Case No: Criminal Revision No. 306 of 1994
Judge: Syed Md. Ziaul Karim,
Court: High Court Division,,
Advocate: M Amirul Islam,Mr. Sheikh Rafiqul Islam,Mr. Md. Ensan Uddin Shaikh,,
Citation: 2 LNJ (2013) 229
Case Year: 2013
Appellant: Shafiq Rehman
Respondent: Mohammad Hasanul Alam and another
Delivery Date: 2012-08-23
(CRIMINAL REVISIONAL JURISDICTION)
Syed Md. Ziaul Karim, J.
Ashish Ranjan Das, J.
Shafiq Rehman, Editor, “Jai Jai Din”
. . . Accused-petitioner.
Mohammad Hasanul Alam and another
Code of Criminal Procedure (V of 1898)
Sections 499 and 501
It transpires that the complainant has alleged that the subject-matter of the publication has hurt his religious feelings and he became shocked as the letter Alif is one of the letters used in the Holy Quran, and that part of the writing is obscene. The word used in the subject-matter of defamation is not a matter to hurt the religious feeling of the complainant in any manner whatsoever. Moreso, in the re-joinder the petitioner expressed his sincere regret for publishing the same stating that it has done in good faith, and he had no intention to hurt anyone of his religious feelings.
Hence, the continuation of the proceedings adopted and constituted against the petitioner in the aforesaid case is abuses of the process of the Court which is liable to be quashed.…(9, 13 and 14).
Mr. Sheik Rafiqul Islam, Advocate,
No one appears,
Mr. Md. Ensan Uddin Shaikh, A. A. G. with
Mr. Mian Md. Shamim Ahsan A. A. G.
Criminal Revision No. 306 of 1994
By this Rule, the petitioner sought for quashing of the proceedings constituted in C.R. case no. 498 of 1993 under Sections 500, 501, 502 of the Penal Code pending in the Court of Magistrate, first Class, Court no.1, Rangpur.
The prosecution case put in a nutshell are that the opposite party No. 1 as complainant filed a petition of complaint in the Court of Magistrate, First Class, Rangpur against the accused petitioner alleging interalia that he is a regular reader of the weekly named “ Jai Jai Din” and while reading the 31st issue of the fourth year of its publication he came across a column which is written by the petitioner as part of his regular column in the said weekly under the title “Diner Per Din“ and the end of the said column it was written:
“শেখ করিমের বিলাস বহুল এপার্টমেন্টে মিলনর প্রাককাল সিনথিয়া হতবাক হয়ে গেল। শেখ করিমের উত্থিত অঙ্গের দৈর্ঘ দেখে সিনথিয়া বিস্ময় ও প্রশংসায় মেশানো অস্ফুট স্বরে বললা, ওয়াও (WOW)!
By reading the same the complainant herein opposite party no.1 became shocked and it has hurt his religious feelings on the ground that the letter Alif is one of the letters used in Holy Quran and that part of the writing is obscene. Thereby the petitioner the Editor of that Weekly “Jai Jai Din” committed the offence prescribed in Sections 501, 502 of the Penal Code.
On receipt of the complaint the learned Magistrate took cognizance of the offence under the aforesaid sections. Thereafter the petitioner surrendered in the Court below and enlarged on bail.
Feeling aggrieved by the aforesaid proceedings the petitioner preferred the instant application and obtained the present Rule.
The learned Advocate appearing for the petitioner supports the Rule and submits that the written word in question being subject-matter of complaint in the impugned proceedings does not disclose any offence inasmuch as those words do not by any stretch of imagination demeanour the opposite party nor they are capable of imputation of any meaning or sense purporting nor those words are written with any intent thereof. He adds that the petitioner never had any intention of hurting any feeling of anybody or person, religious or otherwise or to defame in any manner whatsoever. Those words which are objected to merely contain a reference a letter only in capable of any innuendo as has been imputed to and that the petitioner never in his wildest thought that it could ever be linked with any religious feeling. It was merely part of a joke and an imaginary story as often the jokes are so made and this is a common joke used as adult joke in many Arabs Countries. He adds that the petitioner was never aware that this was capable of hurting the feeling of any individual religion or otherwise. He adds that in taking objection to the joke on the ground as he did unreasonable as because there is no nexus between the joke and religion or the Holy Quran. Yet the petitioner having shown respect even for such unreasonable and irrational emotion as he referred to a letter in the Holy Quran, the petitioner soon published a clarification in the 34th issue in a prominent manner further explaining that the story as was written in 31st Issue was merely a joke and it has no innuendo whatsoever of religion and even though it was not capable of any such innuendo as alleged the petitioner’s expressed his profound and sincere regret for the same. He adds that the written words in question having not disclosed any offence, the compl-aint is unjustifiable, unreasonable and has tendency to harass the petitioner and it further has the tendency of infringing the right to free expression. He adds that it is not the petitioner who has created any innuendo or maligned anybody or person, but it is the opposite party who is putting a false innuendo and thereby maligning the petitioner with a charge which is false and most heinous and tends to address to some kind of blind irrational emotion for nothing and with any justifiable basis. He lastly submits that the continuation of the proceedings not only causes unnecessary and illegal harassment to the petitioner but also tends to create and increase false tention and emotion against the petitioner which the petitioner does not deserve.
The learned Assistant Attorney General appearing for the opposite party no. 2 opposes the Rule and submits that the allegations as made in the complaint will come within the mischief of section 501 of the Penal Code so the Court below rightly took cognizance of the offence which calls for no interference by this Court.
In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
On going to the materials on record it transpires that the complainant Mohammad Hasanul Alam alleged that the subject-matter of the publication has hurt his religious feelings and he became shocked as the letter Alif is one of the letters used in the Holy Quran, and that part of the writing is obscene.
We have carefully examined the allegations made in the petition of complaint.
For the convenience of understanding Sections 499 and 501 read as hereunder:
499- Defamation-Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter excepted, to defame that person.”
501- Printing or engraving matter known to be defamatory- Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
It is pertinent to point out that after publishing the same the publisher herein petitioner published a re-joinder in the following manner:
“বর্ষ ৪ সংখ্যা ৩৪ মঙ্গলবার ৩০ নভম্বর, ১৯৯৩ দামঃ পাঁচ টাকা
“যায় যায় দিন”
যায় যায় দিন এর ৯ নভেম্বর সংখ্যার দিনর পর দিন কলামের শেষে গল্পটি নিছক কৌতুহল হিসাবেই ছাপা হয়েছে। আরবি ভাষায় কেবলমাত্র মুসলমানরাই কথা বলন না - অন্য ধর্মাবলম্বীদর মধ্যও আরবি ভাষাভাষী লোকজন রয়েছেন। তাছাড়া ওই রচনাটির কোন অংশই কোনা ধর্ম সম্পর্কে কোনা ধরনর ইঙ্গিত করা হয়নি। তারপরও যদি ওই গল্পটি কারা অনুভূতিতে আঘাত দিয়ে থাকে তাহল সে জন্য আমরা আন্তরিকভাব দুঃখিত। কাউকে কোন ভাব দুঃখ দেয়াই ওই কৌতুকের উদ্দেশ্য নয়।
On plain reading of the Provisions of section 499 of the Penal Code, we find that whoever makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person. The explanation 4 provides that no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person, in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. Moreso, in view of third exception of the above Provision, subject-matter of printing is not defamation inasmuchas the opinion or joke was expressed in good faith not to harm the reputation of any person. Therefore we hold that the word used in the subject-matter of defamation is not a matter to hurt the religious feeling of the complainant in any manner whatsoever.
Moreso, in the re-joinder the petitioner expressed his sincere regret for publishing the same stating that it has done in good faith, and he had no intention to hurt anyone of his religious feelings. Therefore we hold that the continuation of the proceedings adopted and constituted against the petitioner in the aforesaid case is abuses of the process of the Court which is liable to be quashed. Thus the Rule having merit succeeds.
In view of the foregoing narrative the Rule is made absolute. The proceedings of C.R. case no. 498 of 1993 pending in the Court of Magistrate, first Class, Rangpur is hereby quashed.
Office is directed to communicate the order at once.