhatrapati Shivaji
Maharaj and those who may not. It was also pleaded that the
notification is neither based on grounds that offence under
Section 153-A of the IPC was made out nor it has been shown
E
that how the references are derogatory or scurrilous and above
all, even the communities, who were alienated from each other
or whose religious beliefs were hurt, have not been named or
identified.
F
14. Learned counsel then contended that paragraphs in the
book, complained of, do not constitute an offence either under
Section 153 or under Section 153-A of the IPC as in the
notification there is no allegation that the book has caused or
likely to cause enmity between different classes of the society
G or has created a situation of hatred between or among
particular religions/castes/social groups as contemplated in
Section 153-A of the IPC. It is pointed out that the notification
does not even identify the communities, which, according to the
Government, were allegedly alienated from each other or
H
5.
(1989) 2 sec 574.
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 345
DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
whose religious beliefs had been wounded. Reliance was
A
placed on the decision of this Court in Manzar Sayeed Khan
Vs. State of Maharashtra and Another6, relating to the same
bool<, wherein, while holding that the book did not make out an
offence under Section 153-A of the IPC, the FIR registered
against the Author of the book (respondent No.4) was quashed.
B
Reliance was also placed on the decisions of this Court in Bilal
Ahmed Kaloo Vs. State of A.P. 7 and Harnam Das Vs. State
of Uttar Pradesh8 . Learned oounsel thus asserted that there
was no justification whatsoever for ordering forfeiture of the
book and the impugned notification is a gross misuse of c
Section 95 of the Code.
15. Before evaluating the rival contentions, a brief
reference to the relevant provisions of the Code and the
precedents on the point would be necessary.
16. Section 95 of the Code reads as follows:
"95. Power to declare certain publications forfeited and
to issue search-warrants for the same.-(1) Where-
(a) any newspaper, or book, or
(b) any document,
D
E
F
wherever printed, appears to the State Government to
contain any matter the publication of which is punishable
under section 124A or section 153A or section 1538 or
section 292 or section 293 or section 295A of the Indian
Penal Code (45 of 1860), the State Government may, by
notification, stating the grounds of its opinion, declare every
copy of the issue of the newspaper containing such matter,
G
and every copy of such book or other document to be
forfeited to Government, and thereupon any police officer
6.
(2007) 5 sec 1.
· 7.
(1997) 7 sec 431.
8.
AIR 1961 SC 1662.
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346
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[2010] 8 S.C.R.
A
may seize the same wherever found in India and any
Magistrate may by warrant authorise any police officer not
below the rank of sub-inspector to enter upon and search
for the same in any premises where any copy of such issue
or any such book or other document may be or may be
B
reasonably suspected to be.
(2)
In this section and in section 96,-
(a) "newspaper" and "book" have the same
meaning as in the Press and Registration of Books
C
Act, 1867 (25 of 1867);
D
E
F
G
H
(b) "document" includes any painting, drawing or
photograph, or other visible representation.
(3)
No order passed or action taken under this section
shall be called in question in any Court otherwise than in
accordance with the provisions of section 96."
17. Section 96 of the Code, relevant for the purpose, is
as under:
"96. Application to .High Court to set aside declaration of
forfeiture. -(1) Any person having any interest in any
newspaper, book or other document, in respect of which
a declaration of forfeiture has been made under section
95, may, within two months from the date of publication in
the Official Gazette of such declar!'ltion, apply to the High
Court to set aside such declaration on the ground that the
issue of the newspaper, or the book or other document,
in respect of which the declaration was made, did not
contain any such matter as is referred to in sub-section (1)
of section 95.
(2)
(3)
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 347 ·
DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
(4)
The High Court shall, if it is not satisfied that the issue
A
of the newspaper, or the book or other document, in
respect of which the application has been made,
contained any such matter as is referred to in sub-section
(1) of section 95, set aside the declaration of forfeiture.
(5)
"
18. Section 95 of the Code is an enabling provision, which,
in the circumstances enumerated in the Section, empowers the
State Government to declare that copy of a newspaper, book
B
or document be forfeited to the Government. It is evident that C
the provision deals with any newspaper, book or document
which is printed. The power to issue a declaration of forfeiture
under the provision postulates compliance with twin essential
conditions, viz., (i) the Government must form the opinion to the
effect that such newspaper, book or document contains any D
matter, the· publication of which is punishable under Section
124-A or Section 153-A or Section 153-8 or Section 292 or
Section 293 or Section 295-A of the IPC, and. (ii) the
Government must !':tate the grounds of its ,opinion. Therefore, it
is mandatory that a declaration by the State Government in the
E
form of notification, to the effect that every copy of the issue of
the newspaper, book or document be forfeited to Government,
must state the grounds on which the State Government has
formed a particular opinion. A mere citation of the words of the
Section is not sufficient. Section 96 of the Code entitles any
F
person having any interest in any newspaper, book or other
document, in respect of which a declaration of forfeiture is made
under Section 95 of the Code, to move the. High Court for
setting aside the declaration on the ground that it does not
contain any such matter as is referred to in sub-section (1) of G
Section 95.
19. Undoubtedly, the power to forfeit a newspaper, book
or document is a drastic power inasmuch as it not only has a
direct impact upon the due exercise of a cherished right of
freedom of speech and expression as envisaged- in Article -·"H
348
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[2010] 8 S.C.R.
A
19(1)(a) of the Constitution, it also clothes a police officer to
seize the infringing copies of the book, document or newspaper
and to search places where they are reasonably suspected to
be found, again impinging upon the right of privacy. Therefore,
the provision has to be construed strictly and exercise of power
B
under it has to be in the manner and according to the procedure
laid down therein.
20. The scope and width of a somewhat similar provision
contained in Section 99A of the Code of Criminal Procedure,
1898 (for short "the 1898 Code") was examined by a
C
Constitution Bench of this Court in Harnam Das Vs. State of
Uttar Pradesh (supra). Speaking for the majority, A.K. Sarkar,
J. held that in that case though the order of forfeiture passed
by the Government had set out its opinion that the books
contained matters the publication of which was punishable
D
under Sections 153-A and 295-A of the IPC but it did not state,
as it should have, the grounds of that opinion. Striking down
the order of forfeiture, the learned judge observed as under:
E
F
G
H
"(4)
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 concerning which the
order is proposed to be made, contains "any matter the
publication of which is punishable under Section 124-A or
Section 153-A or Section 295-A of the Penal Code."
Section 124-A deals with seditious matters, Section 153A with matters promoting enmity between different classes
of Indian citizens and Section 295-A 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
Governr-.ent's opinion the books contained matters the
publication of which was punishable under Sections 153A and 295-A of the Penal Code. It did not, however, state,
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 349
DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
as it should have, the grounds of that opinion. So it is not A
known which communities were alienated from each other
or whose religious beliefs had been wounded according
to the Government, nor why the Government thought that
such alienation or offence to religion had been caused."
B
Thus, the Court observed that in the notification it was not
known which communities were alienated from each other or
whose religious beliefs had been wounded and why the
Government thought that such alienation or offence to religion
had been caused. It was held that if the grounds of opinion are C
not stated, the order of forfeiture must be set aside, because
then the Court cannot be satisfied that the grounds given by the
Government justify the order. Inter alia observing that 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 could justify that opinion, the Court also noted that it D
is not the duty of the High Court to find for itself whether the
book contained any such matter.
21.