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CASE NO.: Appeal (crl.)  491 of 2007

PETITIONER: Manzar Sayeed Khan

RESPONDENT: State of Maharashtra & Anr

DATE OF JUDGMENT: 05/04/2007

BENCH: K. G. Balakrishnan, Lokeshwar Singh Panta & D. K. Jain

JUDGMENT: J U D G M E N T 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.

       Leave granted.

       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 \026  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

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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

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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

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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 on record.           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 appellant\026Vinod Hansaj Goyal has adopted the  arguments advanced by Mr. Soli J. Sorabjee, learned senior  counsel.           Mr. Shekhar Naphade, learned senior counsel appearing

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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.\027(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 with both.       

       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

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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

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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.