Critical analysis of provision 95 and 96 of crpc

INTRODUCTION

The State Government is authorised to pass an order of forfeiture under section 95 on its
subjective satisfaction which cannot be considered to be an unreasonable restriction because
the order must contain the grounds on the basis of which seizure of publication or document
was declared. Requirement about stating grounds of opinion is imperative and integral part of
the section. Where the order failed to state the grounds of opinion of the State Government, it
was liable to be set aside.

The section nowhere mentions that it is necessary to prove the intention to commit an offence
specified in this section before issuing the order of seizure. But while disposing application,
the High Court must be satisfied that the offending material is punishable under the relevant
sections of the Indian Penal Code.

The Punjab and Haryana High Court has held in Barjinde.- Singh’s case, ‘hat forfeiture of
copies of a Punjabi daily newspaper ‘Ajit’ during the terrorists activities in Punjab during
President’s rule was not violative of Article 14, 19 (1) (g) or 21 of the Constitution, though,
they imposed limited restrictions on a person’s right to trade.

In AnandChintamaniDiglie v. State of Maharashtra, a notification for the forfeiture of the

book entitled MeeNathuramGodseBoltoahe (I am NathuramGodse speaking) in all its forms
including Gujarati translation was seized under Section 95 by the State Government on the
ground that circulation of the said book will disturb public tranquility, promote disharmony
or feelings of enmity, hatred or ill-will among different groups or communities.

But the notification did not set out facts which formed the basis of opinion of the State
Government. The Court, therefore, held that it did not fulfill the mandatory requirement of
Section 95 (1), Cr.P.C. Mere reference of Sections 153-A and 295-A of I.P.C. in the
notification could not save notification against consequences of invalidity. The State
Government had exercised its powers under Section 95 extraneously and, therefore, the
forfeiture of the Book was ultra vires the Section 95 (1).

The High Court of Calcutta in SujatoBhadra v. State of West Bengal held that State
Government was justified in publishing second notification regarding forfeiture of a book if
in its opinion the first notification suffered from any technical defects.
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Application to High Court to set aside declaration of forfeiture:

In fact, Section 96 and the previous Section 95 should be read together as the order passed by
the State Government under Section 95 can be challenged under Section 96 in the High Court
having territorial jurisdiction of the State which passes the order. But the inquiry by the High
Court will be confined only to the issue whether the publication in question contains
objectionable matters referred to in Section 95 of the Code. It is not necessary for the Court to
consider whether the words contained in the publication actually brought about enmity and
hatred between the two communities or not.

In a case where only some of the grounds in the notification by State Government were valid
the High Court refused to set aside the order on the ground that merely some of the grounds
were not valid.

Sub-section (1) also lays down the limitation for filing an application to set aside an order of
forfeiture. Application must be made within two months from the date of publication in the
Gazette of such notification relating to forfeiture and not from the date of order of forfeiture.
Section 5 of the Limitation Act, 1963 applies to such applications. An application filed
beyond two months of date of publication is liable to be dismissed unless there are valid
reasons for condonation of delay in the opinion of the High Court.

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ANALYSIS OF SECTION 95 OF THE CODE OF CRIMINAL

PROCEDURE, 1973
Section 95 -Power to declare certain publications forfeited and to issue search warrants
for the same. Where-

(A) Newspaper, or book, or

(B) any document, 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 153B
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, and every copy of such book or other
document to be forfeited to Government, and thereupon any police officer 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
reasonably suspected to be.

1. Legislative history -Sub-sections (1) and (2) of section 95 reproduce section 99A of the
old Code with necessary drafting changes but with the following important change
The words "any seditious matter or any matter which promotes or is intended to promote
feelings of enmity or hatred between different classes of citizens of India or which is
deliberately and maliciously intended to outrage the religious feeling of any such class by
insulting the religion or the religious beliefs of that class, that is to say, any matter the
publication of which is punishable under section 124A or section 153A or section 295A,
I.P.C." have been substituted in sub-section (1) of section 95 by the words "any matter the
publication of which is punishable under section 124A or section 153A or section 153B or
section 292 or section 293 or section 295A, I.P.C. (45 of 1860)". This change has enlarged
the scope of the present section. Sub-section (3) of section 95 reproduces section 99G of the
old Code with necessary drafting changes.
2. No material change in earlier law. -When the old Code was supplanted by the
Cr.P.C1973, the provisions of sections 99A to 99G were not retained in their original form
but substituted by sections 95 and 96 of the Code. A comparison of these provisions would
indicate that though the language is not literally in parimateria , yet in effect the sum and
substance of the earlier law has been reincorporated with necessary changes with an eye to
better draftsman ship. Thus, sub-sections (1) and (2) correspond to sections 99(1) and (2) of
the old Code and section 95(3) is in parimateria with the earlier section 99G. Similarly, sub-
sections (1), (2) and (3) of section 96 of the Code are either in parimateria or in close

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similarity to sections 99B, 99C and 99E of the old Code respectively. Lastly, sub-sections (4)
and (5) of section 96 correspond to section 99D(1) and section 99D(2) of the old Code. It,
therefore, seems to follow inexorably that barring marginal changes and structural recasting
of the provisions, the earlier law under the old Code has been maintained intact.
3. Constitutional validity -Section 95 is not hit at by article 19 of the Constitution, The
normal mode of notifying any order of Government is by publication of it in the Official
Gazette and no personal service is generally contemplated. Section 95 is not open to attack on
the ground that it is inconsistent with the fundamental rights guaranteed under articles 14 and
19 of the Constitution
Sections 95 and 96, are not ultra vires, Section 295A, I.P.C., is not ultra vires or
unconstitutional. The procedure for forfeiture laid down in section 95, is only consequential
to the substantive law laid down in section 295A, I.P.C. Hence, section 95 and the section
following cannot be attacked as ultra vires. It is true that the scope of the enquiry under
section 96, is not as wide as that of a criminal trial. But this difference does not involve any
breach of the Constitution. There is nothing in the Constitution to suggest that all enquires of
criminal or quasi-criminal nature must be on the lines of a criminal trial.
The fundamental right under article 25 of the Constitution to profess, practise and propagate
religion is expressly "subject to public order, morality and health". The guarantee under
article 25, therefore, does not take away the authority of the State to legislate and act for
maintenance of public order and protection of morality and health of the community without
which it would be impossible to exercise the fundamental right and the guarantee of the right
would itself become a mockery.
However, the extraordinary power under this section must be used with care and
circumspection and the right guaranteed under article 19(1) (a) of the Constitution must not
be curbed except by rigidly adhering to section 95.
4. Object of provision. -The object of section 95 is to prevent the circulation of written
matter (i) which is seditious so as to fall under section 124A or (ii) which promotes or is
intended to promote feelings of enmity or hatred between different classes or communities so
as to fall under section 153A or (iii) which is deliberately and maliciously intended to outrage
the religious feelings of any such class by insulting the religion or the religious beliefs of that
class, so as to fall under section 295A, I.P.C.
The purpose here is preventive and not punitive. In view of the large scale public mischief
apprehended, it is sought to be nipped in the bud by straightway forfeiting the publications.
Thus, the object of an order under section 95 of the Code is the maintenance of public order
and it is for the State Government alone to form the opinion on matters mentioned in the
section before passing any order of forfeiture.
5. Essential conditions for forfeiture. -The essential conditions for invoking section 95, as
pointed out by the Supreme Court in Harnam Das v. State of Uttar Pradesh,are that in the
first place an order can be made under this section only when the State Government forms a
certain opinion. The opinion must be to the effect that the document with respect to which the

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order is proposed to be made contains any matter the publication of which is punishable
under the stated sections of the I.P.C. The second requirement of section 95 is that it is
imperative that the Government must state the grounds of its opinion.
If the grounds on which the opinion of the State Government is based are not mentioned in
the notification, the second condition for the exercise of the power would be lacking and the
order of forfeiture would be liable to be set asideBut it is not necessary that the offending
passages should all be reproduced in the notification or that the grounds or reasons in support
of the opinion formed by the Government should be stated in any particular form or in great
detail. It will be sufficient if by reading the notification, a person interested in the book is
able to understand the grounds on which the Government formed its opinion.
Therefore, in brief it may be stated that the triple facets of a valid order of forfeiture are :
(i) that the book or document contains any matter ;
(ii) the publication of such matter is punishable under any of the sections of I.P.C., specified
in section 95 ; and
(iii) a statement of the grounds of Government's opinion.
Thereupon the State Government may, by notification, declare every copy of the issue
containing such matter to be forfeited.
(i) 'Appears to State Government' and not its satisfaction. -Under section 95(1), requirement
is-"appears to the State Government to contain any matter the publication of which is
punishable". The statute does not require that it should be "proved" to the State Government
or that it should be "satisfied" that all requirements of the punishing sections
including mensrea are fully established. It is well-known in legal terminology that the word
"appear" is even mellower than "satisfied" and more so than the word "proved". Therefore, all
that section 95(1) requires is that the ingredients of the offence should "appear" to the
Government as complied with and not that they should be "proved" at the threshold or that
the Government should be inflexibly "satisfied" about them. Therefore, the prima
facie opinion of the Government that the offending publication would come within the
relevant sections of the I.P.C. with its requirements of intent would be adequate here to
enable it to act under section 95(1).
(ii) Evidence not required. -Proceedings under section 95 do not necessarily require leading
of any evidence before action is taken under sub-section (1) thereof. Indeed to require that a
deliberate and malicious intention must first be proved at the threshold stage before the
Government by evidence (including any rebuttal thereof) as a condition for acting under
section 95(1) as if an accused person was in the dock, would in effect, virtually frustrate the
preventive purpose of the said section.
6. Forfeiture of what? -Section 95(1), authorises the forfeiture of any newspaper, book or
document in the circumstances stated thereunder.

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(i) Newspaper. -In this section and section 96, the word "newspaper' has been, by virtue of
clause (a) of sub-section (2), given the meaning as defined in the Press and Registration of
Books Act, 1867. Posters or handbills are not newspapers.
(ii) Book-Volumes. -Section 95 talks of a book as defined in the Press and Registration of
Books Act, 1867. This definition takes in every volume or division of a volume. Therefore, a
book can be in more than one volume and each volume does not constitute a separate book.
All the volumes together constitute one book.
(a) Order of forfeiture cannot be confined to parts of book. -In order to gather the effect
which a book is likely to produce on the mind of the reading public, it should be read as a
whole. The operation of section 95, Cr.P.C., cannot be confined only to isolated parts of the
book, which come within the mischief of that section. Part or a division of a volume cannot
be separately forfeited. So, the power should be read as extending to the foreiture of the
volume containing the offensive matter where the book consists of more than one volume.
(b) Passages having remote effect. -Where the authors of books were non-Indians and did
not have the Government established by law in India particularly in mind and were
attempting to deal with certain supposed conditions prevailing in the entire world, the
publications of their translations do not come within the scope of this section. It cannot be
held that the books bring or attempt to bring into hatred or contempt or excite or attempt to
excite disaffection towards the Government established by law in India, when there is no
such intention directly implied, although it is possible that such writings may have the certain
effect of causing some disaffection. There should be either the intention to promote feelings
of hatred or enmity or such feelings should be promoted as a result of such publications.
Everything done which may have a remote bearing on promoting feelings of hatred or enmity
would not be an offence, nor if certain passages may be construed to create some distant
feelings of disaffection against the rich and the wealthy
(iii) Document
(a) Definition. -Sub-section (2) (b) has given a very wide meaning to this term. It includes
painting, drawing, photograph or other visible representation.
(b) Forfeiture of advertisement. -The mere fact that a document is only an advertisement of a
forthcoming book is not sufficient to protect it from forfeiture under section 95 and, in
considering whether it is seditious or not, the advertisement must be considered on its merits
and not in the light of the forthcoming book. The intention of an advertisement of a
forthcoming book is clearly primarily merely to further the sale of the book, and although it
may be intimately connected with the book and it may be considered desirable to forfeit all
the documents connected with a book that has been found to be seditious, there is no
provision in the law either under section 95, Cr.P.C. or section 124A, I.P.C., to forfeit the
advertisement for such reason alone.
(iv) Wherever printed. -The width of the language employed in section 95 leaves no doubt
that the power of a State Government to forfeit objectionable matter is not governed by the
consideration whether the matter is printed or published within its territory. The place of

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publication finds no reference in section 95 and, therefore, it is not a relevant factor in

exercise of the power of the State Government to forfeit a book, etc. The place of printing is
expressly made inconsequential because the power to forfeit a book can be exercised by the
State Government wherever the book may have been printed. Whether the book enjoys wide
circulation or any circulation at all in the area within the limits of the State Government
which passes an order of forfeiture is also not made relevant by the section. Finally, on the
language of the section, it does not seem necessary that the harmful consequences of the
matter charged as objectionable must ensue or be felt within the State. In short, therefore, it is
competent to a State Government to pass an order of forfeiture under section 95 even if the
objectionable matter is printed or published outside its area, the matter has comparatively
little or no circulation within its area and even if the harmful consequences thereof are not
particularly or especially felt within that area.
7. Offences specified. -The publication of matter must be punishable under sections 124A,
153A, 153B, 292, 293 or 295A, I.P.C. Sections 153B, 292 and 293 are newly added sections.
(i) Seditious matter (section 124A, I.P.C.)
(a) Sedition-Meaning and scope of. -Sedition consists of bringing or attempting to bring into
hatred or contempt or exciting or attempting to excite disaffection towards the Government
established by law in India. It must, therefore, be now taken as well settled that words, deeds
or writings constitute sedition punishable under section 124A, I.P.C. only when they excite
violence or disturb law and order or create public disorder or have the intention or tendency
to do so.
Forfeiture and seizure of newspapers publishing news items extolling the virtues of Khalistan
or of those said to have been martyred in its cause and directives of terrorists to observance of
specified social mores, which incite violence, is justified.
(b) Advertisement of a book. - See under item (b) of sub-heading (iii) of heading 6, ante.
(c) Forfeiture bad when only few passage objectionable. -Where the objected passages
constitute but only six out of 184 passages to be found in the forfeited book, they will not
constitute seditious matter punishable under section 124A. The order made by the State
Government forfeiting the book cannot, therefore, be sustained under this section.
(d) Forfeiture of seditious matter operative throughout country. -Any order forfeiting
seditious writing must in the very nature of things operate throughout the country, for it
cannot be that a writing is seditious in one part of the country but not in another. The two
other evil consequences of the written work which section 95 seeks to combat, namely,
promotion of class hatred and disparagement of religious beliefs such as would attract
sections 153A and 295A, stand more or less on the same footing. The matters which fall
under sections 124A, 153A or 295A are of national importance because they have country-
wide repercussions. In the very nature of things, there cannot, for example, be nexus between
local conditions and a seditious writing. Sedition is sedition all over the country.
(ii) Publication punishable under section 153A, I.P.C.

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(a) Section 195A when attracted? -It is important to remember that:

(1) Under section 153A, it is not necessary to prove that as a result of the objectionable
matter, enmity or hatred was in fact caused between the different classes.
(2) Intention to promote enmity or hatred, apart from what appears from the writing itself, is
not a necessary ingredient of the offence. It is enough to show that the language of the writing
is of a nature calculated to promote feelings of enmity or hatred for, a person must be
presumed to intend the natural consequences of his act.
(3) The matter charged as being within the mischief of section 153A must be read as a whole.
One cannot rely on stray, 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.
(4) For judging what are the natural or probable consequences of the writing, it is permissible
to take into consideration the class of readers for whom the book is primarily meant as also
the state of feelings between the different classes or communities at the relevant time.
(5) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a
charge under section 153A that the writing contains a truthful account of past events or is
otherwise supported by good authority. If a writer is disloyal to history, it might be easier to
prove that history was distorted in order to achieve a particular end as, for example, to
promote feelings of enmity or hatred between different classes or communities. But
adherence to the strict path of history is not by itself a complete defence to a charge under
section 153A. In fact, greater the truth, greater the impact of the writing on the minds of its
readers, if the writing is otherwise calculated to produce mischief.
(b) Offensive language necessary. -It is firmly established both in India and in England, that
criminality for the offence of blasphemous libel, or criminality under section 153A, I.P.C.
does not attach to the things said or done but to the manner in which it is said or done. If the
words spoken or written are couched in temperate, dignified, and mild language, and do not
have the tendency to insult the feelings or the deepest religious convictions of any section of
the people, penal consequences do not follow. So if the passages in book do not contain any
matter which may be characterised as written in bad taste or couched in offensive or
intemperate language the publication of the book cannot be said to be a criminal act which
may be punishable under section 153A, I.P.C
(c) Relative scope of section 153A, I.P.C. and this section. -The scope of section 95 is wider
than that of section 153A, I.P.C., because "intention" falls short of attempt and has in addition
been made an alternative ground.
(iii) Publication punishable under section 295A, I.P.C.
(a) Outraging religious feelings. -The test that is to be applied is not that of an abnormal or
hypersensitive man, but that of an ordinary man of ordinary common sense and prudence.
Not concerned with the question as to what version is correct historically, people may have
their own views and it cannot be denied that there have been different versions of Ramayan

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through the ages which have been prevailing at least for more than 2,500 years and it may be
that different people might give a version which might suit their purpose. But a
propagandist's version, which does not come within the mischief of the law, can in no case be
considered to be objectionable.
(b) No forfeiture of sacred book of religion. -The Koran being a sacred book and "an object
held sacred by a class of persons", within the meaning of section 295, I.P.C., against such
book no action can be taken under section 295A which has no application in respect of a
sacred book which is protected under section 295, I.P.C. Apart from anything else, there is no
question for forfeiture or banning of the said book on the ground of disharmony or feelings of
enmity or hatred or ill-will between different religions or communities. This book is not
prejudicial to the maintenance of harmony between different religions.
(c) Political doctrines not penalised. -The section does not contemplate the penalising of
political doctrines, even though of the extreme kind like communism, but merely such
doctrines as directly promote feelings of hatred or enmity.
(d) No forfeiture of historical book. -If the book gives an objective picture of the happenings
in the remote past without comment, which is based on a historical fact, the courts would be
reluctant to hold that such a work comes within the mischief of section 295A, I.P.C. The
mere fact that the author used such words as " Kulta " or " Duracharini " with reference to
Sita not as his comment, but as the accusations of the conspirators and the rumour-mongers,
that cannot by itself establish his intention as contemplated by section 295A, I.P.C.
(e) Intention of author, how far relevant. -What section 295A, I.P.C. requires is that there
should be a deliberate and malicious intention of outraging the religious feelings of any class
of citizens. Where it is difficult to hold that the author, though somewhat wanting in restraint
or delicacy in depicting part of the story which deals with scandals deliberately and
maliciously intended to outrage the religious feelings of Sanatani Hindus, the forfeiture of the
book on this ground cannot be supported.
The Allahabad High Court held that, even if there be no intention of the author to promote
and no attempt on his part to promote feelings of enmity or hatred, forfeiture can be ordered,
if the matter does promote such feelings of enmity or hatred.35 The Government is not
concerned with the intention of the author of the publication.36 But a different view has been
expressed by the Lahore and Calcutta High Courts, that the true intention of the author will
have to be shown before the order can be justified. In order to justify forfeiture under this
section for creating communal hatred, it is necessary, for the Government, according to these
High Courts, to establish that the writer of the work had been actuated by malicious
intent.37 It is only insults to religion or religious beliefs that are deliberately and maliciously
made that would bring into play section 95, Cr.P.C. But the intention of the author has to be
gathered primarily from the language used. If the words employed are of such a nature as
would lead any reasonable man to think that they are grossly offensive and provocative and
are intended to be regarded as such, the consequences indicated in that section ensue.38 Where
the origin of a community is sought to be traced, so long as there is adherence to the
historical part of the narrative, there may be no offence. But, on the other hand, where the

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author uses language which shows malice, he would be promoting feelings of enmity and
hatred.
It is no defence to a charge under section 295A, I.P.C., for an accused to plead that he was
writing a book in reply to the one written by one professing another religion who has attacked
his own religion.
It is no defence to a charge under section 95, Cr.P.C. or section 295A, I.P.C. that the author
had incidentally attacked other religious beliefs also.
(iv) "Different classes of citizens of India". -The expression refers to two sections of the
people, which can be classified as two groups opposed to each other. A vague, indefinite and
nameless body, even though given a name, may not be considered as a class by itself, though
it is not necessary that the classes should be so distinct and separate as to make it easy to put
an individual in one class or the other There can be subsidiary classes within one central
class. The present section and sections 153A and 295A, I.P.C. do not contemplate a division
of classes necessarily on religious grounds. Any definite and ascertainable class of citizens of
India comes within the purview of those sections although classes may not be divided on
racial or religious grounds. Therefore, Hindus of the VaishnavSampradaya and those of
backward and scheduled castes are both "classes" of citizens of India. They are covered by
section 95 of the Code.
8. Declaration of forfeiture by notification
(i) Stating grounds of forfeiture mandatory. -It is mandatory on the part of the State
Government to state the grounds for the forfeiture of offending newspaper, book or
documentThe notification under section 95, must set out the grounds on which the State
Government has formed a particular opinion. Mere mention of the article in the notification
would not constitute giving or setting the grounds as contemplated by section 95. By issue of
a notification, the inbuilt safeguard or check is embedded in the provision whereby the State
Government is obligated to state the grounds founding the opinion. The reasons or grounds in
support of the conclusion of the violation of the concerned provision of I.P.C. is a basic and
initial step for initiating action under section 95.45 In other words, the grounds of opinion are
a vital and essential part of the notification because it is those grounds which would reveal
the justification for the issuance of the notification. The requirement about stating the
grounds of opinion of the State Government, being an imperative and integral part of the
provision, it would follow that a notification in order to be legal and effective must comply
with and fulfil that requirement. Such a compliance is a sine qua non of the validity of the
notification, and a notification which does not incorporate the grounds of the opinion, would
be not in conformity with law. The law in this respect has to be substantially complied with
and it is not enough to merely reproduce the language of sections 124A and 153-A, etc.
without specifying as to how or in what manner there has been contravention of the provision
of those sections.
When the section says that grounds must be stated, it is no answer to say that they need not be
stated because they are implied. One does not state a thing when one is expressively silent
about it. A formal authoritative setting forth of the grounds is statutorily mandatory. If one

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lazes and omits, the law visits the order with voidness and this the State Government must
realize especially because forfeiture of a book for a penal offence is a serious matter, not a
routine act to be executed with unconcern or indifference. The effect of neglect is invalidity,
going by the text of the Code.
In the above view of the matter, the order under this section without grounds for the requisite
opinion of the State Government would be liable to be set aside.48 A varitable flood of
information in regard to diverse areas of human endeavour is now available and a sense of
realism must, therefore, guide a purposeful interpretation of provisions such as section 95.
The book, 'Me Nathi Ram GodseBoltey' written by petitioner was forfeited and petitioner was
not allowed to make emoted reading of play before private audience invited by Hindu Manch.
The petitioner challenged their notification under section 226 of Constitution as it was issued
10 years after it was written. Apart from this slightest degree of danger to existence of
communal harmony and communal well being during these years as a result of book or play
was not pleaded by Government. The petitioner had also assured the court that emoted
reading of play will be carried out in an orderly manner and there will be no apprehension of
any breach of law and order or public order. Impugned notification was, therefore, stayed but
stay was to operate only in respect of proposed performance of play on stipulated date.
(ii) Statement of grounds essential to show application of mind. -The object behind stating
the grounds for forfeiture is to compel the State Government to apply mind with an objective
approach and state the grounds explicitly and thereby integrate the nexus between the
offending material and the related provisions of I.P.C. So the epitome of grounds is a fore-
runner to the formation of opinion. It is possible to infer the objective assessment of the
situation from the reasons or grounds only and mere inference or conclusion does not satisfy
the requirement of section 95. If the Government order indicates the mere reproduction of the
ingredients of the relevant sections without applying mind to the crucial aspect whether the
passages in the book tend to incite or promote the feelings, it is liable to be quashed.
(iii) Grounds cannot be set forth subsequent to notification. -It is for an effective exercise of
the statutory right given to the aggrieved party to approach the court under section 96 that an
express mention is necessary in the impugned order of the "statement" of grounds of the
Government's opinion. A notification without the grounds cannot be sustained even if the
grounds are supplied before the court for the first time at the hearing of application under
section 96 of the Code.
(iv) Detailed reasons need not be given in notification. -It is not at all necessary for the State
Government to incorporate in the notification detailed reasons on the basis of which it has
formed its opinion. Such reasons may be contained in the appendix to the notification.
(v) Opportunity of hearing. -It is not practicable to give an opportunity of being heard to the
person concerned before passing the order of forfeiture under section 95. Section 95 contains
in-built safeguards.
(vi) No requirement to quote offending portion of publication verbatim . -It is neither the
requirement of law nor of precedent and prudence that the offending portions of the
publications, which may be directly and flagrantly outraging the feelings of a particular

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community or promoting hatred between the two classes of citizens, should be either
quoted verbatim or have an authenticated gist thereof in the statutory notifications. It is amply
sufficient if on the grounds of opinion, that is, the conclusions of fact being duly stated, the
Government opinion arrived at therefrom is clearly exhibited that the publications come
within the mischief of the law.
(vii) Order to operate throughout country. -It is not strictly accurate to say that the State
Government issuing an order of forfeiture under section 95 gives or must give to that order a
countrywide operation. The State Government merely passes an order of forfeiture. It does
not stipulate in the order that it will operate all over the country. The effect, however, of the
order is that any police officer may seize copies of the objectionable matter, wherever found
in India. However, if objectionable literature were to be banned in one State and not in others,
the order of forfeiture will be difficult to be enforced because copies which are in circulation
in the other States are bound to trickle into the neighbouring State. But what is really more
important is that if the forfeitures were not to operate in all other areas the harmful effects of
the writing which will occur in those areas where the writing is circulated freely will sooner
or later, be felt in the State issuing the order of forfeiture.
(viii) Order of forfeiture whether final? -Sub-section (3) of this section lays down that no
order passed or action taken under this section will be called in question in any court
otherwise than in accordance with the provisions of section 96. It shows the language of
exclusion, not of enlargement of jurisdiction.
9. Writ against order of forfeiture. -The powers of the Supreme Court under article 32 and
of the High Court under article 226 are concurrent and if the Supreme Court cannot refuse to
interfere in favour of a person who complains of the contravention of fundamental rights,
equally so the High Court cannot refuse to entertain the application of a person who comes
before it under article 226, on the ground that his fundamental rights should be protected. In
the matter of contravention of fundamental rights, alternative remedy, e.g., application to
High Court under section 96 of the Code, is no bar. 57 Therefore, a writ petition not
challenging any specific forfeiture and seizure, but challenging only the validity of
instruction issued under section 95 is not liable to be dismissed on ground that alternative
remedy under section 96 is available.
10. Return of seized copy. -Though section 95 does not make any specific provision
therefor, if a State Government withdraws the order of forfeiture, it must return the copies
seized in enforcement of that order. The validity of the seizure would lapse with the
withdrawal of the order under which the seizure was made.
11. No power to confiscate or destroy books on acquittal of accused. -Where books are
seized by the police officer under section 95, the trial court while acquitting the accused
under section 295A, I.P.C., has no power to confiscate or destroy the books under section 95,
Cr.P.C. The Magistrate can only direct the restoration of the books by the authorities who
seized the books.

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ANALYSIS OF SECTION 96 OF THE CODE OF CRIMINAL

PROCEDURE, 1973
Section 96 in The Code Of Criminal Procedure, 1973

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 declaration, 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) Every such application shall, where the High Court consists of three or more Judges, be
heard and determined by a Special Bench of the High Court composed of three Judges and
where the High Court consists of less than three Judges, such Special Bench shall be
composed of all the Judges of that High Court.

(3) On the hearing of any such application with reference to any newspaper, any copy of such
newspaper may be given in evidence in aid of the proof of the nature or tendency of the
words, signs or visible representations contained in such newspaper, in respect of which the
declaration of forfeiture was made.

(4) The High Court shall, if it is not satisfied that the issue 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) Where there is a difference of opinion among the Judges forming the Special Bench, the
decision shall be in accordance with the opinion of the majority of those Judges.

1. Legislative history. -Section 96 corresponds to sections 99B, 99C, 99D and 99E of the old
Code with necessary drafting changes, but with the following noticeable changes.

(i) The word "order" in old section 99B has been substituted by the word "declaration" and
the words "such order" have been replaced by the words "publication in the Official Gazette
of such declaration".

(ii) The words "where the High Court consists of three or more Judges" have been added in
section 96(2) after the words "such application shall" appearing in old section 99D.

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(iii) The words "and where the High Court consists of less than three Judges such Special
Bench shall be composed of all the Judges of that High Court" have been added in section
96(2).

2. Right of interested person to move High Court. -Any person having any interest in any
newspaper, book or document, in respect of which a declaration of forfeiture has been made
under section 95, may apply to the High Court to set aside the declaration. Thus, the owner of
a copy of the book, institution sponsoring the publication of the book, or the followers of a
particular sect of a particular religion in respect of a religious book, will be persons interested
to get the declaration of forfeiture set aside.

3. Application to High Court for setting aside declaration of forfeiture

(i) Necessity of declaration of forfeiture. -No application under this section is competent
where no declaration of forfeiture under section 95 has been made by the State Government.

(ii) Period of limitation and extension. -An application to the High Court has to be made
within two months from the date of publication of declaration in the Official Gazette.
Whether the period fixed by the statute is two months or anything else, a certain amount of
arbitrariness is inevitable in the fixation of a period of limitation. Therefore, the period of two
months can, in proper cases, be extended under section 5, Limitation Act of 1963.

However, it is incumbent on the applicant to explain each day's delay. Where neither in the
application under section 5 of the Limitation Act nor in the supporting affidavit, any attempt
has been made to make out a sufficient cause for condoning the delay, delay cannot be
condoned.

(iii) Burden of proof. -The earlier view of the Allahabad High Court was that, where a
person aggrieved by an order of the Government prescribing certain publications as seditious,
applied to the High Court under this section, to have the order of the Government set aside,
the onus was on the Government in the first instance to satisfy the court that the publications
contained seditious matter. But the High Court later took the view that where an application
was made on the ground that the matter published did not fall within the mischief of section
153A, I.P.C., it was for the applicant to convince the court that the order of forfeiture was
wrong. However, on the question of onus of proof, no distinction in principle can be made
between an order of forfeiture under section 124A and one under section 153A, I.P.C. The

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language of the section that the person interested may apply to the High Court to set aside the
order of forfeiture on the ground that the newspaper, etc., "did not contain any seditious or
other matter, etc." seems to support the latter view.7 At the same time, the question of onus of
proof is of little or no practical importance after both parties have been fully heard.

To conclude, therefore, 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 requirements of intent is on the applicant and such intention has to be gathered
from the language, contents and import thereof.

(iv)Proper High Court. -There is nothing in section 96 to compel the construction that an
order of forfeiture passed under section 95 can be challenged under section 96 in any High
Court within whose territorial jurisdiction the order has taken effect. Therefore, the order
passed by a State Government under section 95 can be challenged under section 96 in that
High Court only which has jurisdiction in relation to the territories of that State. Section 95
empowers "the State Government" to pass an order of forfeiture, while section 96 confers a
remedy on a person aggrieved by that order to apply to "the High Court" to set aside the
order. The implication is that the remedy must lie in the High Court which exercises
jurisdiction in relation to the territories of the State Government which passes the order of
forfeiture.

(v) Right to begin. -A Full Bench of the Allhabad High Court, agreeing with an earlier case
took the view, that it was manifestly most convenient that the Government advocate should
begin and state the case in support of the Government's orders. In a later case, the Special
Bench, after considering the above view, has decided that the applicant has the right to open
the case and has the final rights of reply, as the initial burden of proof is not on the
Government.

(vi)Only State Government has right to support. -Any person other than the State
Government making the declaration of forfeiture cannot be heard in its support.

4. High Court's jurisdiction

(i) Satisfaction of High Court and its test. -When the declaration of forfeiture comes before
the High Court, then the solitary test prescribed is the satisfaction of the High Court itself
with regard to the offending material being punishable or not under the relevant sections of
the I.P.C. specified in the notification. The jurisdiction of the High Court is not merely
confined to judging the opinion of the Government and whether it could be reasonably
arrived at but is much wider in weighing for itself and arriving at its own conclusion with

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regard to the offending publication, and whether the same comes within the ambit of
punishability under the relevant sections of the I.P.C. Thus, the primary test is the satisfaction
of the High Court itself with regard to the justifiability of the declaration of forfeiture and all
other considerations are subservient thereto. It is not that the State Government's opinion
alone and its prima facie satisfaction is the sole issue but instead, the High Court's own
assessment and satisfaction about the publication being punishable and coming within the
four corners of the mischief of a particular section of the I.P.C. is the primary question. Such
satisfaction alone is the pith and substance of the matter and not any tautological gambit
whether the State Government could have reasonably arrived at such an opinion or that the
test of a reasonable man doing so should be satisfied. Therefore, as pointed out by the
Supreme Court inHarnam Das v. State of U.P., in the ultimo ratio, it is the satisfaction of the
High Court alone whether the offending publication is one which comes within the ambit of
the relevant punitive section of the I.P.C. which would be conclusive However, it is not the
duty of the High Court to find for itself whether the books contained any offending material.
If the notification is not in conformity with law because of having not stated the grounds of
opinion, the High Court would not itself go into the matter and find out by referring to the
different passages in the book as to whether they contravene section 153A, I.P.C. The defect
cannot be cured by the filing of the affidavit of the under-secretary during these proceedings.

(ii) Publication to be judged as a whole. -It is well-settled that the offending publication is
to be viewed as a whole and the intent of the author has to be gathered from a broader
perspective and not merely from a solitary line or quotations. Where the applicant is alleged
to have published a series of books, the whole series must be looked to, to determine whether
the passages contained therein are seditious. If two books are written by an author, verified
by the preface that the latter book is the integral part of the former, the court must look to the
contents of the other book in judging the merits of the former.

(iii) Grounds beyond declaration of forfeiture not permissible. -In a proceeding taken
under section 96 to set aside the order of forfeiture, the sole issue before the court is the
correctness of the opinion of the Government and the grounds mentioned in the order in
support of that opinion. Neither the court nor the State Government nor any one else can
supplement the opinion or the grounds mentioned in the order.

Arguments based on other grounds, cannot be considered in these proceedings if the order of
forfeiture passed by the State Government is not based on these grounds.

Thus, only the grounds made on the basis of the order under section 95 have to be considered
and other justifications are to be ignored.

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(iv) Declaration of forfeiture to be set aside in absence of grounds therefor. -A reference

to sub-sections (1) and (4) of section 96 would indicate that the ground for setting aside the
order in the application and the satisfaction of the High Court is to be directed to the issue
whether the offending publication did contain any such matter as is referred to in sub-section
(1) of section 95 and thus comes within the mischief of one or other of the sections of the
I.P.C. specified therein. Earlier there had existed a considerable body of judicial opinion that
both the nature of the challenge in the application against the declaration of forfeiture as also
the satisfaction of the High Court were limited only to the ground that such publications did
not, in fact, contain any such matter which might be an offence under the relevant section of
the I.P.C. This seems manifest from the powerful dissenting opinion of Das Gupta, J., in
HarnamDas's case. However, the controversy on this point is set at rest by the majority
opinion of Sarkar, J., in the said case holding (para 13) :

"What then is to happen when the Government did not state the grounds of its opinion? In
such a case if the High Court upheld the order, it may be that it would have done so for
reasons which the Government did not have in contemplation at all. If the High Court did
that, it would really have made an order of forfeiture itself and not upheld such an order made
by the Government. This, as already stated, the High Court has no power to do under section
99D. It seems clear to us, therefore, that in such a case the High Court must set aside the
order under section 99D, for it cannot then be satisfied that the grounds given by the
Government justified that order. You cannot be satisfied about a thing which you do not
know. This is the view that was taken in ArunRanjanGhose v. State of West Bengal, and we
are in complete agreement with it. The present is a case of this kind. We think that it was the
duty of the High Court under section 99D to set aside the order of forfeiture made in this
case."

In view of the categoric declaration of the law, it must be held that a person is entitled to raise
the issue and challenge the notifications on the plea of the alleged total absence of the
grounds of opinion of the Government in the notifications and if it is established the
declaration of forfeiture has to be set aside.

(v) Duty when offending intent clear? -Where the words used in a prescribed booklet are
such as have a clear tendency to promote class hatred, it is not necessary to look for any
external evidence. Further, it is not necessary for the prosecution to establish that the writer
had the intention to promote such hatred. The only thing that the court has to see is whether
the words used encourage hatred and enmity between two communities or excite one
community against another. It is not necessary to find that they actually brought about enmity
and hatred between two communities.

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(vi) Declaration to be set aside when High Court in doubt or two views possible. -If the
High Court is left in doubt after hearing the application, it should set aside the order of
forfeiture, which may be said to be contrary to the ordinary practice in an appeal in a civil
suit. Similarly, where a document admits of two reasonably possible interpretations or views,
and the matter is in doubt the applicant must have the benefit of that which is most favourable
to him. In such a case, the High Court cannot be satisfied that the matter is objectionable and
must, therefore, set aside the declaration of forfeiture.

(vii) Effect of order of High Court on trial under I.P.C. by Magistrate. -Where the
accused applied to the High Court under this section to set aside an order of forfeiture and on
his application a Bench of three Judges found that the order was properly made and dismissed
the application, the trying Magistrate had no alternative, in the face of the decision of the
High Court in the same matter, but to convict the accused, and, in these circumstances, would
be justified in disallowing all further evidence. The decision of the High Court on the
application under this section is relevant and admissible in evidence under sections 11 and 13
of the Evidence Act.

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CONCLUSION

The State Government is authorised to pass an order of forfeiture under section 95 on its
subjective satisfaction which cannot be considered to be an unreasonable restriction because
the order must contain the grounds on the basis of which seizure of publication or document
was declared. Requirement about stating grounds of opinion is imperative and integral part of
the section. Where the order failed to state the grounds of opinion of the State Government, it
was liable to be set aside.

Section 96 and the previous Section 95 should be read together as the order passed by the
State Government under Section 95 can be challenged under Section 96 in the High Court
having territorial jurisdiction of the State which passes the order. But the inquiry by the High
Court will be confined only to the issue whether the publication in question contains
objectionable matters referred to in Section 95 of the Code. It is not necessary for the Court to
consider whether the words contained in the publication actually brought about enmity and
hatred between the two communities or not.

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BIBLIOGRAPHY

o http://www.legalservicesindia.com/article/article/plea-bargaining-in-indian-legal-
system-1836-1.html
o http://www.legalserviceindia.com/articles/plea_bar.htm
o http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1345&context=ulj
o http://www.barcouncilofindia.org/wp-content/uploads/2010/05/Advocates-
Act1961.pdf

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