JUDGMENT
Veeraswami, J.
1. The appellant who was the Editor and Publisher of a Tamil Weekly called ” Nathigam ” has been convicted of an offence under Section 295-A of the Indian Penal Code and sentenced to a fine of Rs. 200 on each of two counts in respect of two articles published in the Journal, dated 20th February, 1959. This appeal is directed against the conviction and sentence.
3. Malice, no doubt, is one of the important ingredients of the offence, under Section 295-A, and it is certainly for the prosecution to establish that element by proper evidence. But it has to be realised that malice is a state of the mind and often is not capable of direct and tangible proof. In almost all cases where it is required to be proved, it has to be inferred from the surrounding circumstances having due regard to the setting, background and connected facts in relation to editing and publishing articles of the nature here in question.
4. Learned Counsel for the appellant drew my attention to a dissenting judgment of a learned Judge of the Andhra Pradesh High Court in N. Veerabrahman v. State . That was a case under Section 99-A of the Code of Criminal Procedure in which the validity of the section was canvassed. The majority of the Full Bench reached the conclusion that the section did not offend Article 19 (1) (a) of the Constitution. The Book that was in question there was called ” Bible Bandaram ” which meant the treasure of the Bible. After examining the passages in the publication, the learned Chief Justice, who spoke for the majority view, stated that it was clear from the book that the author had not spared even the founder of the religion, Jesus Christ and he had described him as the offspring of an adulterious intercourse and this certainly offended the Christian religious beliefs. The dissenting view was expressed by Bhimasankaram, J., on the question of the validity of the section. But even he proceeded on the footing that the passages in the book constituted insults or attempts to insult the religion or the religious beliefs of Christians. But Bhimasankaram, J., pointed out that, that was not sufficient and that it must be shown that the aggrevated form of insult to religion was purported with the deliberate and malicious intention of outraging religious feelings of Christians. Observed the learned Judge:
However injudicious or regrettable the passages may be and deliberate as they may found to be, the presence of malice also must be established.
I do not think that on this point there was any disagreement in that case among the learned Judges and I respectfully agree that malice must be established, as I have already mentioned, by the prosecution by clear evidence.
5. In this case I find no difficulty in holding that malice is apparent from the very nature and tenor of the captions of the articles and the theme and contents thereof. As I already stated, the appellant himself does not dispute that the two articles were, with the deliberate intention, edited and published. The appellant did not also dispute that the articles were such as would offend the relative religions and religious beliefs of sections of Hindus and Christians. If so much is granted, malice must naturally and necessarily be implicit in and be apparent from those facts. Malice in one sense is a negation of bona fides. If a person knowing that his words, either uttered or written, are likely to offend or injure the religious faiths of others, indulges in them it would be difficult to hold that his act was done bona fide and without malice. It is true that the whole object of the Journal is, as evident from its title, to propagate atheism and it may be conceded that freedom of speech is one of the basic rights guaranteed by the Constitution. But the limits of the freedom end where the religions and religious beliefs are insulted or outraged. Section 295-A is obviously a reasonable restriction which is in public interest. In my opinion, therefore, the two articles squarely fall within the mischief of that section.
6. The appellant does not appear to be a first offender and the fine imposed is not excessive. The appeal is dismissed.