(2015) 390 KLW 464

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH 

WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936 

Crl.MC.No. 3984 of 2010

PETITIONER(S)

1. K.K.ABDUL ALI, PRESIDENT, BHARATHEEYA YUKTHIVADI SANGHAM, STATE COMMITTEE KOLLAM - 691 021.

2. K.V.SYED MOHAMMED, VICE PRESIDENT, BHARATHEEYA YUKTHIVADI SANGHAM, STATE COMMITTEE, KOLLAM - 691 021.

3. SURENDRAN, VADAKKESSERIL HOUSE, AANAPPARA, PULPALLY P.O., WAYANAD DISTRICT. 

BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU SRI.G.RENJITH SMT.AMMU CHARLES SRI.S.M.PRASANTH 

RESPONDENT(S)

1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

2. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME (SS A) DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 

BY SRI.C.S.MANILAL, PUBLIC PROSECUTOR

O R D E R

Thottathil B.Radhakrishnan, J.

1.This application under sub-section (1) of 

Section 96 of the Code of Criminal Procedure, 1973

"Code", for short, is placed before the Special Bench of three Judges in conformity with sub-section (2) of that Section which prescribes that such an application shall be heard by a Bench so constituted.

2.Apart from the impugned Annexure-A, GO(Ms.) No.170/2010/Home dated 28.07.2010, we have no other materials on record along with the papers. We record that the book in relation to which the impugned order of the Government is shown to have been issued under Section 95 of the Code, is placed before us in sealed covers. Having looked into the substance of the contentions and the quality of the impugned order, we heard the learned Senior Advocate for the petitioners and the learned advocate acting on the directions of the learned Public Prosecutor, hereinafter called as 'public prosecutor'.

3.The learned Senior counsel for the petitioners argued that the impugned order, in no manner, satisfies the procedures and prescriptions in Section 95 of the Code and it does not contain the expression of any Government decision. He says that there is nothing on the face of the impugned order to show that "the Government was either satisfied" or "it had appeared to the Government", that the impugned action has to be taken. He, therefore, argued that the issuance of the impugned notification is without jurisdiction in terms of sub-section (1) of Section 95 of the Code. He further criticised the absence of any opinion having been expressed in the impugned order regarding the Government's decision in the matter and pointed out that no grounds have been stated in support of any such opinion. He also argued that whatever is stated in the second paragraph of the impugned notification, is merely an attempt to superficially make reference to and state 

Section 153 A of Indian Penal Code, 1890

for short, "IPC", and even that has not been done in satisfaction of any of the limbs of that Section. He made reference to the decisions of the Supreme Court in 

State of Maharashtra v. Sangharaj Damodar Rupawate [(2010) 7 SCC 398] 

and 

Baragur Ramachandrappa v. State of Karnataka [(2007) 5 SCC 11] 

and the decision of the Full Bench of the Bombay High Court in 

Sangharaj D.Rupawate v. Nitin Gadre [2007 Cri.LJ 3860]

4.Per contra, the learned public prosecutor very persuasively attempted to make us look into the Government files and the materials, on which, according to him, the opinion has been arrived at and grounds are stated to be available. He says that the expression as is made in the impugned order is sufficient, since, the reasons are found and contained in the files. In an attempt to say that there need not be any elaborate order, he pointed out the decision in 

State of U.P. v. Lalai Singh [AIR 1977 SC 202]

where the Hon'ble Supreme Court clarified that it is not necessary to elaborate on the opinion or grounds in an order of forfeiture under Section 95 of the Code.

5.At the outset, we may notice that this criminal miscellaneous case is filed invoking Section 96 as also Section 482 of the Code. Sub-section (3) of Section 95 provides that no order passed or action taken under Section 95 shall be called in question in any court otherwise than in accordance with the provisions of Section 96. This, obviously, means that no jurisdiction otherwise than under Section 96 is available through Section 482. 

For support, see the decision in 

Aundal Ammal v. Sadasivan Pillai [AIR 1987 SC 203]

We, therefore, raised a query in that regard and the learned Senior counsel for the petitioners has fairly stated that in the light of sub-section (3) of Section 95, the case need be treated only under Section 96 and not under Section 482 of the Code. We do not see any other jurisdiction being available. We, therefore, hold that an order passed or action taken under Section 95 of the Code cannot be questioned before any court otherwise than by an application under Section 96, subject, of course, to the distinctions made in Aundal Ammal (supra) as to the constitutional powers of superior courts.

6.Having regard to the nature of the arguments, we deem it appropriate to quote the entire notification, which is under challenge. Though the explanatory note does not form part of the notification, we quote that also, for the purpose of continuity. 

7.Among the precedents cited by the learned counsel for the parties, we deem it appropriate to first refer to the decision in Sangharaj D. Rupawate (supra), in which, the Hon'ble Supreme Court held as follows : 

8.In the aforenoted precedent, the Apex Court stated that no inflexible guidelines could be laid down to test the validity of a notification issued under Section 95 of the Code. However, the legal aspects which have to be kept in mind while examining the validity of a notification under Section 95 have been enumerated in paragraph No.37 of that judgment. Of them, principles of law stated at serial Nos.37(iv) to 37(ix) would become relevant only in cases where the first three principles at serial Nos.37(i) to (iii) are first applied to examine as to whether the notification withstands the tests of those three principles, which are as follows: 

9.Reverting to paragraph No.43 of the judgment in Sangharaj D. Rupawate (supra), the concluding findings indicate that a mere statement that the book is likely to result in breach of peace and public tranquillity and in particular between those who revere a particular person and those who may not, is too vague a ground to satisfy the enumerated tests. For support, see paragraph No.43 of that precedent, which is as follows: 

10.With the aforesaid in mind, on an examination of the impugned notification, all that we can understand from its opening paragraph is that it has been brought to the notice of the Government that the book contains highly objectionable and provocative writings which promote religious disharmony or feelings of enmity, hatred or illwill between different religious groups. The second paragraph proceeds to say that the publication of such a document is likely to prejudice the maintenance of religious harmony which is an offence punishable under Section 153A of the IPC. Firstly, there is nothing in the notification which amounts to an expression that it appears to the State Government that the publication contains highly objectionable and provocative writings which promote religious disharmony or feelings of enmity, hatred or illwill between different religious groups. There is no formulation of opinion by the State Government reflected in the notification. Be that as it may, no opinion by the State Government is stated, though that is mandatory. Total absence of such expression of opinion, therefore, vitiates the impugned declaration of forfeiture. Grounds of the opinion have to be stated in the notification. There is no such ground stated in the impugned notification. The grounds of opinion must mean conclusion of and on facts, on which the opinion is based. A mere repetition of an opinion or reproduction of the relevant statutory provision will not answer the requirement of a valid notification, though it is not necessary that the notification must bear a verbatim record. The validity of the order would depend upon the merits of the grounds. The High Court would set aside the order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion it cannot be satisfied that the grounds justify the order. Therefore, in terms of the law laid down in Sangharaj D. Rupawate (supra), the impugned order has necessarily to fail.

11.Now, we proceed to deal with the request of the learned public prosecutor to look into the Government files and also the reference made by him to the decision of Supreme Court in Lalai Singh (supra). Referring to paragraph No.9 of that decision as reported in AIR, the learned public prosecutor submitted that the reasons and grounds based on the primary facts would differ from case to case and that a statement, even if it is laconic, may be sufficient. However, we see that the last sentence even in that paragraph is that "An order may be brief but not a blank." That precedent is also authority for the position as to the well settled principle that where there is a statutory duty to speak, silence is lethal sin for a good reason disclosed by the scheme of the fasciculus of sections. Here and now, we may revert to Sangharaj D. Rupawate (supra) to notice that if there are no grounds of opinion stated in the notification under Section 95, there is no manner in which the High Court can be satisfied about the grounds given by the Government to justify the order. This fundamental reason is sufficient for us to dissuade ourselves from accepting the request of the learned public prosecutor to look into the Government files, the existence of which itself is not reflected or expressed anywhere in the notification or elsewhere in the proceedings.

12.Before parting, we may also record that the locus standi of the petitioners before us is not specifically challenged in this proceedings by the State Government. Nor are we persuaded to hold any lack of locus standi, in view of the well settled position of law as laid down in the decision of the Bombay High Court in 

Sangharaj D. Rupawate v. Nitin Gadre [2007 Cri.LJ 3860]

with which we are in complete agreement. 

In the result and for the reasons stated above, this criminal miscellaneous case is allowed setting aside the impugned declaration made under Section 95 of the Code. The materials produced in sealed covers shall be duly returned. No costs.