Sadaruddin Ahmed Chisty Vs. Bangladesh and others.

Sadaruddin Ahmed Chisty

 Vs.

 Bangladesh and others.

Supreme Court

Appellate Division

(Criminal)

Judges:

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md. Abdur Rouf J

Bimalendu Bikash Roy Chowdhury J

Sadaruddin Ahmed Chisty…………….Petitioner

Vs.

Bangladesh and others……………Respondent

Judgment

March 24, 1997.

The Code of Criminal Procedure (V of 1898) Section 99A(1)(c)

Once the Special Bench of the High Court Division has applied its  mind in terms of section 99D of the Code of Criminal Procedure by going through the offending books there is no relevance of the question that grounds of forfeiture of the books are not covered by the requirements of section 99A of the said Code…………….. (4)

Under section 99A of the Code of Criminal Procedure no satisfaction of the Government is to be indicated to forfeit a publication. It is enough if it “appears to the Government” that certain publications contain any matter as is referred to in sub-section (1) of section 99A of the said Code. The Government is only required to state by Notification in the Official Gazette the grounds of its opinion, not its satisfaction or formation of opinion………………….(6)

(iii) Under section 99D of the Code of Criminal Procedure Special Bench of the High Court Division is to be negatively satisfied that the forfeited publication does not contain any matter referred to in sub-section (1) of section 99A of the said Code. Special Bench having found that there are several matters in the six books which contain matters referred to in sub-section (1) of section 99A there is no ground to interfere with its decision.

Case Referred to-

The Working Muslim Mission & Literary Trust, Lahore vs. The Crown, 8 DLR (FC) 110.

Lawyers Involved:

Md. Abdur Rashid, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record — For the Petitioner. 

Not Represented — The Respondents.

Criminal Petition for Leave to Appeal No. 27 of 1995.

Judgment 

                  Mustafa Kamal J.- This petition for leave to appeal by the petitioner is from the judgment and order dated 16-8-94 passed by a Special Bench for the High Court Division under section 99D of the Code of Criminal Procedure in Criminal Miscellaneous Case No. 464 of 1994 making the rule absolute in part in relation to two forfeited books and discharging the Rule in part in relation to six forfeited books.

2. Eight books written by the petitioner were forfeited by the Ministry of Home Affairs by a Notification dated 8-12-93 published in the Bangladesh Gazette on 30-12-93. Two books written by another person were also similarly forfeited by the Government by a separate Notification of the same date. The forfeitures were made under section 99A(1)(a) of the Code of Criminal Procedure. In respect of the forfeiture of eight books the petitioner filed Criminal Miscellaneous Case No. 464 of 1994 under section 99B of the Code of Criminal Procedure and in respect of forfeiture of the other two books the author thereof filed Criminal Revision No. 668 of 1994. Both the cases were heard by a Special Bench of the High Court Division composed of three Judges, as required under section 99C of the Code of Criminal Procedure. The Special Bench discharged the Rule in Criminal Revision No.668 of 1994. The petitioner’s petition for leave is confined to the six books in respect of which the order of forfeiture dated 8-12-93 and the Notification dated 30-12-93 have been sustained by the Special Bench.

3. Mr. Md Abdur Rashid, learned Advocate for the petitioner, submits that the grounds of forfeiture stated in the Notification are not covered by section 99A(1) (a) of the Code of Criminal Procedure. He points out that the reasons given for forfeiture are:

ÒBmjvg ag©vej¤^x‡`i agx©q Abyf~wZ Z_v †gŠwjK wek¦v‡mi cwicš’x AvcwËKi e³e¨ cÖKvwkZ nIqvqÓ [because of objectionable matters published which are subversive to the basic religious belief of Islamic believers]

and these reasons are not enough to attract the mischief of section 295A of the Penal Code. He relies upon the decision in the case of the Working Muslim Mission & Literary Trust, Lahore vs. The Crown, 8 DLR (FC) 110.

4. We have perused the Notification at page 146 of the paper book. Section 99A requires the Government to state the grounds of its opinion by Notification in the official gazette. It does not require the Government to repeat ad verbatim the ingredients of section 295A. Section 99D of the Code of Criminal Procedure requires that the Special Bench shall, if it is not satisfied that the forfeited books contained any such matter as is referred to in sub-section (1) of section 99A, set aside the order of forfeiture. In other words the Special Bench has the responsibility of being negatively satisfied that the forfeited books do not contain any such matter as is referred to in the said sub-section.

5. The Special Bench appears to have gone through all the books and found that at least two books do not contain any matter as is referred to in sub-section (1) of section 99A, but in respect of the other six books the Special Bench was not so satisfied. As such, we do not think that the contention of the learned Advocate that the grounds of forfeiture stated in the Notification are not covered by section 99A of the Code of Criminal Procedure has any more relevance once the Special Bench has applied its  mind in terms of section 99D of the Code of Criminal Procedure.

6. Mr. Md Abdur Rashid next contends that in the impugned Notification no satisfaction of the Government is indicated.

7. Under section 99A no satisfaction of the Government is to be indicated. To forfeit a publication it is enough if it “appears to the Government” that a certain publication contains any matter as is referred to in sub-section (1) of section 99A. The Government is only required to state by Notification in the Official Gazette the grounds of its opinion, not its satisfaction or formation of opinion.

8. Mr. Md Abdur Rashid next submits that in exercising its jurisdiction under section 99D of the Code of Criminal Procedure the Special Bench was required to be satisfied as to whether the grounds of forfeiture stated in the Notification are covered by section 99A of the Code of Criminal Procedure or not, but instead of doing so it made a roving inquiry as to whether the grounds of forfeiture existed or not.

9. We have already noticed that under section 99D of the Code of Criminal Procedure the Special Bench is to be negatively satisfied that the forfeited publication does not contain any matter referred to in sub-section (1) of section 99A. In doing so the Special Bench took great pains in going through all the books and found that except for two books there is nothing to show that the rest do not contain any such matter. On the contrary, the Special Bench found there are several matters in the six books which contained matters referred to in sub-section (1) of section 99A.

We therefore do not find any ground for interference.

The petition is dismissed.

Ed.

 

Source: 50 DLR (AD) (1998) 119

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