Manzar Sayeed Khan Vs. State of Maharashtra & Anr  Insc 367 (5
K. G. Balakrishnan, Lokeshwar Singh Panta & D. K. Jain
CRIMINAL APPEAL NO. 491 OF 2007 (Arising out of S.L.P. (Crl.) No. 2373 OF
2004) W I T H CRIMINAL APPEAL NO. 496 OF 2007 (Arising out of S.L.P. (Crl.) No.
2512 OF 2004 Vinod Hansraj Goyal ..... Appellant Versus State of Maharashtra
..... Respondent Lokeshwar Singh Panta, J.
Manzar Sayeed Khan and Vinod Hansraj Goyal have filed these two appeals
against the common order dated 06.05.2004 of a Division Bench of the High Court
of Judicature at Bombay in Criminal Writ Petition No.280 of 2004 and 370 of
2004. By the impugned order, the High Court vacated the interim order granted
on 23.02.2004 and directed the Crime Branch of the State of Maharashtra to
complete the investigation in FIR No.10 of 2004 registered at the Deccan Police
Station, Pune, against the appellants and author of the book titled
"Shivaji Hindu King in Islamic India" under Sections 153, 153A and
34 of the Indian Penal Code [for short `IPC'].
The brief facts in both these appeals are practically identical.
Manzar Sayeed Khan, appellant herein, is a constituted Attorney of the
Oxford University Press India, having been appointed on 21.06.2001 for a period
of three years or for so long as he is employed as the Managing Director of the
Oxford University Press India, which is a department of the University of Oxford,
a legal entity with charitable status. It furthers the University's objective
of excellence in research, scholarship and education, by publishing worldwide
in Oxford, New York, Auckland, Bangkok, Buenos Aires, Cape Town, Chennai, Dar-
es-Salaam, Delhi, Hong Kong, Istanbul, Karachi, Kolkata, Kuala Lumpur, Madrid, Melbourne,
Mexico City, Mumbai, Nairobi, Sao Paulo, Shanghai, Taipei, Tokyo, Toronto,
etc. The Oxford University Press India entered into an agreement for five years
with the Oxford University Press, USA, for publishing in India a paper bound
book entitled "Shivaji :
Hindu King in Islamic India" authored by Prof. James W. Laine, a
Professor of Religious Studies, Macalester College, USA, on 28.05.2003. The
said book was originally published by the Oxford University Press Inc., USA. As
per the terms of the agreement, the Oxford University Press, India agreed to
reprint the book without any changes or deletions. In all, 803 copies of the
book were published, i.e., 488 copies in June and 315 copies in October 2003.
The book was released in July 2003.
215 copies had been sold in July, 25 copies in August, 29 copies in
September, 52 copies in October and 19 copies in November from the records
available from the States of Maharashtra, Gujarat and Karnataka.
The Oxford University Press, India and the appellants had received a letter
on 10.11.2003 from four Historians whereby the publisher and the author had
been asked to retract the objectionable statement complained of and tender an
apology. The Oxford University Press, India through appellant- Manzar Sayeed
Khan, expressed regrets for the said statement and informed the objectors that
instructions had been issued to all its offices in India to immediately
withdraw all copies of the book from circulation. The copies of the letters
dated 10.11.2003 and 21.11.2003 are annexed with the appeals and marked as
Annexure P-3(Colly.). It is the case of the appellants that sometime after
withdrawal of the book from circulation, the appellants learnt that a mob at
Pune had blackened the face of a Sanskrit Scholar, Shri Shashikant Bahulkar
whose name appeared in the acknowledgement of the book, having helped the
author Prof. James W. Laine, by providing him with some information during his
visit to Pune.
This incident was widely reported in the press. Prof. James W.
Laine was pained by the unforeseen incident. On 28.12.2003, he sent a fax
apologizing for the mistake, if any, committed in writing the passage and
further stated that he only was responsible for the said statement written in
the book, and the publisher was not at all responsible for the same. On
05.01.2004, a mob of 100 to 125 persons allegedly belonging to the Shambhaji
Brigade ransacked the Bhandarkar Oriental Research Institute (BORI), Pune, and
destroyed 18,000 books and 30,000 rare manuscripts. This incident was also
widely reported in the press.
Prof. James W. Laine had given an interview to the 'Mid- Day' (Newspaper) on
07.01.2004 and had explained the reason for writing the book and expressed deep
anguish at the destruction of books and rare manuscripts in BORI, Pune.
Four days after the alleged incident, the State of Maharashtra, respondent
herein, registered a First Information Report No.
10 of 2004 at the Deccan Police Station, Pune, on 09.01.2004 against the
author Prof. James W. Laine and the appellants herein - the publisher and the
printer of the book, under sections 153, 153A and 34 of the IPC. During the
course of the investigation of the case, a Senior Police Inspector, Deccan
Police Station, Pune, sent a communication dated 12.01.2004 [Annexure
P-6(Colly.)] to the Manager, Oxford University Press, Vijaynagar, Pune with a
copy endorsed to Managing Director, Oxford University Press, New Delhi asking
for a copy of the book since no copy of the book was available in the market.
In response to the said letter, the Manager, Oxford University Press, Pune vide
letter dated 14.01.2004 (Annexure P-6) had sent one copy of the book to the
Senior Police Inspector, Deccan Police Station, Pune. Thereafter, the Maratha
Vikas Sangh filed a Public Interest Litigation (PIL) in the Bombay High Court
demanding action to be taken for extradition of Prof. James W. Laine and some
coercive action against the publisher etc., of the book. A team of Policemen
had arrested Vinod Hansraj Goyal, appellant, a partner of the Rashtriya
Printing Press, Shahdara, Delhi, for having printed the book.
He was granted 6 days transit remand by Metropolitan Magistrate, Court No.
35, Shahdara, Delhi (now Karkardoma Court). When the appellant-Manzar Sayeed
Khan came to know about the arrest of Vinod Hansraj Goyal, he filed an
application for grant of an anticipatory bail in the High Court of Judicature,
at Bombay. On 03.02.2004, the High Court granted 2 weeks' time to the appellant
to approach the concerned court for appropriate relief.
Both the appellants filed separate Criminal Writ Petition Nos. 280 of 2004
and 370 of 2004 in the High Court of Judicature, at Bombay, praying inter alia
for quashing the investigation in FIR No. 10 of 2004 lodged at the Deccan
Police Station, Pune, and summoning of the records and proceedings before the
Court of Magistrate and quashing the same.
The High Court issued a notice to the State of Maharashtra on 14.02.2004 and
the matter was adjourned to 23.02.2004 directing the State not to arrest the
appellant Manzar Sayeed Khan. On 23.02.2004, no reply was filed by the State
and after hearing the learned counsel for the parties, a Division Bench of the
High Court was pleased to issue rule returnable within 4 weeks and stayed all
the proceedings in FIR No. 10/2004 till then. The matter was listed on
23.03.2004 and on that date, the State of Maharashtra had filed an affidavit in
reply. The writ petitions were taken up for arguments on 07.04.2004 and
08.04.2004 and later on adjourned to 14.04.2004. It appears from the record
that the writ petitions were heard on 15.04.2004 and 16.04.2004 when it was
felt by the learned Judges that it would be better to settle the controversy
finally at that stage expeditiously and in the interest of the State to put the
matter to an end instead of allowing the controversies to precipitate and,
therefore, the publisher's counsel was requested to try and establish contact
with the author and obtain his consent whether he was willing to withdraw the
allegedly objectionable portion from the book published all over the world and
he should submit an affidavit as per the suggestions orally observed in the
court room. It was also suggested that if the affidavit was obtained, it would
be without prejudice to the rights of the author, printer and publisher and the
affidavit would be used only to enable the State to close the matter and put an
end to the entire controversy. The appellants stated that a draft affidavit was
placed before the learned Judges of the High Court in the presence of all the
learned counsel representing the parties, wherein certain corrections were made
in hand and the learned counsel were directed to incorporate the corrections
and submit the affidavit to the counsel of the State to enable him to obtain
instructions from the Government and in the meantime, the publisher would get
the original affidavit signed and attested from USA, where the author was
residing. The matter was adjourned to 27.04.2004 to give sufficient time to the
author to file the original affidavit. The signed affidavit of the author was
handed over to the learned counsel representing the State in advance before the
next date of hearing of the writ petitions on 27.04.2004. When the matters came
up for hearing before the High Court, the attested and authenticated copies of
the affidavit were presented before the learned Judges without prejudice to the
defence of the parties.
The counsel for the State appeared, but he expressed his inability to give
any definite reply and made a statement in the Court that there was a very
positive response to the affidavit filed by the author and since the decision
had to be taken at the highest level and as the Chief Minister and the Deputy
Chief Minister both were busy with the General Assembly Elections in the State
of Maharashtra, he would require few more days time before making any
statement. On the request of the learned counsel for the State, the matter was
adjourned to 30.04.2004.
On 30.04.2004, the counsel for the State of Maharashtra filed an affidavit
of the Principal Secretary (Special), Government of Maharashtra, Home
Department, submitting that the State would want to investigate whether there
was an organised attempt to destroy the social tranquility or was it a freak
occurrence. In the said affidavit, it was stated that one passage of the book
had hurt the sentiments of the people of all sections of the society and that
it would not be in the larger public interest to drop the charges. Since the
State had expressed its inability to accept the suggestions of the Court and
the compromise formula, the matter was heard on merits.
The arguments could not be concluded on 30.04.2004 and the petitions were
adjourned to 05.05.2004.
On 05.05.2004, the counsel for the appellant submitted written submissions
that no offence under Section 153 and 153A was made out against the appellants.
During the pendency of the writ petitions, interim order of stay of further
proceedings in FIR No. 10 of 2004 was granted. The affidavit dated 16.04.2004
filed by Prof. James W. Laine, the author of the book, was taken on record on
27.04.2004 and the affidavit dated 20.04.2004 filed by the appellant-publisher
of the book, was also taken on record on 27.04.2004. The High Court on
06.05.2004 recorded an order that the undertakings given by Prof. James W.
Laine as well as by the appellants were accepted by the Court, but the interim
stay order granted on 23.02.2004, whereby further proceedings in the FIR were
stayed, was vacated holding that the investigation was not complete and the
Court has to see all the statements recorded after full investigation. The
Criminal Writ Petitions filed by the appellants were kept pending. Now, the
order dated 06.05.2004 is impugned before us by the appellants.
We have heard the learned counsel for the parties and perused the material
Mr. Soli J. Sorabjee, learned senior counsel appearing on behalf of Manzar
Sayeed Khan, vehemently contended that on reading of the FIR it becomes clear
that it does not disclose any offence under Sections 153, 153A and 34 of IPC
since Section 153A requires that there should be some element of mens rea in
doing acts contemplated in the Section. He contended that the FIR was
registered by the Senior Police Officer without even going through the
offending contents of the paragraph of the book as it is an admitted position
that the book was supplied to the Investigating Officer by the publisher on his
demand after the registration of FIR. He next contended that there is no
allegation in the FIR to prove prima facie that a paragraph complained causes enmity
between different classes of the society or creates any situation of hatred
between or among the different religions/castes/social groups as contemplated
in Section 153A, whereas Section 153 IPC is not at all attracted in this case.
According to the learned senior counsel, it was during the review of the
historical facts that the allegedly offending paragraph was written and as soon
as it was brought to the notice of the appellants and the author that one
section of the society had raised some objections in regard to the statement in
one passage of the book, the entire stock of the book was withdrawn immediately
from the market in the country. He lastly submitted that the book was written
with its objective to review the historical facts of a great historical figure,
therefore, the book has to be read and examined as a whole and a solitary
paragraph does not provide any cogent ground to file FIR against the
appellants, being publisher and printer of the book.
Ms. Kamini Jaiswal, learned counsel appearing on behalf of the appellantVinod
Hansaj Goyal has adopted the arguments advanced by Mr. Soli J. Sorabjee,
learned senior counsel.
Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the State
of Maharashtra, contended that prima facie the FIR discloses the commission of
the offence under Section 153A of IPC against the appellants and the author of
the book as the offensive paragraph in the book is the wanton piece of writing
and had disturbed the social tranquility of the State. According to the learned
senior counsel, the order of the High Court directing further investigation
does not suffer from any perversity or illegality and the State, as a conscious
keeper of law and order, would want to investigate the case whether there was
any attempt to disturb any social tranquility in the State and other parts of
the country because of writing the alleged offensive paragraph in the book. He
further submitted that everything which is an offence or which is prohibited by
law or which furnishes ground for a civil action is 'illegal' as defined under
Section 43 of IPC. Hence, according to learned senior counsel, after the
investigation of the case is complete, the State Government would be in a
better position to have an objective assessment of the whole situation and take
appropriate action on the subject-matter in controversy and at this initial
stage no relief should be granted to the appellants as prayed for.
We have given our thoughtful consideration to the respective contentions of
the learned counsel for the parties.
The question to be decided now is whether the paragraph complained of would
attract the penal consequences envisaged in Section 153A of IPC. Section 153A
of IPC was amended by the Criminal Law (Amendment) Act, 1969 (Act 35 of 1969).
It consists of three clauses of which clauses (a) and (b) alone are material
for the case on hand, which read as under:
"153A. Promoting enmity between different groups on grounds of
religion, race, place of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony.(1) Whoever- (a) by words, either spoken
or written, or by signs or by visible representations or otherwise, promotes or
attempts to promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever, disharmony or
feelings of enmity, hatred or ill-will between different religious, racial,
language or regional groups or castes or communities, or (b) commits any act
which is prejudicial to the maintenance of harmony between different religious,
racial, language or regional groups or castes or communities, and which
disturbs or is likely to disturb the public tranquility, or (C) * * * shall be
punished with imprisonment which may extend to three years, or with fine, or
Section 153A of IPC, as extracted hereinabove, covers a case where a person
by words, either spoken or written, or by signs or by visible representations
or otherwise, promotes or attempts to promote, disharmony or feelings of
enmity, hatred or ill-will between different religious, racial, language or
regional groups or castes or communities or acts prejudicial to the maintenance
of harmony or is likely to disturb the public tranquility. The gist of the
offence is the intention to promote feelings of enmity or hatred between
different classes of people. The intention to cause disorder or incite the
people to violence is the sine qua non of the offence under Section 153A of IPC
and the prosecution has to prove prima facie the existence of mens rea on the
part of the accused. The intention has to be judged primarily by the language
of the book and the circumstances in which the book was written and published.
The matter complained of within the ambit of Section 153A must be read as a whole.
One cannot rely on strongly worded and isolated passages for proving the charge
nor indeed can one take a sentence here and a sentence there and connect them
by a meticulous process of inferential reasoning.
In Ramesh Chotalal Dalal v. Union of India & Others [AIR 1988 SC 775],
this Court held that TV serial "Tamas" did not depict communal
tension and violence and the provisions of Section 153A of IPC would not apply
to it. It was also not prejudicial to the national integration falling under
Section 153B of IPC. Approving the observations of Vivian Bose, J. in Bhagvati
Charan Shukla v. Provincial Government [AIR 1947 Nagpur 1], the Court observed
that the effect of the words must be judged from the standards of reasonable,
strong-minded, firm and courageous men, and not those of weak and vacillating
minds, nor of those who scent danger in every hostile point of view. It is the
standard of ordinary reasonable man or as they say in English Law, "the
man on the top of a clapham omnibus". (Emphasis supplied).
Again in Bilal Ahmed Kaloo v. State of A.P. [(1997) 7 SCC 431], it is held
that the common feature in both the Sections, viz., Sections 153A and 505 (2),
being promotion of feeling of enmity, hatred or ill-will "between
different" religious or racial or linguistic or regional groups or castes
and communities, it is necessary that at least two such groups or communities
should be involved. Further, it was observed that merely inciting the feeling
of one community or group without any reference to any other community or group
cannot attract either of the two Sections.
Prof. James W. Laine, the author of the book, has exercised his reason and
his own analytical skills before choosing any literature which he intends to
include in his book. Even if the appellant-Manzer Sayeed Khan, a constituted
Attorney of the Oxford University Press, India and the appellant-Vinod Hansraj
Goyal, Proprietor of the Rashtriya Printing Press, Shahdara, Delhi, or the
persons whose names are mentioned in the acknowledgement by the author, have
provided information for the purpose, including the said paragraph in the book,
it is important and worth observing that the author has mentioned that BORI,
Pune has been his scholarly home in India and many people therein helped him
for collecting the material. The author has given the names of many persons,
who had helped him in one way or the other and enlightened him about the
history of the historical hero 'Shivaji'. The author has also mentioned in the
book about the International Conference on Maharashtra, etc., which has given
him a lot of material for inclusion in his book. As it appears from the
records, BORI, Pune was established almost 90 years back and it has a great
tradition of scholarly work. It is very improbable to imagine that any serious
and intense scholar will attempt to malign the image of this glorious
Institute. The author thought his work to be worth of dedication to his mother
Marie Whitwell Laine, which was purely a scholarly pursuit and without any
intention or motive to involve himself in trouble. It is the sole
responsibility of the State to make positive efforts to resolve every possible
conflict between any of the communities, castes or religions within the State
and try every possible way to establish peace and harmony within the State
under every and all circumstances.
In State of Haryana v. Chaudhary Bhajanlal [AIR 1992 SC 604], this Court has
observed that an FIR can be quashed if it does not disclose an offence and
there is no need for any investigation or recording of any statement.
In the result, for the above-said reasons, the respondents shall not proceed
against Professor James W. Laine, the author of the book, for offences under
Sections 153, 153A and 34 of the IPC being the subject matter of F.I.R. No. 10
of 2004 registered at the Deccan Police Station, Pune.
Both the appeals accordingly stand disposed of.