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Case Number

Criminal Misc. No. 107 of 1962

Advocates

P.A. Mehta
Shamshul Hassan
and S. Ali Ahraad
K.P. Verma and Ramananda Sinha
for State

Judges

Misra
U.N Sinha
S.P Singh, JJ.

Acts

Section 153-A of the Indian Penal Code 1860

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Smart Summary

Court Opinion Summary

Factual and Procedural Background

This opinion concerns an application filed by Ghulam Sarwar Figar under Section 99-B of the Code of Criminal Procedure (CrPC) seeking to set aside an order of forfeiture relating to a book titled "Nawa-i-Kashmir".

The petitioner is described as a journalist and publisher operating as Nafi and Company, Calcutta. He compiled speeches of Sheikh Mohammad Abdullah delivered between 8 January and 29 April 1958 into a book entitled "Nawa-i-Kashmir", printed at the Taj Press, Calcutta, and published by Nafi and Co.

By a notification dated 6 November 1961, issued by the Government of West Bengal (notification number in the record corrected to 14424), the book was declared forfeited under Section 99-A of the CrPC. That West Bengal notification was published in a Gazette Extraordinary dated 8 November 1961; the petitioner became aware of that West Bengal publication on 11 January 1962 and therefore did not apply to the Calcutta High Court within two months of that publication.

The Government of Bihar republished the West Bengal notification in the Bihar Gazette published on 3 January 1962. The Bihar notification is recorded as No. NA/Press. O.S/1011/61-14424.C, dated 29 November 1961. The Bihar notification repeated the allegation that the book (with particular reference to pages 39, 45, 64, 164, 167, 171, 198 and 202) contained matters deliberately and maliciously intended to promote enmity and hatred between Hindu and Muslim citizens, an offence said to be punishable under Section 153-A of the Indian Penal Code, 1860.

In his application, the petitioner contended that (a) the speeches do not justify forfeiture under Section 99-A CrPC and do not promote communal enmity; (b) the speeches preach communal amity and reflect political belief and criticism; and (c) the Government of Bihar merely copied the West Bengal notification without applying its mind and therefore the Bihar notification was contrary to law for failing to state grounds for forfeiture. He prayed that the Bihar order (dated 29 November 1961 and published 3 January 1962) be set aside.

Legal Issues Presented

Whether the notification published by the Government of Bihar dated 29 November 1961 (published in the Bihar Gazette on 3 January 1962) amounted to an independent order of forfeiture by the Government of Bihar under Section 99-A of the Code of Criminal Procedure.
Whether, before entering into the merits of the petitioner's challenge under Section 99-D/99-B of the CrPC, the High Court could treat the Bihar notification as an order amenable to attack in this Court.

Arguments of the Parties

Appellant's (Petitioner's) Arguments

The speeches compiled in "Nawa-i-Kashmir" do not contain material intended to promote feelings of enmity and hatred between Hindu and Muslim citizens and therefore do not justify forfeiture under Section 99-A CrPC.
The speeches were intended to preach communal amity and constituted an honest expression of Sheikh Mohammad Abdullah's political beliefs and criticism of political opponents.
The Government of Bihar did not apply its mind to the materials and merely copied the West Bengal notification; consequently, the Bihar notification lacked stated grounds and was contrary to law.
By reason of the Bihar publication date, the petitioner contended (argument raised but not decided) that his application to the High Court might have been within the two-month period required by Section 99-B CrPC measured from the Bihar action.

Respondent's (State's) Arguments

The State's counsel drew the Court's attention to a prior decision of the High Court of Andhra Pradesh (reported at AIR 1962 Andh Pra 526), where the same West Bengal notification was republished by Andhra Pradesh and the application there failed, in part, because it was not an order issued by the Andhra Pradesh Government.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1962 Andh Pra 526 (High Court of Andhra Pradesh decision involving Ghulam Sarwar Figar)	Illustration that republication by a State Government of another State's forfeiture notification does not necessarily constitute that State's own order of forfeiture; the petition there failed in part because it was not the Andhra Pradesh Government's order.	The Court relied on the Andhra Pradesh decision by analogy and support: it reinforced the conclusion that the Bihar notification was a republication for information and did not amount to an order of forfeiture by the Government of Bihar.

Court's Reasoning and Analysis

The Court framed a mandatory preliminary question: before addressing the merits of the petition under Section 99-D of the CrPC, it was necessary to establish that the Bihar notification was, in law, an order of forfeiture passed by the Government of Bihar under Section 99-A of the CrPC. If it was not such an order, the High Court could not entertain the petitioner’s challenge to a Bihar order that did not, in fact, exist.

The Court examined the Bihar notification and concluded prima facie that it was published only for information regarding the West Bengal order. This conclusion was supported by multiple points explicitly stated in the opinion:

The wording of the Bihar notification (literally translated) indicated that it was "published for information", which suggests republication rather than a fresh order.
The practical effect of the West Bengal order (forfeiture everywhere in India, power for police to seize and for magistrates to authorize search) showed that the West Bengal order had the operative consequences; Bihar's republication was consistent with conveying that West Bengal order to Bihar readers rather than instituting an independent forfeiture.
Publication placement within the Bihar Gazette: the Bihar notification appeared in Part III (which contains "Orders, Notifications and Rules of the Government of India, of the Government of West Bengal, of the High Court and of the Accountant-General, Bihar, Papers extracted from the Gazette of Indian and Provincial Gazette"). Part II contains material issued by the Governor of Bihar and by Heads of Departments. The Court reasoned that had Bihar itself passed an order of forfeiture under Section 99-A, it would have been published in Part II rather than Part III. This publication context supported the conclusion that Bihar's notice was informational republication and not an original forfeiture order.
The Court noted the Andhra Pradesh decision (AIR 1962 Andh Pra 526) where a similar republication by Andhra Pradesh had been held not to be Andhra's own forfeiture order; this case was invoked by the State and considered persuasive by the Court in support of its conclusion.

The petitioner’s submissions that the Bihar notification should be treated as an independent order and that his application was timely if measured from the Bihar publication were considered but the Court found it unnecessary to decide the timeliness point because the preliminary issue disposed of the petition: the Bihar notification was not an order of forfeiture by Bihar.

Holding and Implications

HOLDING: The application is dismissed.

The Court's direct effect on the parties: the petitioner’s challenge to the Bihar notification failed because the Court held that the Bihar notification dated 29 November 1961 (published 3 January 1962) did not constitute an order of forfeiture under Section 99-A of the CrPC issued by the Government of Bihar; consequently the Court declined to consider the merits of the contention that the book did not promote communal enmity. The dismissal was pronounced by U.N. Sinha, J., and agreed by Misra, J. and S.P. Singh, J.

The opinion did not enter into a substantive determination on whether the contents of the book breached Section 153-A IPC, nor did it decide the procedural timeliness question under Section 99-B; it disposed of the petition on the preliminary jurisdictional/characterisation point. The opinion does not purport to establish a novel general precedent beyond the reasoning applied to the facts of republication and Gazette placement.

End of summary.

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Gulam Sarwar Firgar v. State Of Bihar .

U.N Sinha, J.:— This application has been filed by one Ghulam Sarwar Figar, under S. 99-B of the Code of Criminal Procedure, praying that an order of forfeiture of the book called “Nawa-i-Kashmir”, passed by the Government of Bihar may be set aside. The facts stated in the application are as follows: It is stated that the petitioner is a journalist, carrying on a business of publishing books and supplying stationery in the name and style of Nafi and Company, at Calcutta. The petitioner has compiled the speeches of Sheikh Mohammad Abdullah, the former Prime Minister of Kashmir, delivered between the 8th of January and the 29th of April, 1958. The compilation is entitled “Nawa-i-Kashmir” and has been published by Nafi and Company. By notification No. 1449.PR-45/61, dated the 6th of November, 1961, issued by the Government of West Bengal, under Section 99-A of the Cr PC, this book was forfeited by the Government. (The correct number is 14424 and not 1449). The said notification of the Government of West Bengal had been published in a Gazette Extraordinary dated the 8th of November, 1961, of which the petitioner became aware on the 11th of January, 1962. The petitioner could not, therefore, apply to the High Court of Calcutta to have the order of the West Bengal Government set aside, as two months had expired from the date of publication of the order.

2. It is then stated that the notification of the Government of West Bengal was re-published by the Government of Bihar in the Gazette, published on the 3rd of January, 1962. The notification of the Government of Bihar is number NA/Press. O.S/1011/61-14424.C, which is dated the 29th November, 1961. It is further stated that in the notification of the Government of Bihar, it is alleged that the book in question contains matters, generally and specially at pages 39, 45, 64, 164, 167, 171, 198 and 202, which are deliberately and maliciously intended to promote feelings of enmity and hatred between the Hindu and Muslim citizens of India.

3. It is then stated in the application that the speeches compiled in the book in question, do not justify any action by the Government under S. 99-A of the Code of Criminal Procedure and the speeches, including the matters at the pages mentioned above, do not contain anything which can be said to be intended to promote or would promote feelings of enmity and hatred between the Hindu and Muslim citizens of India.

4. It is stated further that far from intending to promote feelings of enmity, the speeches were meant to preach communal amity and good-will. The speeches are said to be honest expression of the political belief of Sheikh Mohammad Abdullah, and contain his views against the Government, for the redress of certain wrongs committed by Sheikh Mohammad Abdullah's political opponents. It is then stated that the Government of Bihar has not applied its mind to the materials contained in the book and has only copied the notification of the Government of West Bengal. According to this application, the notification of the Government of Bihar is contrary to law, as no grounds are mentioned for the forfeiture of the book. Thus, it is prayed that the order of the Government of Bihar, dated the 29th November, 1961, published in the Bihar Gazette of the 3rd January, 1962, may be set aside.

5. In order to appreciate the arguments advanced by the learned counsel for the petitioner and the learned Standing Counsel, appearing for the State of Bihar, the notification of the Government of Bihar published on the 3rd of January, 1962, incorporating the order of the Government of West Bengal, dated the 6th November, 1961, is quoted below:

The 6th November 1961.

No. 1449-Pr.-45/61- Whereas it appears to the Governor that the book in Urdu entitled “Nawa-i-Kashmir” compiled by Ghulam Sarwar Figar, printed at the Taj Press, Calcutta, and published by Nafi and Co., 4 Abdul Ali Row, Calcutta-16, contains matters, specially at page 39, 45, 64, 164, 167, 171, 198 and 202, which are deliberately and maliciously intended to promote feelings of enmity and hatred between the Hindu and Muslim citizens of India and the publication of which is punishable under Section 153-A of the Indian Penal Code 1860 (XLV of 1800);

Now, therefore, in exercise of the power conferred by S. 99-A of the Code of Criminal Procedure, 1898 (V of 1898), the Governor is pleased hereby to declare every copy of the said book and all other documents containing copies, reprints and translations of, or extracts from, the said book to be forfeited to the Government

By order of the Governor

R.N Sen Gupta, Dy. Secy.

to the Govt of West Bengal.”

6. Having heard learned counsel for the parties, it appears to me that there: is an insurmountable obstacle in the way of the petitioner asking this Court to enter into the merits of the case and hold that the order of the Government of Bihar contained in the notification published on the 3rd of January, 1962 should be set aside under S. 99-D of the Code of Criminal Procedure. Before this Court can consider the order of the Government of Bihar on merits, it must first be established that the order is an order of forfeiture, passed by the Government of Bihar under Section 99-A of the Cr PC. Prima facie, the notification of the Government of Bihar, quoted above, was only for information With respect to the order of the Government of West Bengal. This is clear from the expression”

7. The literal translation of this expression is that the notification given below is published for information. But learned counsel for the petitioner has contended that in spite of the wording of the order passed by the Government of Bihar, in the terms in which it is passed, it is clear that the Government of Bihar had also passed an independent order of forfeiture under S. 99-A of the Code of Criminal Procedure.

8. In this context it is urged that although the notification of the Government of Bihar is dated the 29th of November, 1961, as it was published in the Bihar Gazette on the 3rd January, 1962, the present application filed in this Court on the 1st of March, 1962, ought to be considered to have been filed within two months of the date of the order of forfeiture passed by the Government of Bihar. Without going into the question as to whether this application has been filed within two months, as contemplated by S. 99-B of the Code of Criminal Procedure, or not, I have reached the conclusion that this application must fail on the preliminary point, namely, that the order of the Government of Bihar, dated the 29th November, 1961, published in the Bihar Gazette on the 3rd January, 1962, is not an order of forfeiture passed by the Government of Bihar. As indicated above, the notification of the Government of Bihar must be considered to be a notification for the purpose of information only. That the Government of Bihar had considered it appropriate to publish the order of forfeiture passed by the Government of West Bengal, may be deduced from the fact that by virtue of the order of forfeiture passed by the Government of West Bengal, every copy of the book in question was forfeited to the Government & any police officer may seize the book where-ever found in India. Moreover, 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 a copy of the book in question may be or may be reasonably suspected to be.

9. The conclusion that the Government of Bihar had published the notification only for general information, without meaning it to be an order of forfeiture, under S. 99-A of the Code of Criminal Procedure, is also apparent from the following: The notification of the Government of Bihar was published in Part III of the ordinary Bihar Gazette. Part III of the Gazette contains, “Orders, Notifications and Rules of the Government of India, of the Government of West Bengal, of the High Court and of the Accountant-General, Bihar, Papers extracted from the Gazette of Indian and Provincial Gazette.” Part II contains, “Regulations, Orders, Notifications, Rules etc., issued by the Governor of Bihar and by Heads of Departments.” Therefore, had the notification of the Government of Bihar been an order of forfeiture, it would have been published in. Part II of the Gazette. Thus, the conclusion must be that notification No. NA/Press O.S, 1011/61 14424.C of the Government of Bihar, dated the 29th November, 1961, was not an order of forfeiture, passed by the Government of Bihar, under S. 99-A of the Code of Criminal Procedure.

10. Learned Counsel for the State has drawn our attention to a decision of the High Court of Andhra Pradesh, in a case filed by Ghulam Sarwar Figar, reported in AIR 1962 Andh Pra 526. What had happened in that case was that the Government of Andhra Pradesh had re-published the same notification of the Government of West Bengal, on the 28th December, 1961. Ghulam Sarwar Figar, thereupon, applied to the High Court of Andhra Pradesh, praying that the order of forfeiture may be set aside. The application failed on the ground, amongst others, that it was not the Government of Andhra Pradesh that had issued the order of forfeiture. I have given my own reasons for concluding that the application filed in this Court must be dismissed for the reason that the order of the Government of Bihar dated the 29th November, 1961, does not amount to an order of forfeiture under S. 99-A of the Code of Criminal Procedure. In view of this conclusion, no useful purpose will be served in entering into the merits of the case and in considering the argument of the learned counsel for the petitioner that the speeches, contained in the book in question, do not tend to promote feelings of enmity and hatred between the Hindu and Muslim citizens of India.

11. The application is, therefore, dismissed.

Misra, J.:— I agree.

S.P Singh, J.:— I agree.

DG/D.H.Z

12. Application dismissed.

Gulam Sarwar Firgar v. State Of Bihar .

Court Opinion Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Petitioner's) Arguments

Respondent's (State's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gulam Sarwar Firgar v. State Of Bihar .

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