No order passed or action taken under this section shall be called in question in any court otherwise than in accordance with the provisions of section 96 of the Code.
Section 96 of the Code of Criminal Procedure provides that —
(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, but 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 division shall be in accordance with the opinion of the majority of those judges.
The order of forfeiture under section 95 of the Code can be valid only if:
(i) The Government has formed an opinion that the concerned document contains matter the publication of which is punishable under sections 124-A or 153-A or 153-B or 292 or 293 or 295-A of the Indian Penal Code; and
(ii) The order states the grounds on which the opinion is based.
Failure to comply with either of the conditions will invalidate the order.
The power under section 95 of the Code vests in the State Government. The State Government has the power to rescind the order by cancelling the notification issued under section 95 and to issue a fresh order. The notification need not incorporate the detailed reasons on the basis of which the State Government has formed its opinion.
Section 95 does not violate the guarantees contained in Articles 19(l) (a), (b) and (g) and also Article 21 of the Constitution. It is not necessary for the Government to hear the party or parties before the issue of the order as a specific remedy is provided for by section 96 of the Code.
In Chandanmal v. State of West Bengalit was held that the Koran being a sacred book and ‘an object held sacred by a class of persons’ within the meaning of section 295 of Indian Penal Code, against such a book no action can be taken under section 295-A of the Indian Penal Code. Consequently banning or forfeiture of the Koran is unthinkable and cannot be ordered under section 95 of the Code of Criminal Procedure.
To come within the ambit of section 295-A of the Indian Penal Code the intent must be both malicious and deliberate. 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 few solitary lines or quotations upon the declaration of forfeiture of the State Government, any magistrate may, by warrant, authorize any police officer not below the rank of sub-inspector to enter upon and search for such copies in any premises where these may reasonably suspected to be.
The order of forfeiture of the State Government cannot be questioned in any Court except on an application to the High Court within two months from the date of the order. The Special Bench constituted under section 96 of the Code has to confine its inquiry within the limits of sub-section (4) of section 96 of the Code.
Under this section it is the duty of the High Court to set aside an order of forfeiture if it is not satisfied that the grounds, on which the Government formed its opinion, could justify that opinion. It is not its duty to find for itself whether the book contained any such matter whatsoever so as to justify the order of forfeiture.
In Karnataka Dr. P.V. Narayanna published a novel in 1995 entitled ‘Dharmakarana’. On receiving objections, the State Government issued a notification under Section 95 of Cr.P.C. ordering the forfeiture of the book. A petition was filed under Section 95, Cr.P.C. The petition was dismissed by the High Court. A special leave petition was filed before the Supreme Court.
It was observed by the Apex Court that Section 95 of the Code does not by itself create criminal offence inasmuch as Sections of I.P.C. referred therein are merely descriptive which need to be prevented.
A declaration under Section 95 is preventive in nature. The onus of proof that the book was malicious and intended to outrage feelings of a group of citizens would not lie on State Government because intention has, to some extent, to be inferred from the nature of publication.
It was also made clear that forfeiture of a book, if called for in public interest, it must have preeminence over any individual interest. Efficacious remedy is available to the aggrieved party under Section 96 of the Cr.P.C. and Section 95 of the Code is not violative of Article 19(1) (a) of the Constitution.
It was held that the impugned notification shows that the State Government had applied its mind to the contents of the novel and the allegation made therein and taken a balanced and reasoned decision on the matter. Therefore, the notification declaring the forfeiture of book cannot be said to be made mala fide or without application of mind by Government.
Under Section 96, it is the duty of the High Court to set aside an order of forfeiture if it is not satisfied that the grounds, on which the Government formed its opinion that the books contained matters the publication of which would be punishable under anyone or more of Sections 124-A, 153-A or 295-A of the I.P.C., could justify that opinion. It is not its duty to find for itself whether the book contained any such matter whatever so as to justify the order of forfeiture.