Supreme Court of India
VINOD DUA versus UNION OF INDIA & ORS. on 3 June 2021
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[2021] 12 S.C.R. 1071
VINOD DUA
v.
UNION OF INDIA & ORS.
(Writ Petition (Crl.) No. 154 of 2020)
JUNE 03, 2021
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Constitution of India: Art. 32 – Quashing of FIR under – Onfacts, FIR against petitioner-renowned journalist u/ss. 124-A, 505,501, 268 for some statements made by him in his talk show on socialmedia about handling of the Covid Pandemic; and that the PrimeMinister has used deaths and terror attacks to garner votes – Act isof instigating violence against the government and the PrimeMinister, and creating panic amongst the public and disturbing thepublic peace by trying to spread false information – Petition u/Art.32 by the petitioner for quashing of FIR and seeking directions forprotection of journalists – Held: All the offences set out in the FIRnot made out – Citizen has a right to criticize or comment upon themeasures undertaken by the Government and its functionaries, solong as he does not incite people to violence against the Governmentor with the intention of creating public disorder – ss. 124A and 505comes into play only when the words or expressions have pernicioustendency or intention of creating public disorder or disturbance oflaw and order – Statements at best can be termed as expression ofdisapprobation of actions of the Government and its functionaries– They were not made with the intent to incite people or showedtendency to create disorder or disturbance of public peace by resortto violence – Statements attributed to petitioner that Prime Ministerused deaths and terror attack to garner votes not made in the TalkShow – Thus, prosecution of the petitioner for the offencespunishable u/ss. 124A and 505 (1)(b) unjust and violative of itsrights guaranteed u/Art. 19(1)(a) – Furthermore, offences u/ss. 501and 268 not made out, as also offences punishable u/ss. 52 and 54of the Disaster Management Act, 2005 and s.188 IPC – As regards,prayer that no FIR be registered against a person belonging tomedia with at least 10 years of standing unless cleared by theCommittee as suggested, the constitution of the Committee is outside
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Athe scope of the statutory framework, and any relief granted interms thereof would amount to encroachment upon the field reservedfor the legislature – Thus, FIR quashed, however, prayer for theconstitution of the Committee rejected – Separation of powers –Penal Code, 1860 – ss.124-A, 505, 501, 268.BPenal Code, 1860: s. 124A – Sedition – Applicability of s.124A, when – Explained in terms with the *Kedar Nath Singh vs.State of Bihar’s case.
Partly allowing the writ petition, the Court HELD: 1.1 The FIR against the petitioner is quashed; butCthe prayer that no FIR be registered against a person belongingto media with at least 10 years of standing unless cleared by theCommittee as suggested, is rejected. [Para 68][1177-C-D]
1.2 The practice of directing that the High Court beapproached first even in cases of violation of fundamental rights,Dis more of a self- imposed discipline by this Court; but in glaringcases of deprivation of liberty, this Court has entertained petitionsunder Article 32 of the Constitution. Apart from the fact that theright claimed by the petitioner is one under Article 19 (1) (a) ofthe Constitution, the second prayer made by the petitioner canEeffectively be considered only in a writ petition. Going by thenature of the second prayer, relegating the petitioner to file apetition under Article 226 of the Constitution, may not beappropriate. Rather, the issue must ideally be settled bythis Court. Consequently, the preliminary objection raised bythe respondents is not accepted. [Paras 24-25][1106-G-H;F1107-D-F]
Romesh Thappar v. The State of Madras [1950] SCR594; Jagisha Arora vs. State of Uttar Pradesh andAnother (2019) 6 SCC 619; Priya Prakash Varrier andOthers vs. State of Telangana and Another (2019) 12GSCC 432:[2018] 10 SCR 615; Amish Devgan vs. Unionof India and Others (2021) 1 SCC 1:2020 (12) JT 300– referred to.
1.3 On facts, it has been established that the statementsattributed to the petitioner that the Prime Minister had usedH
deaths and terror attacks to garner votes or that the PrimeMinister had garnered votes through acts of terrorism, were notmade in the Talk Show. The true translation of the original episodein Hindi, has been placed on record. No such assertions find placein the true translation nor were any objections raised that thetranslated version was in any way incorrect. The petitioner didsay that the air strikes by India on Balakot and attacks onPathankot and Pulwama were used as political events to garnervotes but no allegations were made against the Prime Ministeras was stated in the F.I.R. It is true that some of the portions ofthe Talk Show do assert that there were not enough testingfacilities; that there was no information as to the quantum of PPEkits/ suits, N95 masks, and masks of three ply that were availablein the country; that the respiratory devices and sanitizers werebeing exported till 24th March (2020) instead of keeping themfor use in the country; that the supply chains got disrupted dueto blockage of roads; and that the migrant workers was a hugeissue. It was also asserted that with supply chains being closed,some people had feared food riots, which had not happened inthe country. [Para 27][1108-C-G]
1.4 Leaving aside two incorrect statements made in theFIR, the following assertions from the talk show are relied uponto state that the offences as alleged are made out:
(i) The statement in the talk show are that it is commonknowledge that the countries all over the world found themselveswanting in terms of infrastructure and facilities to cope up withthe effects of Covid-19 Pandemic. Considering the size of thepopulation of this country, the testing facilities to gauge and checkthe spread and effect of the Pandemic, at least in the initial stagesof the surge, were not exactly adequate. If in that light, thepetitioner made any comments about testing facilities or PPESuits, N-95 masks and masks of 3 ply, those comments in firsttwo statements, cannot be anything other than appraisal of thesituation then obtaining. It was not even the case of therespondents that these two statements were factually incorrect.
(ii) The submission of the respondents was that the ban onexport of ventilator and sanitizers was imposed on 19.03.2020
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Aand the said statement was therefore not quite correct. It wasalso submitted that the petitioner produced no evidence of actualexports before the ban was imposed on 19.03.2020 and that therewere no exports immediately proceeding the imposition of ban.
(iii) The effect of Nation-wide lockdown which came intoBeffect from the midnight intervening 24.03.2020 and 25.03.2020,according to the petitioner, resulted in disruption of supply chainsdue to blockage of roads. It was the submission of the respondentsthat by Consolidated Guidelines issued on 28.03.2020 (which wasstated to be an order under Section 188 IPC), adequate stepswere directed to be taken to ensure that there was no disruptionCin supply of essential goods. It must be stated that the fourthstatement did acknowledge that the transportation of essentialgoods was being allowed and, in that sense, it was more or lesscorrect depiction of the state of affairs then prevailing.
(iv) It was submitted that statements regarding food riotDnot only gave factually incorrect information but amounted to incitethe general public and that it was because of such incorrectinformation, the movement of migrant workers had begun. Onthe other hand, reliance was placed by the petitioner on theinterview of former Chief Statistician reported on 28.03.2020 thatEif food requirements of migrant workers were not fulfilled amidcountrywide lockdown, food riots could be a real possibility. Itwas submitted that by the time the talk show was uploaded, themovement of migrant workers had already started and was at thepeak. [Paras 38 and 39][1144-F-G; 1145-F-H; 1146-A-F]
F1.5 What was prevailing on 30.03.2020 was therefore clearand migrant workers in huge numbers were moving towards theirhometowns/villages. In the circumstances, there would naturallybe some apprehension about the shelter and food to be providedto them en-route. The former Chief Statistician had expressed apossibility with the intent to invite the attention of the authorities.GIf the petitioner in his talk show uploaded on 30.03.2020, that iseven before the matter was taken up by this Court, made certainassertions in his statements, he would be within his rights to saythat as a Journalist he was touching upon issues of great concernso that adequate attention could be bestowed to the prevailing H
problems. It cannot be said that the petitioner was spreading anyfalse information or rumours. It is not the case of the respondentsthat the migrant workers started moving towards theirhometowns/villages purely as a result of the statements made bythe petitioner. Such movement of migrant workers had begunlong before. In the circumstances, these statements can neitherbe taken to be an attempt to incite migrant workers to startmoving towards their hometowns or villages nor can it be takento be an incitement for causing any food riots. The situation wasdefinitely alarming around 30.03.2020 and as a journalist if thepetitioner showed some concern, could it be said that hecommitted offences as alleged. [Para 42][1149-A-E]
1.6 A citizen has a right to criticize or comment upon themeasures undertaken by the Government and its functionaries,so long as he does not incite people to violence against theGovernment established by law or with the intention of creatingpublic disorder; and that it is only when the words or expressionshave pernicious tendency or intention of creating public disorderor disturbance of law and order that Sections 124A and 505 IPCmust step in. The statements by the petitioner, if read in the lightof the principles emanating from the decision in Kedar NathSingh’s case and against the backdrop of the circumstances whenthey were made, can at best be termed as expression ofdisapprobation of actions of the Government and its functionariesso that prevailing situation could be addressed quickly andefficiently. They were certainly not made with the intent to incitepeople or showed tendency to create disorder or disturbance ofpublic peace by resort to violence. The petitioner was within thepermissible limits laid down in the decision of this Court in KedarNath Singh’s case. It may be that certain factual details regardingthe date when the ban came into effect were not completelycorrect. However, considering the drift of the entire talk showand all the statements put together it cannot be said that thepetitioner crossed the limits set out in the decision of this Courtin Kedar Nath Singh’s case. Thus, the prosecution of the petitionerfor the offences punishable under Sections 124A and 505 (1) (b)IPC would be unjust. Those offences, going by the allegations inthe FIR and other attending circumstances, are not made out at AB
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Aall and any prosecution in respect thereof would be violative ofthe rights of the petitioner guaranteed under Article 19(1)(a) ofthe Constitution. [Para 43, 44][1149-E-H; 1150-A-D]
*Kedar Nath Singh vs. State of Bihar (1962) Supp. 2SCR 769 – followed.
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1.7 The other offending provision referred to in the FIR isSection 501 IPC which is printing or engraving a matter which isdefamatory to any person. As a matter of fact, the cognizancewith respect to an offence punishable under Chapter XXI IPC(Section 501 IPC is part of said Chapter) can be taken by a CourtConly upon a complaint made by the person aggrieved. Withoutgoing into such technicalities, there is nothing defamatory in thestatements made by the petitioner. Further, the statements ofthe petitioner would be covered by the second and thirdexceptions to Section 499 IPC. Thus, the instant proceedings, inso far as Section 501 IPC is concerned, also deserve to beDquashed. [Para 45][1150-D-G]
Jawaharlal Darda and Others vs. ManoharraoGanpatrao Kapsikar and Another (1998) 4 SCC 112;Rajendra Kumar Sitaram Pande and Others vs. Uttamand Another (1999) 3 SCC 134 : [1999] 1 SCR 580;EVivek Goenka and Others vs. Y.R. Patil (2000) 9 SCC87; S. Khushboo vs. Kanniammal and Another (2010)5 SCC 600:[2010] 5 SCR 322 – relied on.
1.8 The other provision referred to in the FIR was s. 268IPC which is nothing but the definition of “Public Nuisance” andFis not a penal provision in itself which prescribes any punishment.It was also not the case of the respondent that any penal provisioninvolving element of “Public Nuisance” was attracted in theinstant case. Thus, all the offences set out in the FIR are notmade out at all. [Paras 46, 47][1150-G; 1151-A-B]
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1.9 As regard to the offences which were not spelt out inthe FIR, it was contended by the respondents that in addition tothe offences specifically set out in the FIR, the petitioner wouldalso be guilty of the offences punishable under Sections 52 and54 of the Disaster Management Act, 2005 and Section 188 IPC.
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According to the respondents, the statements made by thepetitioner during the Talk Show amounted to circulating a falsealarm and would therefore be covered by Section 54 of theDisaster Management Act, 2005; and that the petitioner wouldalso be guilty of having violated communications dated 24.3.2020and 28.3.2020 and thereby committed offences under Section 188IPC. The technical issue need not be gone into whether theinitiation of the proceedings in respect of the offences punishableunder DM Act and/or under Section 188 IPC could only be afteran appropriate complaint would be made in writing as submittedby the petitioner, as none of these offences as submitted by therespondents get attracted in the instant matter. The statementsmade by the petitioner were within the limits prescribed by thedecision of this Court in Kedar Nath Singh’s case and that thestatements were without any intent to incite people for creatingpublic disorder. It was not even suggested that as a result ofstatements made by the petitioner any situation of panic hadresulted in any part of the country. In the circumstances, withoutgoing into the technicalities whether the initiation of theproceedings could only be through a complaint filed in conformitywith Section 60 of the Disaster Management Act, 2005 or Section195 of the Code, the provisions of the Disaster ManagementAct, 2005 or Section 188 IPC are not attracted at all. [Paras 48,51, 52][1151-B-D; 1152-C-D; 1153-A-C]
*Kedar Nath Singh vs. State of Bihar (1962) Supp. 2
SCR 769 – followed.
*Kedar Nath Singh vs. State of Bihar (1962) Supp. 2
SCR 769 – followed.
1.10 The second prayer made in the Writ Petition is askingfor the constitution of the Committee completely outside thescope of the statutory framework. Similar such exercise ofdirecting constitution of a Committee was found inconsistent withthe statutory framework in the decisions discussed. The directionsissued in Jacob Mathew’s case had received approval by aConstitution Bench in Lalita Kumari’s case, but those guidelinesissued in Jacob Mathew’s case stand on parameter which arecompletely distinguishable from the subsequent decisions of threeJudge Bench of this Court in Union of India vs. State ofMaharashtra and Others and in Social Action Forum for ManavAdhikar and Another vs. Union of India, Ministry of Law and Justice ABC
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Aand Others. Any relief granted in terms of second prayer wouldcertainly amount to encroachment upon the field reserved forthe legislature. Therefore, the prayer is rejected and the WritPetition is dismissed to that extent. It must however be clarifiedthat every Journalist would be entitled to protection in terms ofKedar Nath Singh’s case, as every prosecution under SectionsB124A and 505 IPC must be in strict conformity with the scopeand ambit of said Sections as explained in, and completely in tunewith the law laid down in Kedar Nath Singh’s case. [Paras 66,67][1176-F-H; 1177-A-C]
Jacob Mathew’s case v. State of Punjab and AnotherC(2005) 6 SCC 1:[2005] 2 Suppl. SCR 307; LalitaKumari’s case v. Government of Uttar Pradesh andOthers (2014) 2 SCC 1:[2013] 14 SCR 713; ArnabRanjan Goswami vs. Union of India and Others (2020)14 SCC 12:[2020] (8) SCR 222; Arnab RanjanDGoswami vs. Union of India and Others (2020) 14 SCC51; State of H.P. vs. Pirthi Chand and Another (1996) 2SCC 37:[1995] 6 Suppl. SCR 29; State of UP vs. OPSharma (1996) 7 SCC 705:[1996] 2 SCR 236; VijayShekhar and Another vs. Union of India and Others(2004) 4 SCC 666; Rini Johar and Another vs. State ofEMadhya Pradesh and Others (2016) 11 SCC 703:[2016]5 SCR 579; Monica Kumar and Another vs. State ofUttar Pradesh and Others (2017) 16 SCC 169:[2017]8 SCR 550; Laxmibai Chandaragi B. and Another vs.State of Karnataka and Others (2021) 3 SCC 360; RamjiFLal Modi vs. State of U.P AIR (1957) SC 620:[1957]SCR 860; Daryao and others v. The State of U.P. andothers [1962] 1 SCR 574; Union of India vs. PaulManickam and Another (2003) 8 SCC 342:[2003] 4Suppl. SCR 618; Kedar Nath Singh’s case v. State ofBihar Bangobashi case (Queen Empress v. JogendraGChunder Bose (1892) I.L.R. 19 Cal. 35; Queen-Empressv. Balgangaddhar Tilak (1898) I.L.R. 22 Bom. 112;Balgangadhar Tilak vs. Queen Express, (1897) L.R.25 I.A.I.; Niharendu Dutt Majumdar v. The KingEmperor (1942) F.C.R. 38; King Emperor vs., SadashivHNarayan Bhalerao74 IA 89;Indian Express Newspapers (Bombay) Private Ltd. & Ors. vs. Union ofIndia & Ors (1985) 1 SCC 641:[1985] 2 SCR 287;S. Rangarajan v. P. Jagjivan Ram & Ors. 1989 (2) SCC574:[1989] 2 SCR 204; The Superintendent, CentralPrison, Fatehgarh and another v. Dr. Ram ManoharLohia AIR 1960 SC 633:[1960] SCR 821; State ofHaryana and Others vs. Bhajan Lal and Others (1992)Suppl 1 SCC 335:[1990] 3 Suppl. SCR 259; ManzarSayeed Khan vs. State of Maharashtra and Another(2007) 5 SCC 1:[2007] 4 SCR 907; Patricia Mukhimvs. State of Meghalaya and Others 2021 SCC OnLineSC 258; Daulat Ram v. State of Punjab AIR 1962 SC1206:[1962] Suppl. SCR 812; C. Muniappan andOthers v. State of Tamil Nadu (2010) 9 SCC 567:[2010]10 SCR 262; P. Sirajuddin’s Etc. vs. State of Madras,Etc. (1970) 1 SCC 595:[1970] 3 SCR 931; Union ofIndia v. State of Maharashtra and others (2020) 4 SCC761:[2019] 12 SCR 1125; Social Action Forum ForManav Adhikar and another v. Union of India, Ministryof Law and Justice and others (2018) 10 SCC443:[2018] 12 SCR 19; Rajesh Sharma’s and others v.State of Uttar Pradesh and another (2018) 10 SCC472:[2017] 9 SCR 529; Dr. Subhash KashinathMahajan’s v. State of Maharashtra and another (2018)6 SCC 454: [2018] 4 SCR 877 – referred to.
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Case Law Reference
1080SUPREME COURT REPORTS
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)No. 154 of 2020.
(Under Article 32 of the Constitution of India)
Vikas Singh, Sr. Adv., Varun Singh, Nitin Saluja, Ms. DeepeikaKalia, Kapish Seth, Akshay Dev, Ms. Deepti Arya, Rishabh Rana,Mritunjay Singh, Satwik Mishra, Advs. for the Petitioner.
Tushar Mehta, SG., S.V. Raju, ASG., Vikas Mahajan, AAG.,Mahesh Jethmalani, Vinay Navare, Sr. Advs., B.V. Balaram Das, Ms.Kanu Agrawal, Vinod Sharma, Neeraj, Ms. Siya Chaudhary, Ravi Sharma,Satya Ranjan Swain, Shoumendu Mukherjee, Vijay Joshi, HimanshuPathak, Ms. Priya Mishra, Ms. Damini Garg, Ms. Vandana Deewan,Surender Kumar Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by UDAY UMESH LALIT, J.
1. This petition under Article 32 of the Constitution of India praysfor following principal reliefs:- “a.Quash FIR No.0053 dated 06.05.2020registered at Police Station Kumarsain, DistrictShimla, Himachal Pradesh.
b.Direct that henceforth FIRs against personsbelonging to the media with at least 10 yearsstanding be not registered unless cleared by acommittee to be constituted by every StateGovernment, the composition of which shouldcomprise of the Chief Justice of the High Courtor a Judge designated by him, the leader of theOpposition and the Home Minister of the State.”
2. FIR No.0053 dated 06.05.2020 was registered pursuant toComplaint made by respondent No.3 herein to the following effect:- “On 30[th] March, 2020, Mr. Vinod Dua, in his show namely TheVinod Dua Show on YouTube, has made unfounded and bizarreallegations (details of particular moments are provided below) bystating following facts at 5 minutes and 9 seconds of the video, hehas stated that Narendra Modi has used deaths and terror attacksto garner votes. At 5 minutes and 45 seconds of the video, he A
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claims that the government does not have enough testing facilitiesand has made false statements about the availability of the PersonalProtective Kits (PPE) and has stated that there is no sufficientinformation on those. Further, he also went on to state thatventilators and sanitizer exports were stopped only on 24[th] March2020. A true copy of the video link is: https:/ /www.youtube.com/watch?vvijFD_tgvv8. That the said allegations are false and theclaims are bizarre and unfounded. Mr. Vinod Dua has spreadfalse and malicious news by stating that the PM has garneredvotes through acts of terrorism. This directly amounts to incitingviolence amongst the citizens and will definitely disturb publictranquillity. This is an act of instigating violence against thegovernment and the Prime Minister. He also creates panic amongstthe public and disturbs public peace by trying to spread falseinformation, such as, the government does not have enough testingfacilities which is absolutely false. The government has sufficientfacilities to curb the pandemic and have been taking all themeasures to control the pandemic. By making such falsestatements, Mr. Vinod Dua spread fear amongst the people. Thisvideo will only create a situation of unrest amongst the publicwhich will result in panic and people not obeying the lockdown tocome out and hoard essentials which is absolutely unnecessary.Mr. Vinod Dua has circulated these rumours with the intent todefeat the Lockdown by creating an impression that there is acomplete failure of the institution and it will become hard to survivethis lockdown, if not acted upon immediately. It is unfortunatethat during such a pandemic, which is of such a magnitude, insteadof helping out the citizens and encouraging them to stay at home,the show and the host, Mr. Vinod Dua, is only interested in raisinghis show’s TRP and making it successful. The rumours werespread with intent to cause, or which is likely to cause, fear oralarm to the public or to any section of the public, whereby anyperson may be induced to commit an offence against the state oragainst the public tranquillity. Since the matter relates to Publichealth, considering the gravity and seriousness of the matter, thisdishonest and fraudulent act of the Mr. Vinod Dua should be takenwith utmost seriousness. The aforesaid act of Mr. Vinod Dua isan offence punishable under Sections 124-A, 268, 501 and 505 ofthe Indian Penal Code, 1860 (IPC). Unless strict action is taken, it will result in unrest in public and go against public tranquillity.Hence, you are requested to take strict appropriate legal actionagainst Mr. Vinod Dua and punish him accordingly.”
3. The FIR dated 06.05.2020 thus pointedly referred to twosegments in the talk show uploaded on 30.03.2020 – one at 5 minutes 9seconds and the other at 5 minutes 45 seconds and generally dealt withthe drift of the assertions made by the petitioner in said talk show tosubmit that the actions on part of the petitioner amounted to offencespunishable under penal provisions referred to in the FIR. The transcriptof the relevant episode of the talk show has been placed on record andthe translation of the relevant portions is :- “At present I am talking about the ongoing corona virus andwhatever has happened in its context – how was our preparedness,when we were alerted and despite which why we were in slumber.When I refer to WE then I refer to the government. I present asmall analysis on which a few things have been stated by P.Chidambaram in an article in the Indian Express, some of this wehave also seen and you understand all of the rest very well. …..
Now, the national lockdown, desh bandhi, note bandhi, GST arethe three big events. Our work as media, we do not stoop, we arenot darbari, we are not from the government, our job is not todenigrate, our job is not also to criticize, our job is to do criticalappraisal of government’s work. We do not need anything fromthe government or anyone’s complaisance. Media has to do thiswork but unfortunately most of the media is towing the line of thegovernment or their stoogas. They look for support in everythingto turn everything into an event of the Pradhan Sewak and to toutthat as a big success. In the case of attacks on India on Pathnakotand Pulwama the same were used as political events to garnervotes, surgical strikes were also used as gain politically. The airstrikes by India on Balakot were also used as means of gettingvotes. To seek votes by turning everything into an event hasbecome the hallmark of this government, this is our call of dutyand our dharma to present these before you, so we are sayingthese.
Further, our biggest failure has been that we do not have enoughfacilities to carry out testing. Undoubtedly, ICMR and HealthMinistry maintain that corona in India is still in 2[nd] stage and has AB
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Anot reached in 3[rd] stage when community transmission takes place.At the present juncture India needs 7 lakh PPE suits, 6 lakh N95masks and 8 crore masks of three ply. Till now we do not haveany information how many we have and how many will becomeavailable by when. The ventilators needed in other countries andin India, respiratory devices and sanitizers were being exportedBtill 24 March instead of keeping these for use in our country. Supplychains got disrupted due to blockage of roads and now it is beingheard that transportation of essential goods has been allowed. Itis not difficult to imagine that when the supply chains have beenclosed, when the shops are closed, some people had gone to theCextent of fearing food riots which have not happened in our countrycould happen. Therefore the government is now taking stepswhich should have been taken at least 15 days earlier. On 11February, ICMR had forewarned, later Rahul Gandhi did the sameby writing a letter on 12 February and again 13 February but thegovernment kept sleeping.
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Now, the migrant labour which is a huge issue, the people wholeave their distant villages to earn their livelihoods here, who arethe backbone of the cities, who help in running our lives, our drivers,our daily wagers, construction workers, tailors, all those who dosmall odd jobs and somehow send money back home. There areEcertain states like Bihar which also run on money order economywhere it caused huge disruption and who started returning home.When people started returning from Mumbai on 10 March, thatshould have been a big signal for the government about the effectthe complete lockdown in the whole country can bring about butFno lessons were learnt. Besides, police did not get any instructionsabout how to handle this, the face of brutality and inhumanity ofthe police was seen and now the face of the police is also seenwhile distributing food and also their face of shaming those notfollowing the lockdown. These steps could have been taken earlieralso because using force is not the only way of the police.G
4. Certain factual developments that occurred after the registrationof the FIR were noted in the Order dated 14.06.2020 passed by thisCourt as under:- “A Notice for Appearance dated 11.06.2020 was issued by theHoffice of Station House Officer, Police Station Kumarsain, District
Shimla, Himachal Pradesh, under Section 160 Cr.P.C. to thefollowing effect:
“A Case FIR No.53/2020 Dated 06.05.2020 U/s 124A, 268,501, 505 IPC has been registered in Police Station Kumarsain,Distt. Shimla, HP on the complaint of Sh. Ajay Shyam, Vill &PO Kiara, Tehsil Theog, Distt. Shimla HP against (You) Mr.Vinod Dua Journalist, HW News Network. In above said caseyour presence is required for interrogation.
So you are therefore directed to join investigation at PoliceStation Kumarsain on or before 13/06/2020 at 10 am sharp.”
A response to the above notice was sent by the petitioner on12.06.2020 stating inter alia:
“I have received your notice dated 11.06.2020 seeking myphysical presence for the interrogation of FIR dated 06.05.2020,on 13.06.2020 before the police station in Kumarsain, HimachalPradesh.
I wish to bring to your notice as per Himachal Pradesh covidguidelines dated 11.05.2020, any person coming from the redzone is directed to be in institutional quarantine for a period of14 days. Since I reside in New Delhi which is currently a redzone, I would be forced to be in quarantine for a period of 14days.
Further, I wish to bring to your kind notice that I am 66 plusyears old. Therefore, as per MOH guidelines, all citizens of 65plus age are asked not to travel due to health safety risks.
Further I suffer from Thalassemia minor with Iron deficiencyanaemia, pancytopenia (low red & white blood cell and lowplatelet count), chronic liver disease with portal hypertension& splenomegaly, diabetes and hypothyroidism. I also haveoesophageal varices with a high risk of bleeding. Thereforedoctors have stated that stepping out of my house would belife endangering. I am attaching my medical certificateherewith.
Meanwhile, I would join the investigation through email or anyother online mechanism.”
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AWhile issuing notice in the petition, the Order dated 14.06.2020recorded further: - “Mr. Vikas Singh, learned Senior Counsel appearing for thepetitioner submitted that the Himachal Pradesh Police hadcontacted the petitioner day before yesterday in connection withthe investigation in the crime referred to above.
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Considering the circumstances on record, we deem it appropriateto direct as under:
(a) Pending further orders, the petitioner shall not be arrested inconnection with the present crime; C
(b) However, the petitioner in terms of the offer made by him inhis communication dated 12.06.2020, shall extend full cooperationthrough Video Conferencing or Online mode; and
(c) The Himachal Pradesh Police shall be entitled to carry on theinvestigation including interrogation of the petitioner at his residenceafter giving him prior notice of 24 hours and complying with theSocial Distancing norms prescribed during Covid-19 Pandemic.
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The affidavit in reply filed on behalf of the State shall indicate thesteps taken during investigation and a complete Status Reportshall be filed before the next date of hearing. The concernedInvestigating Officer shall remain personally present in case theopen Court hearing is resumed by this Court or shall be availablein case the proceedings are taken up through Video Conferencingmode.”
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5. Some of the grounds raised in the instant writ petition relatingFto the prayers quoted hereinabove are:
“A. Because the contents in the video is pure and simple criticalanalysis by the Petitioner of the functioning of the Governmentand cannot by any stretch of imagination be said to be offencesunder Sections 124-A, 268, 501, 505 of IPC.
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B. Because the decisive ingredient for establishing the offence ofsedition under Section 124-A IPC is the doing of certain acts whichwould bring to the Government established by law in India hatredor contempt etc. which would incite violence or create publicdisorder. In the present case, there is not even a suggestion that H
the Petitioner did anything against the Government of India orany other Government of the State.
R. Because seeking quashing of the FIR dated 06.05.2020 is partprayer, the petitioner through this petition is also seeking guidelinesfrom this Hon’ble Court in respect of lodging of FIRs againstpersons belonging to the media of a particular standing as done inthe case of medical professionals vide judgment in Jacob Mathew
v. State of Punjab (2005) 6 SCC 1 para 51, 52 affirmed by theConstitution Bench Judgment in Lalita Kumari v. Government ofUttar Pradesh and others (2014) 2 SCC 1 para 115.”
6. The affidavit in reply filed on behalf of the State referred toSections 52 and 54 of the DM Act[1] as under:
“At this juncture, it may be noticed that the entire world is passingthrough an unprecedented international crises in the form of apandemic. India also is no exception. In case of a pandemic, anyfalse news necessarily have a tendency of creating panic and,therefore, the Disaster Management Act provides for certainoffences and penalties. Sections 52 and 54 of the DisasterManagement Act read as under:- “Section 52. Punishment for false claim.- Whoever knowingly makes a claim which he knows or hasreason to believe to be false for obtaining any relief, assistance,repair, reconstruction or other benefits consequent to disasterfrom any officer of the Central Government, the StateGovernment, the National Authority, the State Authority or theDistrict Authority, shall, on conviction be punishable withimprisonment for a term which may extend to two years, andalso with fine.
Section 54. Punishment for false warning.- Whoever makes or circulates a false alarm or warning as todisaster or its severity or magnitude, leading to panic, shall onconviction, be punishable with imprisonment which may extendto one year or with fine.”
Thereafter, the affidavit indicated following steps taken by theInvestigating machinery:
1 The Disaster Management Act, 2005
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“Having found that complaint disclosed cognizable offence, theFIR was registered. In respectful submission of the respondent,since a FIR discloses prima facie commission of cognizanceoffence, no interference may be warranted.
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That after registration of FIR, on 07.05.2020 the complainant wascalled in the Police Station but he did not appear as he was out ofstation. On 08.05.2020 complainant joined the investigation in thePolice Station and produced one DVD containing telecast dated30.03.2020 as referred in the FIR which was taken into possessionby the Investigating Officer through seizure memo and statementof Sh. Ajay Shyam was recorded u/s 161 Cr.P.C.
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That on 11.05.2020, Investigating Officer visited Cyber CrimePolice Station from where Notice u/sec 91 Cr.P.C. was sent toGoogle and YouTube through e-mail for obtaining information inrespect to URL of the channel and URL of the post.”
D7. The original complainant (Respondent No.3) stated in hisresponse as under:
“It is submitted that, on 30.03.2020, the petitioner in his show,‘The Vinod Dua Show’ telecasted on You Tube in Episode No.255made false allegations regarding preparedness for the pandemicECovid-19 which were clearly in violation of Sections 124-A, 268,501 and 505 IPC. The entire content/transcript of the episodehas been reproduced in the Writ Petition at pages 45 onwards atAnnexure A-2.
It is submitted that, on 21.04.2020, when the respondent wassurfing on the internet on his mobile that, he had the occasion towatch the said alleged video of the petitioner. He strongly feltthat the contents of the video had a tendency to create disturbanceof public peace against the government established by law.
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It is submitted that, in the present case, prima facie the offencesu/s 124-A, 268, 501 and 505 of the IPC are clearly made out andmore serious offences will emerge once the material supplied bythe answering respondent is investigated, and therefore, there isno ground for quashing the present FIR. If the statements in the G
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video are seen in its entirety, then the mala fide intention of thepetitioner is apparent and all is being said to incite people andcreate disaffection and hatred in the minds of the people againstthe Government of India and that too during these difficult timesof pandemic Covid-19.”
Respondent No.3 then referred to the other episodes of talk showof the petitioner uploaded on 02.03.2020, 31.03.2020, 01.04.2020 and01.06.2020 to emphasize the alleged tendency on part of the petitionerof making statements which were devoid of truth.
8. The Status Report placed for perusal of this Court in pursuanceof the order dated 14.06.2020, inter alia, gave details about HW Newsowned by Theo Connect Private Ltd.
9. Appearing for the petitioner, Mr. Vikas Singh, learned Seniorcounsel submitted: -
A) The statements in the FIR that, “Hon’ble Prime Minister usedthreats and terror acts to garner votes”; and “Prime Minister garneredvotes through act of terrorism” were factually incorrect. No suchassertions were made by the petitioner.
B) The basic allegations in the FIR were required to be seen inthe light of the law laid down by this Court in Kedar Nath Singh vs.State of Bihar[2] and subsequent cases. Viewed thus, the provisions ofSection 124A of the IPC[3] would not get attracted at all.
C) As a journalist, the petitioner was entitled to and did nothingmore than critical analysis of the functioning of the Government.
D) The ingredients constituting offences under Sections 501 and505 of the IPC[3] were also not established.
E) Consequently, the criminal proceedings initiated against thepetitioner being abuse of the process and being violative of thefundamental rights guaranteed under the Constitution of India, the samebe quashed.
10. In support of the second prayer made in the petition, Mr. Singhsubmitted: - 2 (1962) Supp. 2 SCR 769
3 The Indian Penal Code, 1860
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AIn Jacob Mathew v. State of Punjab and Another[4], this Courtissued certain guidelines with regard to prosecution of MedicalProfessionals accused of rashness or negligence while discharging theirprofessional duties; which decision was not only affirmed by theConstitution Bench of this Court in Lalita Kumari v. Government ofUttar Pradesh and Others[5] but this Court went on to explain that aBpreliminary inquiry could validly be insisted upon in certain categories ofcases. The case of journalists as a category be considered on similarlines, so that the journalists can, without any hindrance or fear ofunwarranted prosecution fulfil their duties. The protection suggested inthe second prayer would afford and ensure protection against suchCunwarranted prosecutions.
11. Mr. Tushar Mehta, learned Solicitor General of India appearedfor State of Himachal Pradesh and submitted: -
A) The instant petition under Article 32 of the Constitution ofIndia, seeking quashing of the FIR may not be entertained and theDpetitioner be relegated to remedies available under the Code[6].
B) At the present stage, the allegations made in the FIR wererequired to be presumed to be true and the matter be allowed to beinvestigated into.
EC) The attempts on part of the petitioner were to spreadmisinformation or incorrect information and cause panic in the perceptionof the general public; for example, the statement that some people fearedthat there could be food riots post lockdown was without any basis andhad clear potential of spreading panic. Such action would be coveredand be punishable under Sections 52 and 54 of the DM Act[1].FD) Whether such statements were deliberate or unintended andinnocent assertions, would be a matter for investigation and as such nocase was made out for interference at the present stage.
E) The episode in question was uploaded on 30.03.2020 andmigrant workers in many metropolitan cities and towns had startedGwalking towards their hometowns seriously jeopardising their ownhealth and safety and that of the society in general.
4 (2005) 6 SCC 1
H6 The Code of Criminal Procedure, 1973
12. In response to the second prayer, it was submitted by theSolicitor General: - The direction as prayed for, if granted would result in oversteppingthe field and area reserved for the Legislature. Any preliminary inquiryas suggested by the petitioner, would be clearly opposed to law and notsanctioned or permitted by law.
13. Mr. S.V. Raju, learned Additional Solicitor General whoappeared for Union of India, submitted: -
A) The matter would additionally come under Section 188 readwith Section 511 of the IPC[3] as the statements made by the petitionerwere in the nature of incitement to disobey the orders passed by theconcerned authorities pursuant to lockdown including the order dated31.03.2020[7] passed by this Court.
B) The bar under Section 195 of the Code with respect to casesfalling under Section 188 of the IPC[3] would be relatable to the stage ofcognizance by Court and not to anterior stages and as such the matterbe allowed to be investigated into.
C) Norms of Journalistic Conduct framed by the Press Council ofIndia (2010 Edition) obliged the petitioner to check the facts and datathoroughly from authentic sources and only thereafter he could makeany publication relating to the pandemic in a manner which was bereftof sensationalization or exaggeration. The conduct of the petitioner wascompletely wanting in this respect.
Paragraph 39 of said Norms, on which reliance was placed, reads:- “39. Reporting on Natural Calamities
(i) Facts and data relating to spread of epidemics or naturalcalamities shall be checked up thoroughly from authenticsources and then published with due restraint in a manner bereftof sensationalism, exaggeration, surmises or unverified facts.
(ii) Natural or manmade hazards become disasters throughacts of commission and omission of the society. Therefore, thedisastrous impact can be minimized by preventive action takenby all the stakeholders including the media.
7 Writ Petition (C) No.468 of 2020 (Alakh Alok Srivastava v. Union of India)
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A(iii) Media should give wide publicity to the do’s and don’tsand the potential benefits of disaster mitigation so that thesociety follows them before, during and after the occurrenceof the disasters. People should be detailed on standardguidelines. The issues of children and women which are themost vulnerable groups during and after disaster should beBhandled carefully by the media.
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(iv) It is necessary to have complete cooperation between themedia and all governmental and non-governmental agencies.The extent of the coordination and cooperation between themdetermines the nature, the degree and the scale of theCpreparedness to prevent or meet the disasters.”
14. Mr. Mahesh Jethamalani and Mr. Vinay Navre, learned SeniorAdvocates for respondent No.3 reiterated the submissions on behalf ofthe State and the Union and submitted that the severity and magnitudeof the pandemic called for strict adherence to the journalistic standardsDand observance of restraint; that it was the fake and inaccurate reportingthat triggered the migration of workers; that the petitioner definitelyintended to disrupt the public order and that his intention was apparentfrom statements that there could be food shortage resulting in food riots.In the written submissions filed by respondent No.3, the Order datedE24.03.2020 and Guidelines dated 28.03.2020 were highlighted and reliedupon to submit that by spreading false information regarding shortage offood, medical and other essential services, the petitioner had contravenedthe Order dated 24.03.2020 and Guidelines dated 28.03.2020 and therebycommitted offences punishable under Sections 188, 153, 124A and 503(b)of the IPC[3].F
15. In rejoinder, Mr. Singh repelled the arguments advanced bythe respondents and the essence of his contentions as found in the writtensubmissions was: -
A) The video of the telecast if watched in its entirety would showGthat the intent of the petitioner was to reaffirm the highest standard ofjournalism and independence of the media. The petitioner did his duty tobring forth the dispassionate and critical appraisal of the Government.His actions were fully covered by Explanations 2 and 3 of Section 124A,IPC[3] and exception to Section 505 IPC[3] and were within his Right of H
Free Speech and Expression guaranteed under Article 19 (1)(a) of theConstitution of India.
B) The complainant along with the State brought down their casefrom Section 124-A and Section 505 to Section 188 IPC[3] in their attemptto show that some cognizable offence was committed by the petitioner.The allegation that the petitioner disobeyed the order dated 31.03.2020[7]passed by this Court was rather absurd as the telecast was issued priorto the directions of this Court.
C) The offences under the DM Act[1] and Section 188 of the IPC[3]were not made out and, in any case, in the absence of a complaint interms of Section 60 of the DM Act[1] and Section 195 of the Code, thesubmissions made by the respondents called for rejection.
D) Further, the order dated 31.03.2020[7] gave liberty to the mediato have a free discussion about the pandemic; and that there was nounverified news nor was there any disobedience by the Petitioner. Theinformation in the telecast was based on the information available in thepublic domain. The interview of former Chief Statistician, Mr. PronabSen reported on 28.3.2020 and the notification dated 19.3.2020 and24.3.2020 prohibiting export of surgical masks, ventilators and sanitizerswere also placed on record.
In support of the contention that the petitioner had been a journalistof some standing, following awards / recognitions received by thepetitioner were highlighted in the written submissions: - “i. Padma Shri for Excellence in Journalism by the Hon’blePresident of India.
ii. The B.D. Goenka award for excellence in journalism, institutedby Late Shri Ram Nath Goenka and decided by an eminent jurycomprising Justice Sujata Manohar, Justice Bakhtawar Lentin andJurist Nani Palkhiwala.
iii. Haldighati Award for excellence in journalism by the MaharanaMewar Foundation.
iv. The RedInk Life Time Achievement Award by the MumbaiPress Club.
v. Conferred with D.Litt. (Honoris Causa) by ITM University,Gwalior.”
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AFinally, in support of the second prayer, the written submissionsstated: - “There would be similarity between the case of Jacob Mathews(2005) 6 SCC 1 and the present case as a large number of TVjournalists had been prosecuted in the recent past. More than 56FIR were registered against TV journalists. Explanations 2 and 3under Section 124-A IPC would clearly exempt media personsfrom the commission of the said offence and also the Exceptionunder Section 505 IPC would exempt media persons acting ingood faith, from the offence under said Section.”
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C16. In the written submissions filed on behalf of respondent No.3,the relevant text of communications dated 24.03.2020 and 28.03.2020was set out as under: - “f. On 24.03.2020, the Ministry of Home Affairs issued a publicorder proclaiming that in view of the orders that had been issuedDunder the Disaster Management Act, 2005 (lockdown measures)which read as under:
“1. In the wake of the orders that have been issued under theDisaster Management Act, 2005, there are possibilities ofrumour mongering, including those relating to shortage of foodand other essential services and commodities.
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2. In this context, it is imperative that all State Governmentsand Union Territory Administrations take necessary steps tosuitably publicise through all available means that food, medicaland civil supplies, and other essential services will be maintainedand there are adequate supplies available in the country.
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3. It is also requested that provisions of the Guidelines issuedin this regard, on the measures to be taken for containment ofCOVID-19 epidemic in the country, as annexure to MHA OrderNo.40-3/2020-D dated 24.03.2020 may be suitably disseminatedamongst the public. All measures may be taken to allayGapprehensions and maintain peace and tranquillity.”
g. On 26.03.2020 the PM had announced Pradhan Mantri GaribKalyan Anna Yojna under which 5 Kg of Rice or wheat (accordingto regional dietary preferences) per person and 1 kg of dal wouldbe provided to each family holding a ration card. This successful H
scheme covers 80 crore people and has now been extended tillNovember 2020. It is recognised inter alia by the WHO as thelargest food security programme in the world.
h. Two days before impugned telecast by the Petitioner, the MHAissued Consolidated Guidelines on 28.03.2020. As per guidelines:
“2. Offices of the State/Union Territory Governments, theirAutonomous Bodies, Corporations, etc. shall remain closed.
Exceptions:
h. Agencies engaged in procurement of agriculture products,including MSP operations.
i. ‘Mandis’ operated by the Agriculture Produce MarketCommittee or as notified by the State Government.
4. Commercial and private establishments shall be closed down.
Exceptions:
a. Shops, including ration shops (under PDS), dealing with food,groceries, fruits and vegetables, dairy and milk booths, meatand fish, animal fodder, fertilizers, seeds and pesticides.However, district authorities may encourage and facilitate homedelivery to minimize the movement of individuals outside theirhomes.
6. All transport services – air, rail, roadways – will remainsuspended.
Exceptions:
a.Transportation for essential good only.
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e. Cross land border movement of essential goods includingpetroleum products and LPG, food products, medical supplies.
f. Intra and inter-state movement of harvesting and sowingrelated machines like combined harvester and other agriculture/horticulture implements.”
i. The orders of 24.03.2020 as also the consolidated guidelines of28.03.2020 are both orders duly promulgated by public servants A
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and disobedience to them by any person renders that person liableto punishment u/s 188 IPC. In Alakh Alok Srivastava vs. Unionof India, this Hon’ble Court, in its order dated 31.03.2020 (Coram:Hon’ble Chief Justice and Hon’ble Justice Nageswara Rao) heldas under:
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“Neither in the petition nor in his written submission has thepetitioner denied that he had knowledge of the advisory of24.3.2020 and the consolidated guidelines issued by the MHAon 28.3.2020 nor of the Pradhan Mantri Garib Kalyan AnnaYojna announced on 26.3.2020. The petitioner telecast onE30.3.2020, as well as at least three subsequent telecasts fromApril to June, 2020 dealt with the prevailing COVID situationand the Governments’ response to the developing pandemic.While dealing with so sensitive subject on more than oneoccasion, it was incumbent upon the petitioner as a responsiblejournalist and by virtue of the Press Council Norms to keepFhimself abreast with Government orders, guidelines pertainingto the pandemic. Indeed, his telecast and written submissionindicate that he had express knowledge of some Governmentnotifications, issued prior to the telecast of 30.3.2020.”
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17. At the outset, we must consider whether the instant challengeraised through a petition under Article 32 of the Constitution and theprayers made in the petition can be entertained and considered speciallywhen the investigation into the alleged crime has not yet resulted in areport under Section 173 of the Code.
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18. It is the contention of the respondents that the petitioner berelegated to the remedies under the Code rather than entertain the instantpetition under Article 32 of the Constitution. Since the first prayer in thepetition seeks quashing of the FIR, reliance is placed on the decision ofthis Court in Arnab Ranjan Goswami vs. Union of India and Others[8]in which the relief was granted against multiple FIRs arising from thesame television show and pending at places other than Mumbai but thisCourt refused to exercise jurisdiction under Article 32 of the Constitutionfor the purpose of quashing the basic FIR registered at Mumbai. Therelevant discussion in that behalf was: -
“39. A litany of our decisions — to refer to them individually wouldbe a parade of the familiar — has firmly established that anyreasonable restriction on fundamental rights must comport withthe proportionality standard, of which one component is that themeasure adopted must be the least restrictive measure toeffectively achieve the legitimate State aim. Subjecting an individualto numerous proceedings arising in different jurisdictions on thebasis of the same cause of action cannot be accepted as the leastrestrictive and effective method of achieving the legitimate Stateaim in prosecuting crime. The manner in which the petitioner hasbeen subjected to numerous FIRs in several States, besides theUnion Territories of Jammu and Kashmir on the basis of identicalallegations arising out of the same television show would leave nomanner of doubt that the intervention of this Court is necessary toprotect the rights of the petitioner as a citizen and as a journalistto fair treatment (guaranteed by Article 14) and the liberty toconduct an independent portrayal of views.In such a situation torequire the petitioner to approach the respective High Courtshaving jurisdiction for quashing would result into a multiplicity ofproceedings and unnecessary harassment to the petitioner, who isa journalist.
40. The issue concerning the registration of numerous FIRs andcomplaints covering different States is however, as we will explain,distinct from the investigation which arises from FIR No. 164 of2020 at N.M. Joshi Marg Police Station in Mumbai. The petitioner,in the exercise of his right under Article 19(1)(a), is not immunefrom an investigation into the FIR which has been transferred A
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from Police Station Sadar, District Nagpur City to N.M. JoshiMarg Police Station in Mumbai. This balance has to be drawnbetween the exercise of a fundamental right under Article 19(1)(a)and the investigation for an offence under the CrPC. All otherFIRs in respect of the same incident constitute a clear abuse ofprocess and must be quashed.
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57. We hold that it would be inappropriate for the Court to exerciseits jurisdiction under Article 32 of the Constitution for the purposeof quashing FIR No. 164 of 2020 under investigation at N.M.CJoshi Marg Police Station in Mumbai. In adopting this view, weare guided by the fact that the checks and balances to ensure theprotection of the petitioner’s liberty are governed by the CrPC.Despite the liberty being granted to the petitioner on 24-4-2020[9],it is an admitted position that the petitioner did not pursue availableremedies in the law, but sought instead to invoke the jurisdictionDof this Court. Whether the allegations contained in the FIR do ordo not make out any offence as alleged will not be decided inpursuance of the jurisdiction of this Court under Article 32, toquash the FIR. The petitioner must be relegated to the pursuit ofthe remedies available under the CrPC, which we hereby do. TheEpetitioner has an equally efficacious remedy available before theHigh Court. We should not be construed as holding that a petitionunder Article 32 is not maintainable. But when the High Courthas the power under Section 482, there is no reason to by-passthe procedure under the CrPC, we see no exceptional grounds orreasons to entertain this petition under Article 32.There is a clearFdistinction between the maintainability of a petition and whether itshould be entertained. In a situation like this, and for the reasonsstated hereinabove, this Court would not like to entertain the petitionunder Article 32 for the relief of quashing the FIR being investigatedat N.M. Joshi Police Station in Mumbai which can be consideredGby the High Court. Therefore, we are of the opinion that thepetitioner must be relegated to avail of the remedies which areavailable under the CrPC before the competent court includingthe High Court.”(Emphasis supplied)
H9 Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 51
[UDAY UMESH LALIT, J.]
The further contention is that there are no exceptional grounds orreasons for entertaining the petition under Article 32 of the Constitutionnor is there any reason to bypass the procedure under the Code.
19. Reliance is also placed on the decision of this Court in AmishDevgan vs. Union of India and Others[10] which in turn referred to thedecisions of this Court in State of H.P. vs. Pirthi Chand and Another[11]and State of UP vs. OP Sharma[12] as well as the decision in ArnabRanjan Goswami[8]. In Amish Devgan[10], this Court did not refuse toentertain the petition at the threshold but proceeded to consider the issueson merits and finally declined the prayer made by the petitioner forquashing of the FIRs. The following observations are noteworthy: - “118. We respectfully agree with the aforesaid ratio. Ordinarilywe would have relegated the petitioner and asked him to approachthe concerned High Court for appropriate relief, albeit in the presentcase detailed arguments have been addressed by both sides onmaintainability and merits of the FIRs in question and, therefore,been dealt with by us and rejected at this stage. We do not, inview of this peculiar circumstance, deem it appropriate to permitthe petitioner to open another round of litigation; therefore, wehave proceeded to answer the issues under consideration.”
(Emphasis supplied)
At the same time, there is a line of cases in which even whileexercising jurisdiction under Article 32 of the Constitution of India, thisCourt was pleased to quash the concerned FIRs; some such casesbeing: -
(i) Vijay Shekhar and Another vs. Union of India and Others[13]
(ii) Rini Johar and Another vs. State of Madhya Pradesh andOthers[14]
(iii) Monica Kumar and Another vs. State of Uttar Pradeshand Others[15]
11 (1996) 2 SCC 37
13 (2004) 4 SCC 666
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[2021] 12 S.C.R.
A(iv) Priya Prakash Varrier and Others vs. State of Telanganaand Another[16]
(v) Laxmibai Chandaragi B. and Another vs. State ofKarnataka and Others[17]
20. In Priya Prakash Varrier[16], the nature of relief claimed wasBset out in paragraph 1 of the decision whereafter this Court relied uponthe dictum of the Constitution Bench in Ramji Lal Modi vs. State ofU.P.[18] that for an offence to come within the parameters of Section295-A of the IPC[3], the crime ought to have been committed withdeliberate and malicious intention of outraging the religious feelings of aCclass. Finding such element to be completely absent, the relief prayedfor was granted by this Court. The relevant observations of this Courtwere:- “1. In the instant writ petition preferred under Article 32 of theConstitution of India, the petitioners, namely, the actor, producerDand director of the movie, have prayed for quashing of FIR No.34 of 2018, dated 14-2-2018, registered at Falaknama PoliceStation, Hyderabad, Telangana. That apart, a prayer has also beenmade that no FIR should be entertained or no complaint underSection 200 of the Code of Criminal Procedure, 1973 should bedealt with because of the picturisation of the song “ManikyaEMalaraya Poovi” by Petitioner 1 in the film, namely, “Oru AdaarLove”.
7. It is worthy to note here that the constitutional validity of thesaid provision was assailed before this Court and a ConstitutionBench in Ramji Lal Modi v. State of U.P.[17], spoke thus: (AIRFpp. 622-23, paras 8-9)
“8. It is pointed out that Section 295-A has been included inChapter XV, Penal Code which deals with offence relating toreligion and not in Chapter VIII which deals with offencesagainst the public tranquillity and from this circumstance it isGfaintly sought to be urged, therefore, that offences relating toreligion have no bearing on the maintenance of public order ortranquillity and consequently a law creating an offence relating 16 (2019) 12 SCC 432
17 (2021) 3 SCC 360H18 AIR (1957) SC 620
to religion and imposing restrictions on the right to freedom ofspeech and expression cannot claim the protection of clause(2) of Article 19. A reference to Articles 25 and 26 of theConstitution, which guarantee the right to freedom of religion,will show that the argument is utterly untenable. The right tofreedom of religion assured by those articles is expressly madesubject to public order, morality and health. Therefore, it cannotbe predicated that freedom of religion can have no bearingwhatever on the maintenance of public order or that a lawcreating an offence relating to religion cannot under anycircumstances be said to have been enacted in the interests ofpublic order. Those two articles in terms contemplate thatrestrictions may be imposed on the rights guaranteed by themin the interests of public order.
9. The learned counsel then shifted his ground and formulatedhis objection in a slightly different way. Insults to the religionor the religious beliefs of a class of citizens of India, may, saysthe learned counsel, lead to public disorders in some cases, butin many cases they may not do so and, therefore, a law whichimposes restrictions on the citizens’ freedom of speech andexpression by simply making insult to religion an offence willcover both varieties of insults i.e. those which may lead topublic disorders as well as those which may not. The law insofaras it covers the first variety may be said to have been enactedin the interests of public order within the meaning of clause (2)of Article 19, but insofar as it covers the remaining variety willnot fall within that clause. The argument then concludes thatso long as the possibility of the law being applied for purposesnot sanctioned by the Constitution cannot be ruled out, the entirelaw should be held to be unconstitutional and void. We areunable, in view of the language used in the impugned section,to accede to this argument. In the first place clause (2) ofArticle 19 protects a law imposing reasonable restrictions onthe exercise of the right to freedom of speech and expression“in the interests of public order”, which is much wider than“for maintenance of” public order. If, therefore, certain activitieshave a tendency to cause public disorder, a law penalising suchactivities as an offence cannot but be held to be a law imposing AB
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Areasonable restriction “in the interests of public order” althoughin some cases those activities may not actually lead to a breachof public order. In the next place Section 295-A does not penaliseany and every act of insult to or attempt to insult the religion orthe religious beliefs of a class of citizens but it penalises onlythose acts of insults to or those varieties of attempts to insultBthe religion or the religious beliefs of a class of citizens, whichare perpetrated with the deliberate and malicious intention ofoutraging the religious feelings of that class. Insults to religionoffered unwittingly or carelessly or without any deliberate ormalicious intention to outrage the religious feelings of that classCdo not come within the section. It only punishes the aggravatedform of insult to religion when it is perpetrated with thedeliberate and malicious intention of outraging the religiousfeelings of that class. The calculated tendency of thisaggravated form of insult is clearly to disrupt the public orderand the section, which penalises such activities, is well withinDthe protection of clause (2) of Article 19 as being a law imposingreasonable restrictions on the exercise of the right to freedomof speech and expression guaranteed by Article 19(1)(a).Having regard to the ingredients of the offence created by theimpugned section, there cannot, in our opinion, be any possibilityEof this law being applied for purposes not sanctioned by theConstitution. In other words, the language employed in thesection is not wide enough to cover restrictions both withinand without the limits of constitutionally permissible legislativeaction affecting the fundamental right guaranteed by Article19(1)(a) and consequently the question of severability doesFnot arise and the decisions relied upon by learned counsel forthe petitioner have no application to this case.”
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12. In Mahendra Singh Dhoni v. Yerraguntla Shyamsundar[19],the justification for the registration of an FIR under Section 295-A had come up for consideration before this Court. AppreciatingGthe act done by the petitioner therein, the Court quashed the FIRfor an offence under Section 295-A IPC.
13. If the ratio of the Constitution Bench is appropriatelyappreciated, the said provision was saved with certain riders, inasmuch as the larger Bench had observed that the languageemployed in the section is not wide enough to cover restrictions,both within and without the limits of constitutionally permissiblelegislative action affecting the fundamental right guaranteed byArticle 19(1)(a) of the Constitution. The emphasis was laid onthe aggravated form of insult to religion when it is perpetratedwith the deliberate and malicious intention of outraging the religiousfeelings of that class.
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15. In view of the aforesaid, we allow the writ petition and quashFIR No. 34 of 2018. We also direct that no FIR under Section 154or any complaint under Section 200 of the Code of CriminalProcedure should be entertained against the petitioners becauseof the picturisation of the song. However, there shall be no orderas to costs.”
Notably, this decision rendered by a three Judge Bench of thisCourt was in the context of right claimed under Article 19(1)(a) of theConstitution, where the offence alleged was one under Section 295-A ofthe IPC[3]. Apart from quashing the FIR, this Court also directed that noFIR or complaint should be entertained against the petitioners becauseof the picturisation of the concerned song.
21. In the celebrated case of Romesh Thappar v. The State ofMadras[20], a Constitution Bench of this Court dealt with the preliminaryobjection that instead of entertaining a petition under Article 32 of theConstitution, the petitioner be asked to approach the High Court underArticle 226 of the Constitution, in following words:-
“ The Advocate-General of Madras appearing on behalf of therespondents raised a preliminary objection, not indeed to thejurisdiction of this Court to entertain the application under article 32,but to the petitioner resorting to this Court directly for such reliefin the first instance. He contended that, as a matter of orderlyprocedure, the petitioner should first resort to the High Court atMadras which under article 226 of the Constitution has concurrentjurisdiction to deal with the matter. He cited criminal revisionpetitions under section 435 of the Criminal Procedure Code, A
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Aapplications for bail and applications for transfer undersection 24 of the civil Procedure Code as instances where,concurrent jurisdiction having been given in certain matters to theHigh Court and the Court of a lower grade, a rule of practice hasbeen established that a party should proceed first to the latterCourt for relief before resorting to the High Court. He referred toBEmperor v. Bisheswar Prasad Sinha[21], where such a rule ofpractice was enforced in a criminal revision case, and called ourattention also to certain American decisions Urquhart v.Brown[22] and Hooney v. Kolohan[23], as showing that the SupremeCourt of the United States ordinarily required that whatever judicialCremedies remained open to the applicant in Federal and StateCourts should be exhausted before the remedy in the SupremeCourt - be it habeas corpus or certiorari - would be allowed. Weare of opinion that neither the instances mentioned by the learnedAdvocate-General nor the American decisions referred to by himare really analogous to the remedy afforded by article 32 of theDIndian Constitution. That article does not merely confer power onthis Court, as article 226 does on the High Court, to issue certainwrits for the enforcement of the rights conferred by Part III orfor any other purpose, as part of its general jurisdiction. In thatcase it would have been more appropriately placed amongEarticles 131 to 139 which define that jurisdiction.Article 32 provides a “guaranteed” remedy for the enforcementof those rights, and this remedial right is itself made a fundamentalright by being included in Part III. This Court is thus constitutedthe protector and guarantor of fundamental rights, and it cannot,consistently with the responsibility so laid upon it, refuse to entertainFapplications seeking protection against infringements of such rights.No similar provision is to be found in the Constitution of the UnitedStates and we do not consider that the American decisions are inpoint.”
22. The aforestated dictum was followed by another ConstitutionGBench of this Court in Daryao and others v. The State of U.P. andothers[24] as under:
21 I.L.R. 56 All. 15822 205 U.S. 17923 294 U.S. 10H24 (1962) 1 SCR 574
“ There can be no doubt that the fundamental right guaranteed byArt. 32(1) is a very important safeguard for the protection of thefundamental rights of the citizens, and as a result of the saidguarantee this Court has been entrusted with the solemn task ofupholding the fundamental rights of the citizens of this country.The fundamental rights are intended not only to protect individual’srights but they are based on high public policy. Liberty of theindividual and the protection of his fundamental rights are the veryessence of the democratic way of life adopted by the constitution,and it is the privilege and the duty of this Court to uphold thoserights. This Court would naturally refuse to circumscribe them orto curtail them except as provided by the Constitution itself. It isbecause of this aspect of the matter that in Romesh Thappar v.The State of Madras[20], in the very first year after the Constitutioncame into force, this Court rejected a preliminary objection raisedagainst the competence of a petition filed under Art. 32 on theground that as a matter of orderly procedure the petitioner shouldfirst have resorted to the High Court under Art. 226, and observedthat “this Court in thus constituted the protector and guarantor ofthe fundamental rights, and it cannot, consistently with theresponsibility so laid upon it, refuse to entertain applications seekingprotection against infringements of such rights”.”
23. In Jagisha Arora vs. State of Uttar Pradesh and Another[25],this Court entertained a petition under Article 32 of the Constitution againstan order of remand passed by the jurisdictional magistrate despite theobjection that the order must be challenged in accordance with theprovisions of the Code. The discussion was:- “2. The fundamental rights guaranteed under the Constitution ofIndia and in particular Articles 19 and 21 of the Constitution ofIndia are non-negotiable.
3. The learned Additional Solicitor General appearing on behalfof the State has opposed this allegation on various technical groundsincluding the ground that there is an order of remand passed bythe jurisdictional Magistrate. It is also contended that the HighCourt should have first been approached.
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A4. Citing the judgment of this Court in State ofMaharashtra v. Tasneem Rizwan Siddiquee[26], the learnedAdditional Solicitor General argued that the question of whether awrit of habeas corpus could be maintained in respect of a personwho was in police custody pursuant to a remand order passed bythe jurisdictional Magistrate in connection with the offence underBinvestigation, had already been settled by this Court. Thisapplication, is, therefore not maintainable. It was argued that theorder of remand ought to be challenged in accordance with theprovisions of the Criminal Procedure Code. It was also arguedthat this Court does not ordinarily entertain writ petitions unlessCthe High Court has first been approached.
5. As a matter of self-imposed discipline and considering thepressure of mounting cases on this Court, it has become the practiceof this Court to ordinarily direct that the High Court first beapproached even in cases of violation of fundamental rights.DHowever, Article 32 which is itself a fundamental right cannot berendered nugatory in a glaring case of deprivation of liberty as inthe instant case, where the jurisdictional Magistrate has passedan order of remand till 22-6-2019 which means that the petitioner’shusband Prashant Kanojia would be in custody for about 13/14days for putting up posts/tweets on the social media.E6. We are not inclined to sit back on technical grounds. In exerciseof power under Article 142 of the Constitution of India this Courtcan mould the reliefs to do complete justice.
7. We direct that the petitioner’s husband be immediately releasedFon bail on conditions to the satisfaction of the jurisdictional ChiefJudicial Magistrate. It is made clear that this order is not to beconstrued as an approval of the posts/tweets in the social media.This order is passed in view of the excessiveness of the actiontaken.”
G24. Thus, the practice of directing that the High Court beapproached first even in cases of violation of fundamental rights, is moreof a self-imposed discipline by this Court; but in glaring cases ofdeprivation of liberty, this Court has entertained petitions under Article32 of the Constitution. We may, at this stage, also notice the following H26 (2018) 9 SCC 745 : (2019) 1 SCC (Cri) 386
observations made in Union of India vs. Paul Manickam andAnother[27]:- “22. Another aspect which has been highlighted is that manyunscrupulous petitioners are approaching this Court under Article32 of the Constitution challenging the order of detention directlywithout first approaching the High Courts concerned. It isappropriate that the High Court concerned under whose jurisdictionthe order of detention has been passed by the State Governmentor Union Territory should be approached first. In order to invokethe jurisdiction under Article 32 of the Constitution to approachthis Court directly, it has to be shown by the petitioner as to whythe High Court has not been approached, could not be approachedor it is futile to approach the High Court. Unless satisfactoryreasons are indicated in this regard, filing of petition in such mattersdirectly under Article 32 of the Constitution is to be discouraged.”
25. We have therefore considered the instant case in the light ofthe principles emanating from all the aforementioned decisions.
Apart from the fact that the right claimed by the petitioner is oneunder Article 19 (1) (a) of the Constitution which was in the forefront inRomesh Thappar[20], Priya Prakash Varrier[16], Jagisha Arora[25] andAmish Devgan[10] in our view, the second prayer made by the petitionercan effectively be considered only in a writ petition. Going by the natureof the second prayer, relegating the petitioner to file a petition underArticle 226 of the Constitution, may not be appropriate. Rather, theissue must ideally be settled by this Court. Consequently, we do notaccept the preliminary objection raised by the respondents and weproceed to deal with the merits and consider the matter with respect toboth the prayers.
26. After stating that in his Talk Show uploaded on 30.03.2020,the petitioner had asserted that the Prime Minister used deaths and terrorattacks to garner votes and that the Prime Minister garnered votesthrough acts of terrorism, the F.I.R. stated, “This directly amounts toinciting violence amongst the citizens and will definitely disturb publictranquillity. This is an act of instigating violence against the Governmentand the Prime Minister.” It was also stated, “the petitioner creates panicamongst the public and disturbs public peace by trying to spread false AB
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Ainformation, such as… the Government does not have enough testingfacilities which is absolutely false.”
According to the F.I.R. “…by making such false statements,Mr.Vinod Dua spread fear amongst the people. This video will onlycreate a situation of unrest amongst the public which will result in panicBand people not obeying the lockdown to come out and hoard essentialswhich is absolutely unnecessary.…. The rumours were spread with intentto cause, or which is likely to cause, fear or alarm to the public or to anysection of the public, whereby any person may be induced to commit anoffence against the State or against the public tranquillity.”
C27. On facts, it has been established that the statements attributedto the petitioner that the Prime Minister had used deaths and terrorattacks to garner votes or that the Prime Minister had garnered votesthrough acts of terrorism, were not made in the Talk Show. The truetranslation of the original episode in Hindi, has been placed on record.No such assertions find place in the true translation nor were anyDobjections raised that the translated version was in any way incorrect.The petitioner did say that the air strikes by India on Balakot and attackson Pathankot and Pulwama were used as political events to garner votesbut no allegations were made against the Prime Minister as was statedin the F.I.R.
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It is true that some of the portions of the Talk Show do assert thatthere were not enough testing facilities; that there was no information asto the quantum of PPE kits/ suits, N95 masks, and masks of three plythat were available in the country; that the respiratory devices andsanitizers were being exported till 24[th] March (2020) instead of keepingFthem for use in the country; that the supply claims got disrupted due toblockage of roads; and that the migrant workers was a huge issue. Itwas also asserted that with supply claims being closed, some people hadfeared food riots, which had not happened in the country. Thesestatements were subject matter of considerable debate by the learnedCounsel and the principal question is whether these statements wereGmerely in the nature of critical appraisal of the performance of theGovernment or were designed to create unrest amongst the public.
28. The scope of section 124(A) of the IPC[3] was considered by aConstitution Bench of this Court in Kedar Nath Singh v. State of Bihar[2].
28.1 The conviction of Kedar Nath Singh under Sections 124Aand 505(b) of the IPC[3] was affirmed by the High Court; and the viewtaken by the High Court was paraphrased as under:
“In the course of his judgment, the learned Judge observed thatthe subject-matter of the charge against the appellant was nothingbut a vilification of the Government; that it was full of incitementsto revolution and that the speech taken as a whole was certainlyseditious. It is not a speech criticising any particular policy of theGovernment or criticising any of its measures. He held that theoffences both under Sections 124-A and 505(b) of the Indian PenalCode had been made out.”
28.2 This Court dealt with the decisions in Bangobashi case(Queen Empress v. Jogendra Chunder Bose[28]) and Queen-Empressv. Balgangaddhar Tilak[29], as under:
“The first case in India that arose under the section is what isknown as the Bangobasi case (Queen-Empress v. JogendraChunder Bose[28] which was tried by a jury before Sir ComerPetheram, C.J. While charging the jury, the learned Chief Justiceexplained the law to the jury in these terms:
“Disaffection means a feeling contrary to affection, in otherwords, dislike or hatred. Disapprobation means simplydisapproval. It is quite possible to disapprove of a man’ssentiments or action and yet to like him. The meaning of thetwo words is so distinct that I feel it hardly necessary to tellyou that the contention of Mr Jackson cannot be sustained. Ifa person uses either spoken or written words calculated tocreate in the minds of the persons to whom they are addresseda disposition not to obey the lawful authority of the Government,or to subvert or resist that authority, if and when occasion shouldarise, and if he does so with the intention of creating such adisposition in his hearers or readers, he will be guilty of theoffence of attempting to excite disaffection within the meaningof the section, though no disturbance is brought about by hiswords or any feeling of disaffection, in fact, produced by them.It is sufficient for the purposes of the section that the words 28 (1892) I.L.R. 19 Cal. 35
29 (1898) I.L.R. 22 Bom. 112.
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29 (1898) I.L.R. 22 Bom. 112.
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used are calculated to excite feelings of ill-will against theGovernment and to hold it up to the hatred and contempt of thepeople, and that they were used with the intention to createsuch feeling.”
The next case is the celebrated case of Queen-Empress v. Balgangadhar Tilak[29] which came before theBombay High Court. The case was tried by a jury before Strachey,J. The learned Judge, in the course of his charge to the jury,explained the law to them in these terms:
“The offence as defined by the first clause is exciting orattempting to excite feelings of disaffection to the Government.What are ‘feelings of disaffection’? I agree with Sir ComerPetheram in the Bangobasi case that disaffection means simplythe absence of affection. It means hatred, enmity, dislike,hostility, contempt and every form of ill-will to the Government.‘Disloyalty’ is perhaps the best general term, comprehendingevery possible form of bad feeling to the Government. That iswhat the law means by the disaffection which a man must notexcite or attempt to excite; he must not make or try to makeothers feel enmity of any kind towards the Government. Youwill observe that the amount or intensity of the disaffection isabsolutely immaterial except perhaps in dealing with thequestion of punishment: if a man excites or attempts to excitefeelings of disaffection, great or small, he is guilty under thesection. In the next place, it is absolutely immaterial whetherany feelings of disaffection have been excited or not by thepublication in question. It is true that there is before you acharge against each prisoner that he has actually excitedfeelings of disaffection to the Government. If you are satisfiedthat he has done so, you will, of course, find him guilty. But ifyou should hold that that charge is not made out, and that noone is proved to have been excited to entertain feelings ofdisaffection to the Government by reading these articles, stillthat alone would not justify you in acquitting the prisoners. Foreach of them is charged not only with exciting feelings ofdisaffection, but also with attempting to excite such feelings.You will observe that the section places on absolutely the samefooting the successful exciting of feelings of disaffection and
the unsuccessful attempt to excite them, so that, if you findthat either of the prisoners has tried to excite such feelings inothers, you must convict him even if there is nothing to showthat he succeeded. Again, it is important that you should fullyrealise another point. The offence consists in exciting orattempting to excite in others certain bad feelings towards theGovernment. It is not the exciting or attempting to excite mutinyor rebellion, or any sort of actual disturbance, great or small.Whether any disturbance or outbreak was caused by thesearticles, is absolutely immaterial. If the accused intended bythe articles to excite rebellion or disturbance, his act woulddoubtless fall within Section 124-A, and would probably fallwithin other sections of the Penal Code. But even if he neitherexcited nor intended to excite any rebellion or outbreak orforcible resistance to the authority of the Government, still ifhe tried to excite feelings of enmity to the Government, that issufficient to make him guilty under the section. I am awarethat some distinguished persons have thought that there canbe no offence against the section unless the accused eithercounsels or suggests rebellion or forcible resistance to theGovernment. In my opinion, that view is absolutely opposed tothe express words of the section itself, which as plainly aspossible makes the exciting or attempting to excite certainfeelings, and not the inducing or attempting to induce to anycourse of action such as rebellion or forcible resistance, thetest of guilt. I can only account for such a view by attributing itto a complete misreading of the explanation attached to thesection, and to a misapplication of the explanation beyond itstrue scope.”
28.3 This Court then considered the further proceedings taken upafter Balgangadhar Tilak was found guilty: - “……The Jury, by a majority of six to three, found ShriBalgangadhar Tilak guilty. Subsequently, he, on conviction, appliedunder clause 41 of the Letters Patent for leave to appeal to thePrivy Council. The application was heard by a Full Bench consistingof Farran, C.J., Candy and Strachey, JJ. It was contended beforethe High Court at the leave stage, inter alia, that the sanctiongiven by the Government was not sufficient in law in that it had AB
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not set out the particulars of the offending articles, and, secondly,that the Judge misdirected the jury as to the meaning of the word“disaffection” insofar as he said that it might be equivalent to“absence of affection”. With regard to the second point, which isthe only relevant point before us, the Full Bench expressed itselfto the following effect:
“The other ground upon which Mr Russell has asked us tocertify that this is a fit case to be sent to Her Majesty inCouncil, is that there has been a misdirection, and he based hisargument on one major and two minor grounds. The majorground was that the section cannot be said to have beencontravened unless there is a direct incitement to stir up disorderor rebellion. That appears to us to be going much beyond thewords of the section, and we need not say more upon thatground. The first of the minor points is that Mr Justice Stracheyin summing up the case to the jury stated that disaffectionmeant the ‘absence of affection’. But although if that phrasehad stood alone it might have misled the jury, yet taken inconnection with the context we think it is impossible that thejury could have been misled by it. That expression was used inconnection with the law as laid down by Sir Comer Petheramin Calcutta in the Bangaboshi case. There the Chief Justiceinstead of using the words absence of affection used the words‘contrary to affection’. If the words ‘contrary to affection’had been used instead of ‘absence of affection’ in this casethere can be no doubt that the summing up would have beenabsolutely correct in this particular. But taken in connection
with the context it is clear that by the words ‘absence ofaffection’ the learned Judge did not mean the negation ofaffection, but some active sentiment on the other side. Thereforeon that point we consider that we cannot certify that this is afit case for appeal.
In this connection it must be remembered that it is not allegedthat there has been a miscarriage of justice.”
After making those observations, the Full Bench refused theapplication for leave. The case was then taken to Her Majesty inCouncil, by way of application for special leave to appeal to theJudicial Committee. Before Their Lordships of the Privy Council,
Asquith, Q.C., assisted by counsel of great experience andeminence like Mayne, W.C. Bannerjee and others, contended thatthere was a misdirection as to the meaning of Section 124-A ofthe Penal Code in that the offence had been defined in terms toowide to the effect that “disaffection” meant simply “absence ofaffection”, and that it comprehended every possible form of badfeeling to the Government. In this connection reference was madeto the observations of Petheram, C.J. in Queen-Empress v. Jogendra Chander Bose[28]. It was also contendedthat the appellant’s comments had not exceeded what in Englandwould be considered within the functions of a public journalist,and that the misdirection complained of was of the greatestimportance not merely to the affected person but to the whole ofthe Indian press and also to all Her Majesty’s subjects; and that itinjuriously affected the liberty of the press and the right to freespeech in public meetings. But in spite of the strong appeal madeon behalf of the petitioner for special leave, the Lord Chancellor,delivering the opinion of the Judicial Committee, while dismissingthe application, observed that taking a view of the whole of thesumming up they did not see any reason to dissent from it, andthat keeping in view the Rules which Their Lordships observed inthe matter of granting leave to appeal in criminal cases, they didnot think that the case raised questions which deserve furtherconsideration by the Privy Council, (vide GangadharTilak v. Queen-Empress.[30]"
28.4 Thereafter, the decision of the Federal Court in NiharenduDutt Majumdar v. The King Emperor[31]was dealt with and it wasnoticed that the statement of law made by the Federal Court was notaccepted by the Privy Council. The discussion was: - “While dealing with a case arising under Rule 34(6)(e) of theDefence of India Rules under the Defence of India Act (35 of1939), Sir Maurice Gwyer, C.J., speaking for the Federal Court,made the following observations in the case of Niharendu DuttMajumdar v. King-Emperor[31] and has pointed out that thelanguage of Section 124-A of the Indian Penal Code, which wasin pari materia with that of the Rule in question, had been adopted 30 (1897) L.R. 25 I.A. 1.
31 (1942) F.C.R. 38
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from the English Law, and referred with approval to theobservations of Fitzerald, J., in the case quoted above; and madethe following observations which are quite apposite; “… generally speaking, we think that the passage accuratelystates the law as it is to be gathered from an examination of agreat number of judicial pronouncements.
The first and most fundamental duty of every Governmentis the preservation of order, since order is the conditionprecedent to all civilisation and the advance of human happiness.This duty has no doubt been sometimes performed in such away as to make the remedy worse than the disease; but itdoes not cease to be a matter of obligation because some onwhom the duty rests have performed it ill. It is to this aspect ofthe functions of Government that in our opinion the offence ofsedition stands related.It is the answer of the State to thosewho, for the purpose of attacking or subverting it, seek (toborrow from the passage cited above) to disturb its tranquillity,to create public disturbance and to promote disorder, or whoincite others to do so. Words, deeds or writings constitutesedition, if they have this intention or this tendency; and it iseasy to see why they may also constitute sedition, if they seek,as the phrase is, to bring Government into contempt. This isnot made an offence in order to minister to the wounded vanityof Government, but because where Government and the lawcease to be obeyed because no respect is felt any longer forthem, only anarchy can follow. Public disorder, or thereasonable anticipation or likelihood of public disorder, is thusthe gist of the offence. The acts or words complained of musteither incite to disorder or must be such as to satisfy reasonablemen that that is their intention or tendency.”
This statement of the law was not approved by Their Lordshipsof the Judicial Committee of the Privy Council in the case of King-Emperor v. Sadashiv Narayan Bhalerao[32]. The Privy Council,after quoting the observations of the learned Chief Justicein Niharendu case[31] while disapproving of the decision of theFederal Court, observed that there was no statutory definition of
“sedition” in England, and the meaning and content of the crimehad to be gathered from many decisions.”
(Emphasis supplied)
28.5 The conflict in the decision of the Federal Court and that ofthe Privy Council was thereafter noticed by this Court as follows:
“Thus, there is a direct conflict between the decision of the FederalCourt in Niharendu case[31] and of the Privy Council in a numberof cases from India and the Gold Coast, referred to above. It isalso clear that either view can be taken and can be supported ongood reasons. The Federal Court decision takes into consideration,as indicated above, the pre-existing Common Law of England inrespect of sedition. It does not appear from the report of the FederalCourt decision that the rulings aforesaid of the Privy Council hadbeen brought to the notice of Their Lordships of the Federal Court.”
28.6 The scope of section 124A of the IPC[3] was considered thus: - “The section was amended by the Indian Penal Code AmendmentAct (IV of 1898). As a result of the amendment, the singleexplanation to the section was replaced by three separateexplanations as they stand now. The section, as it now stands inits present form, is the result of the several A.O.s of 1937, 1948and 1950, as a result of the constitutional changes, by theGovernment of India Act, 1935, by the Independent Act of 1947and by the Indian Constitution of 1950. Section 124A, as it hasemerged after successive amendments by way of adaptations asaforesaid, reads as follows:
“Whoever by words, either spoken or written, or by signsor by visible representation, or otherwise, brings or attempts tobring into hatred or contempt, or excites or attempts to excitedisaffection towards the Government established by law inIndia shall be punished with transportation for life or any shorterterm to which fine may be added or with imprisonment whichmay extend to three years, to which fine may be added, orwith fine.
Explanation 1. The expression “disaffection” includesdisloyalty and all feelings of enmity.
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Explanation 2. Comments expressing disapprobation of themeasures of the Government with a view to obtain theiralteration by lawful means, without exciting or attempting toexcite hatred, contempt or disaffection do not constitute anoffence under this section.
Explanation 3, Comments expressing disapprobation of theadministrative or other action of the Government withoutexciting or attempting to excite hatred, contempt or disaffection,do not constitute an offence under this section.”
This offence, which is generally known as the offence of Sedition,occurs in Chapter VI of the Indian Penal Code, headed ‘Ofoffences against the State’. This species of offence against theState was not an invention of the British Government in India, buthas been known in England for centuries. Every State, whateverits form of Government, has to be armed with the power to punishthose who, by their conduct, jeopardise the safety and stability ofthe State, or disseminate such feeling of disloyalty as have thetendency to lead to the disruption of the State or to public disorder.In England, the crime has thus been described by Stephen in hisCommentaries on the Laws of England, 21[st] Edition, volume IV,at pages 141-142, in these words:
“Section IX. Sedition and Inciting to Disaffection – Weare now concerned with conduct which, on the one hand, fallshort of treason, and on the other does not involve the use offorce or violence. The law has here to reconcile the right ofprivate criticism with the necessity of securing the safety andstability of the State. Sedition may be defined as conduct whichhas, either as its object or as its natural consequence, theunlawful display of dissatisfaction with the Government or withthe existing order of society.
The seditious conduct may be by words, by deed, or bywriting. Five specific heads of sedition may be enumeratedaccording to the object of the accused. This may be either.
1. to excite disaffection against the King, Government, orConstitution, or against Parliament or the administration ofjustice;
2. to promote by unlawful means, any alteration in Church orState;
3. to incite a disturbance of the peace ;
4. to raise discontent among the King’s subjects ;
5. to excite class hatred.
It must be observed that criticism on political matters is not ofitself sedition. The test is the manner in which it is made.Candid and honest discussion is permitted. The law onlyinterferes when the discussion passes the bounds of faircriticism. More especially will this be the case when the naturalconsequence of the prisoner’s conduct is to promote publicdisorder.”
This statement of the law is derived mainly from the address tothe Jury by Fitzerald, J., in the case of Reg v. Alexander MartinSullivan[33]. In the course of his address to the Jury, the learnedJudge observed as follows:
“Sedition is a crime against society, nearly allied to that oftreason and it frequently precedes treason by a short interval.Sedition in itself is a comprehensive term, and it embraces allthose practices, whether by word, deed or writing, which arecalculated to disturb the tranquillity of the State, and leadignorant persons to endeavour to subvert the Government andthe laws of the empire. The objects of sedition generally are toinduce discontent and insurrection, and stir up opposition to theGovernment, and bring the administration of justice intocontempt; and the very tendency of sedition is to incite thepeople to insurrection and rebellion. Sedition has been describedas disloyalty in action, and the law considers as sedition allthose practices which have for their object to excite discontentor dissatisfaction, to create public disturbance, or to lead tocivil war; to bring into hatred or contempt the Sovereign or theGovernment, the laws or constitution of the realm, and generallyall endeavours to promote public disorder.”
That the law has not changed during the course of the centuriesis also apparent from the following statement of the law by A
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AColeridge, J., in the course of his summing up to the Jury in thecase of Rex v. Aldred[34]:
“Nothing is clearer than the law on this head — namely, thatwhoever by language, either written or spoken, incites orencourages others to use physical force or violence in someBpublic matter connected with the State, is guilty of publishing aseditious libel. The word ‘sedition’ in its ordinary naturalsignification denotes a tumult, an insurrection, a popularcommotion, or an uproar; it implies violence or lawlessness insome form….”
CIn that case, the learned Judge was charging the Jury in respectof the indictment which contained the charge of seditious libel bya publication by the defendant.”
28.6.1 Finally, while considering the applicability of Section 124Aof the IPC[3], especially in the context of the Right guaranteed underDArticle 19(1)(a) of the Constitution, this Court concluded: - “It has not been questioned before us that the fundamentalright guaranteed by Article 19(1)(a) of the freedom of speechand expression is not an absolute right. It is common ground thatthe right is subject to such reasonable restrictions as would comeEwithin the purview of clause (2), which comprises (a) security ofthe State, (b) friendly relations with foreign States, (c) public order,(d) decency or morality, etc. etc. With reference to theconstitutionality of Section 124-A or Section 505 of the IndianPenal Code, as to how far they are consistent with therequirements of clause (2) of Article 19 with particular referenceFto security of the State and public order, the section, it must benoted, penalises any spoken or written words or signs or visiblerepresentations, etc. which have the effect of bringing, or whichattempt to bring into hatred or contempt or excites or attempts toexcite disaffection towards the Government established by law.GNow, the expression “the Government established by law” has tobe distinguished from the persons for the time being engaged incarrying on the administration. “Government established by law”is the visible symbol of the State. The very existence of the Statewill be in jeopardy if the Government established by law is
subverted.Hence, the continued existence of the Governmentestablished by law is an essential condition of the stability of theState. That is why “sedition”, as the offence in Section 124-A hasbeen characterised, comes, under Chapter VI relating to offencesagainst the State. Hence, any acts within the meaning of Section124-A which have the effect of subverting the Government bybringing that Government into contempt or hatred, or creatingdisaffection against it, would be within the penal statute becausethe feeling of disloyalty to the Government established by law orenmity to it imports the idea of tendency to public disorder by theuse of actual violence or incitement to violence.In other words,any written or spoken words, etc. which have implicit in them theidea of subverting Government by violent means, which arecompendiously included in the term “revolution”, have been madepenal by the section in question. But the section has taken care toindicate clearly that strong words used to express disapprobationof the measures of Government with a view to their improvementor alteration by lawful means would not come within the section.Similarly, comments, however strongly worded, expressingdisapprobation of actions of the Government, without exciting thosefeelings which generate the inclination to cause public disorder byacts of violence, would not be penal.In other words, disloyalty toGovernment established by law is not the same thing ascommenting in strong terms upon the measures or acts ofGovernment, or its agencies, so as to ameliorate the condition ofthe people or to secure the cancellation or alteration of those actsor measures by lawful means, that is to say, without exciting thosefeelings of enmity and disloyalty which imply excitement to publicdisorder or the use of violence.
It has not been contended before us that if a speech or awriting excites people to violence or have the tendency to createpublic disorder, it would not come within the definition of “sedition”.What has been contended is that a person who makes a verystrong speech or uses very vigorous words in a writing directed toa very strong criticism of measures of Government or acts ofpublic officials, might also come within the ambit of the penalsection. But in our opinion, such words written or spoken wouldbe outside the scope of the section. In this connection, it is pertinentto observe that the security of the State, which depends upon the AB
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maintenance of law and order is the very basic consideration uponwhich legislation, with a view to punishing offences against theState, is undertaken. Such a legislation has, on the one hand, fullyto protect and guarantee the freedom of speech and expression,which is the sine qua non of a democratic form of Governmentthat our Constitution has established. This Court, as the custodianand guarantor of the fundamental rights of the citizens, has theduty cast upon it of striking down any law which unduly restrictsthe freedom of speech and expression with which we areconcerned in this case. But the freedom has to be guarded againstbecoming a licence for vilification and condemnation of theGovernment established by law, in words which incite violence orhave the tendency to create public disorder. A citizen has a rightto say or write whatever he likes about the Government, or itsmeasures, by way of criticism or comment, so long as he does notincite people to violence against the Government established bylaw or with the intention of creating public disorder. The Courthas, therefore, the duty cast upon it of drawing a clear line ofdemarcation between the ambit of a citizen’s fundamental rightguaranteed under Article 19(1)(a) of the Constitution and the powerof the legislature to impose reasonable restrictions on thatguaranteed right in the interest of, inter alia, security of the Stateand public order. We have, therefore, to determine how far theSections 124-A and 505 of the Indian Penal Code could be said tobe within the justifiable limits of legislation. If it is held, inconsonance with the views expressed by the Federal Court in thecase of Niharendu Dutt Majumdar v. King-Emperor[31] that thegist of the offence of “sedition” is incitement to violence or thetendency or the intention to create public disorder by words spokenor written, which have the tendency or the effect of bringing theGovernment established by law into hatred or contempt or creatingdisaffection in the sense of disloyalty to the State, in other wordsbringing the law into line with the law of sedition in England, aswas the intention of the legislators when they introduced Section124-A into the Indian Penal Code in 1870 as aforesaid, the lawwill be within the permissible limits laid down in clause (2) ofArticle 19 of the Constitution. If on the other hand we give aliteral meaning to the words of the section, divorced from all theantecedent background in which the law of sedition has grown, as laid down in the several decisions of the Judicial Committee ofthe Privy Council, it will be true to say that the section is not onlywithin but also very much beyond the limits laid down in clause(2) aforesaid.
In view of the conflicting decisions of the Federal Courtand of the Privy Council, referred to above, we have to determinewhether and how far the provisions of Sections 124-A and 505 ofthe Indian Penal Code have to be struck down as unconstitutional.If we accept the interpretation of the Federal Court as to the gistof criminality in an alleged crime of sedition, namely, incitement todisorder or tendency or likelihood of public disorder or reasonableapprehension thereof, the section may lie within the ambit ofpermissible legislative restrictions on the fundamental right offreedom of speech and expression. There can be no doubt thatapart from the provisions of clause (2) of Article 19, Sections124-A and 505 are clearly violative of Article 19(1)(a) of theConstitution. But then we have to see how far the saving clause,namely, clause (2) of Article 19 protects the sections aforesaid.Now, as already pointed out, in terms of the amended clause (2),quoted above, the expression “in the interest of … public order”are words of great amplitude and are much more comprehensivethen the expression “for the maintenance of”, as observed by thisCourt in the case of Virendra v. State of Punjab[35]. Any law whichis enacted in the interest of public order may be saved from thevice of constitutional invalidity. If, on the other hand, we were tohold that even without any tendency to disorder or intention tocreate disturbance of law and order, by the use of words writtenor spoken which merely create disaffection or feelings of enmityagainst the Government, the offence of sedition is complete, thensuch an interpretation of the sections would make themunconstitutional in view of Article 19(1)(a) read with clause (2).It is well settled that if certain provisions of law construed in oneway would make them consistent with the Constitution, and anotherinterpretation would render them unconstitutional, the Court wouldlean in favour of the former construction. The provisions of thesections read as a whole, along with the explanations, make itreasonably clear that the sections aim at rendering penal only A
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Asuch activities as would be intended, or have a tendency, to createdisorder or disturbance of public peace by resort to violence.Asalready pointed out, the explanations appended to the main bodyof the section make it clear that criticism of public measures orcomment on Government action, however strongly worded, wouldbe within reasonable limits and would be consistent with theBfundamental right of freedom of speech and expression. It is onlywhen the words, written or spoken, etc. which have the pernicioustendency or intention of creating public disorder or disturbance oflaw and order that the law steps in to prevent such activities in theinterest of public order.So construed, the section, in our opinion,Cstrikes the correct balance between individual fundamental rightsand the interest of public order. It is also well settled that ininterpreting an enactment the Court should have regard not merelyto the literal meaning of the words used, but also take intoconsideration the antecedent history of the legislation, its purposeand the mischief it seeks to suppress [vide (1) Bengal ImmunityDCompany Limited v. State of Bihar[36] and (2) R.M.D.Chamarbaugwala v. Union of India[37].] Viewed in that light, wehave no hesitation in so construing the provisions of the sectionsimpugned in these cases as to limit their application to acts involvingintention or tendency to create disorder, or disturbance of law andEorder, or incitement to violence.
We may also consider the legal position, as it shouldemerge, assuming that the main Section 124-A is capable of beingconstrued in the literal sense in which the Judicial Committee ofthe Privy Council has construed it in the cases referred to above.
On that assumption, is it not open to this Court to construe thesection in such a way as to avoid the alleged unconstitutionalityby limiting the application of the section in the way in which theFederal Court intended to apply it? In our opinion, there aredecisions of this Court which amply justify our taking that view of F
the legal position. This Court, in the case of R.M.D.GChamarbaugwalla v. Union of India[37] has examined in detailthe several decisions of this Court, as also of the courts in Americaand Australia. After examining those decisions, this Court cameto the conclusion that if the impugned provisions of a law come 36 (1955) 2 SCR 603H37 (1957) SCR 930
within the constitutional powers of the legislature by adopting oneview of the words of the impugned section or Act, the Court willtake that view of the matter and limit its application accordingly,in preference to the view which would make it unconstitutional onanother view of the interpretation of the words in question. In thatcase, the Court had to choose between a definition of theexpression “Prize Competitions” as limited to those competitionswhich were of a gambling character and those which were not.The Court chose the former interpretation which made the rest ofthe provisions of the Act, Prize Competitions Act (42 of 1955),with particular reference to Sections 4 and 5 of the Act and Rules11 and 12 framed thereunder, valid. The Court held that the penaltyattached only to those competitions which involved the elementof gambling and those competitions in which success depended toa substantial degree on skill were held to be out of the purview ofthe Act. The ratio decidendi in that case, in our opinion, appliedto the case in hand insofar as we propose to limit its operationonly to such activities as come within the ambit of the observationsof the Federal Court, that is to say, activities involving incitementto violence or intention or tendency to create public disorder orcause disturbance of public peace.”
(Emphasis supplied)
28.7 It may be noted here that the appeal of Kedar Nath Singh[2]was dismissed by this Court, affirming the view taken by the Courtsbelow that the speech, taken as a whole, was seditious.
28.8 This Court, thus, did not follow the decisions of the PrivyCouncil in Balgangadhar Tilak vs. Queen Empress[30] and in KingEmperor vs. Sadashiv Narayan Bhalerao[32] but held that the operationof Section 124A of the IPC[3] must be limited only to such activities ascome within the ambit of the observations of the Federal Court.
29. It may, therefore, be necessary to deal with the aforesaiddecisions of the Privy Council and that of the Federal Court in somedetail.
30. Accused, Sadashiv Narayan Bhalerao had distributed certainpamphlets on 26.01.1943 in respect of which he was tried for havingcommitted offence punishable under Rule 38(5) read with Rule 34 of A
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Athe Defence of India Rules. The relevant statutory provisions as quotedin the decision of the Privy Council were :- “The Defence of India Rules, which were made by the CentralGovernment under S. 2 of the Defence of India Act, 1939 (XXXVof 1939) - so far as material - provided as follows :
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34. (7) ‘prejudicial report’ means any report, statement or visiblerepresentation, whether true or false, which, or the publishingof which, is, or is an incitement to the commission of, aEprejudicial act as defined in this rule;
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(5) If any person contravenes any of the provisions of thisrule, he shall be punishable with imprisonment for a term whichmay extend to five years or with fine or with both.”
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30.1 The trial Magistrate had acquitted the accused. The appealby the Crown having been dismissed, the matter was taken up before H
the Privy Council. Some of the relevant passages from the decision ofthe Privy Council were: - “Their Lordships are unable to accept the test laid down by thelearned Chief Justice, as applicable in India.
Their Lordships agree, for the purposes of the present appeal,that there is no material distinction between r. 34, sub-r.6, sub-para. (e), and S. 124A, Penal Code, though it might be suggestedthat the words “an act which is intended or likely to bring” in theRule are wider than the words “brings or attempts to bring” in theCode. They further agree with the learned Chief Justice that theomission in the rule of the three explanations in the Code shouldnot lead to any difference in construction.
The word “sedition” does not occur either in S. 124A or in theRule; it is only found as a marginal note to S. 124A, and is not anoperative part of the section, but merely provides the name bywhich the crime defined in the section will be known. There canbe no justification for restricting the contents of the section by themarginal note. In England there is no statutory definition of sedition;its meaning and content have been laid down in many decisions,some of which are referred to by the Chief Justice, but thesedecisions are not relevant when you have a statutory definition ofthat which is termed sedition, as we have in the present case.
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In Wallace-Joshnson v. The King[38] under sub-s.8 of S.326 ofthe Criminal Code of the Gold Coast, “seditious intention” wasdefined as an intention “to bring into hatred or contempt or toexcite disaffection against. . . . . the Government of the GoldCoast as by law established.” It was held by this Board that thewords were clear and unambiguous, and that incitement to violencewas not a necessary ingredient of the crime of sedition as therebydefined.
In conclusion, their Lordships will only add that theamendments of S.124A in 1898, the year after Tilak’s case (3), bythe inclusion of hatred or contempt and the addition of the second A
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and third explanations, did not affect or alter the construction ofthe section laid down in Tilak’s case (3), and, in their opinion, ifthe Federal Court, in Niharendu’s case (5) had given their attentionto Tilak’s case (3), they should have recognized it as an authorityon the construction of S.124A by which they were bound.
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31. We may also note the submission[39] made on behalf ofBalgangadhar Tilak before the Privy Council which was paraphrasedin the report as under: - D“Asquith, Q.C. (Mayne, G. H. Blair, and W.C. Bonnerjee withhim), for the petitioner, contended that this was a case in whichan appeal should be admitted. The misdirection as to the meaningof Art.124A of the Penal Code raised a question of great andgeneral importance within the meaning of Reg v. Bertrand. (1)The Judge’s direction was objected to in that it defined the offenceEcreated by S.124A in terms too wide, to the effect that disaffectionmeant simply absence of affection, that it meant a feeling (nottranslated into overt act) of hatred, enmity, dislike, hostility,contempt, and any form of ill-will to the Government; that disloyaltywas perhaps the best term, and that it comprehended every possibleFform of bad feeling to the Government; that a man must not makeor try to make others feel enmity of any kind against theGovernment; that if a man expresses condemnation of themeasures legislative or executive of the Government he was withinhis right, but that if he went further and held up the Governmentitself to the hatred and contempt of his readers by the imputationGof motives or by denouncing its foreign origin or character, thatthen he was guilty under the Section. Reference was made to thedefinition of the word “disaffection” by Petheram C.J. in QueenEmpress v. Jogendra Chunder Bose and Others[23].
It was contended that Tilak’s comments had not exceeded whatin England would be considered within the functions of a publicjournalist. It was further contended that the misdirection complainedof was of the greatest importance, not merely to the petitioner,but to the whole of the Indian press, and also to all the Indiansubjects of the Crown. It affected injuriously the liberty of thepress, the right to free speech and public meeting, and the right topetition for redress of grievances.”
31.1 In this respect, the address[40] made by Balgangadhar Tilakto the Jury, during the course of his trial, may also be noted. Some of thepassages from the address were :- “To excite feelings of disaffection means that by your act youmust heighten feelings of disaffection when they exist or createthem when they do not. If you do not do anything to excite feelings,if you merely express, if you merely report, if you only expresssentiments which exist at the time, surely your act does not comeunder Section 124A. Nay, more, you may create a feeling ofdisapprobation. I can say with impunity something is bad; it oughtto be remedied. I have to write; I have a right to do that and if Ifind fault it is only natural that some ill-feeling is created. . . . So inthis approbation some ill feeling is necessarily implied. That is themeaning of Explanation 2 to the Section; it refers to “Commentsexpressing disapprobation of the measures of the Government.”When I say that Government is going wrong, evidently, I saysomething which the authorities may not like. That is not sedition;if that were so, there could be no progress at all and we shall haveto be content at the end of the 20[th] century with what we have atpresent. True progress comes of agitation; and you are bound toconsider the defects pointed out and discussed and the reformsproposed and to look to the real intention of the man. …..
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Then there is another expression to which I wish to draw yourattention; and it is “Government established by law in BritishIndia”. ‘Government’ here does not mean the Executive or theJudiciary but it means Government in the abstract. The word 40 “Trial of Tilak”: 2nd Edition., published by Publications Division, Ministry ofInformation and Broadcasting, Government of India.
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‘Government’ is defined in the Indian Penal Code and includesany officer, even a polite constable. It does not mean that if I saya police man is not doing his duty then I am guilty of sedition. Goup higher. If certain officials have not been doing their duty, Ihave every right to say that these officials should be discharged;there should be stricter supervision and that particular departmentsshould be altered. So long as the word “Government” is qualifiedby the words “established by Law,” how can it have the meaninggiven to it by a definition of the word (“Government”) in a particularpart in the Penal Code? The qualifying phrase makes it a quitedifferent thing. It is “Government established by law.” We shallhave to come afterwards to the question whether Bureaucracy isGovernment or not? Whether the British Government is solelydependent upon the Bureaucracy? Can it not exist without it?The Bureaucracy may say so, it may be very flattering to them tosay that the services of certain officers are indispensable to thembut is it the meaning conveyed by the expression “Governmentestablished by law in British India”? Does it mean a “form ofadministration” and is it consistent with that meaning? So far asideals are concerned they do not come under the Penal Code. Imay say that a certain system of administration is better suited tothe country and may try to spread that opinion. You may not agreewith me but that is not the point. I have to express my opinion andso long as I do not create any disaffection I am allowed to expressit freely. There can otherwise be no progress; progress would beimpossible unless you allow intelligent gentlemen the right toexpress their opinion, to influence the public and get the majorityof the public on their side. …
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The question is, do you really intend as guardians of the liberty ofthe Press to allow as much liberty here in India as is enjoyed bythe people of England? That is the point that you will have to verycarefully consider. I wish to show you that mine is an Articlewritten in controversy as a reply to an opponent. It was penned todefend the interests of my community. You may not agree withme in my views. Different communities have different views.And every community must have opportunity to express its ownviews. I have not come here to ask you any grace. I am preparedto stand by the consequences of my act. There is no question about it. I am not going to tell you that I wrote the article in a fit ofmadness. I am not a lunatic. I have written it believing it my dutyto write in the interest of the public in this way, believing that thatwas the view of the community. I wanted to express it, believingthat the interests of the community would not be otherwisesafeguarded. Believe me when I say that it was both in the interestof the people and Government and this view should be placedbefore them. If you honestly go to the question like that it will beyour duty to give a verdict to not guilty, whatever may be youropinion about me, even if you dislike me as much as you can. …..
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In a homogeneous country like England, there are parties likeConservatives, Liberals, Radicals and Nationalists; each man takeshis own view of public events. Take, for instance, the Boer war;there were people who disapproved of it, though they were avery small minority. The majority of the nation determined upongoing to war and the war did take place. Those who representedthe view of the minority used arguments in favour of the Boers,they were called the pro-Boer party, the others used argumentsagainst the Boers. So there was public opinion discussed on bothsides and from both points of view. That is the beauty of a freepress, which allows discussion in this way to the people of thecountry upon a particular subject. …..”
32. Having considered the decisions of the Privy Council inBalgangadhar Tilak[30] and in King-Emperor v. Sadashiv NarayanBhalero[32]we must now deal with the decision of the Federal Court inNiharendu Dutt Majumdar v. The King Emperor[31]. A passage fromthe decision of the Federal Court was quoted in Kedar Nath Singh v.State of Bihar[2] but immediately preceding passage from said decisionof the Federal Court is also noteworthy and was to the following effect:
“The time is long past when the mere criticism of Governmentswas sufficient to constitute sedition, for it is recognized that theright to utter honest and reasonable criticism is a source of strengthto a community rather than a weakness. Criticism of an existingsystem of Government is not excluded, nor even the expressionof a desire for a different system altogether. The language of S.
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124-A of the Penal Code, if read literally, even with the explanationsattached to it, would suffice to make a surprising number of personsin this country guilty of sedition; but no one supposes that it is tobe read in this literal sense. The language itself has been adoptedfrom English law, but it is to be remembered that in England thegood sense of jurymen can always correct extravagantinterpretations sought to be given by the executive Governmentor even by Judges themselves, and if in this country that check isabsent, or practically absent, it becomes all the more necessaryfor the Courts, when a case of this kind comes before them, toput themselves so far as possible in the place of a jury, and to takea broad view, without refining overmuch in applying the generalprinciples which underlie the law of sedition to the particularfacts and circumstances brought to their notice.
What then are these general principles? We are content to adoptthe words of a learned Judge, which are to be found in everybook dealing with this branch of the criminal law: Page:“Sedition……embraces all those practices, whether by word, deedor writing, which are calculated to disturb the tranquillity of theState and lead ignorant persons to subvert the Government.Theobjects of sedition generally are to induce discontent andinsurrection, to stir up opposition to the Government, and to bringthe administration of justice into contempt; and the very tendencyof sedition is to incite the people to insurrection and rebellion.Sedition has been described as disloyalty in action, and the lawconsiders as sedition all those practices which have for their objectto excite discontent or disaffection, to create public disturbance,or to lead to civil war; to bring into hatred or contempt the Sovereignor Government, the laws or the constitution of the realm andgenerally all endeavours to promote public disorder.” Fitzgerald,J., in R. v. Sullivan[33]. It is possible to criticise one or two words orphrases in this passage; “loyalty” and “dis-loyalty,” for example,have a non-legal connotation also, and it is very desirable thatthere should be no confusion between this and the sense in whichthe words are used in a legal context; but, generally speaking, wethink that the passage accurately states the law as it is to begathered from an examination of a great number of judicialpronouncements.”
(Emphasis supplied)
(Emphasis supplied)
33. These passages elucidate what was accepted by this Court inpreference to the decisions of the Privy Council in Balgangadhar Tilak[30]and in King-Emperor v. Sadashiv Narayan Bhalerao[32]. Thestatements of law deducible from the decision in Kedar Nath Singh[2]are as follows: -
a) “the expression “the Government established by law” has to bedistinguished from the persons for the time being engaged incarrying on the administration. “Government established bylaw” is the visible symbol of the State. The very existence ofthe State will be in jeopardy if the Government established bylaw is subverted.”
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b) “any acts within the meaning of Section 124-A which have theeffect of subverting the Government by bringing thatGovernment into contempt or hatred, or creating disaffectionagainst it, would be within the penal statute because the feelingof disloyalty to the Government established by law or enmityto it imports the idea of tendency to public disorder by the useof actual violence or incitement to violence.”
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c) “comments, however strongly worded, expressing disapprobationof actions of the Government, without exciting those feelingswhich generate the inclination to cause public disorder by actsof violence, would not be penal.”
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d) “A citizen has a right to say or write whatever he likes about theGovernment, or its measures, by way of criticism or comment,so long as he does not incite people to violence against theGovernment established by law or with the intention of creatingpublic disorder.”
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e) “The provisions of the Sections[41] read as a whole, along withthe explanations, make it reasonably clear that the sectionsaim at rendering penal only such activities as would be intended, 41 The reference was to Sections 124A and 505 of the IPC.
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Aor have a tendency, to create disorder or disturbance of publicpeace by resort to violence.”
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f) “It is only when the words, written or spoken, etc. which havethe pernicious tendency or intention of creating public disorderBor disturbance of law and order that the law steps in to preventsuch activities in the interest of public order.”
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g) “we propose to limit its operation only to such activities as comeCwithin the ambit of the observations of the Federal Court, thatis to say, activities involving incitement to violence or intentionor tendency to create public disorder or cause disturbance ofpublic peace.”
As the statement of law at placetum (e) above indicates, it appliesDto cases under Sections 124-A and 505 of the IPC[3]. According to thisCourt only such activities which would be intended or have a tendencyto create disorder or disturbance of public peace by resort to violence –are rendered penal.
34. Some of the decisions cited by the learned Counsel, touchingupon the content and the extent of the right of the Press, may also beEadverted to at this stage.
A) In the case of Indian Express Newspapers (Bombay)Private Ltd. & Ors. vs. Union of India & Ors.[42], this Court observed:
“25. The freedom of press, as one of the members of theFConstituent Assembly said, is one of the items around which thegreatest and the bitterest of constitutional struggles have beenwaged in all countries where liberal constitutions prevail. The saidfreedom is attained at considerable sacrifice and suffering andultimately it has come to be incorporated in the various writtenconstitutions. James Madison when he offered the Bill of RightsGto the Congress in 1789 is reported as having said: “The right offreedom of speech is secured, the liberty of the press is expresslydeclared to be beyond the reach of this Government.” [See1 Annals of Congress (1789-96) p. 141]. Even where there are
no written constitutions, there are well established constitutionalconventions or judicial pronouncements securing the said freedomfor the people. The basic documents of the United Nations and ofsome other international bodies to which reference will be madehereafter give prominence to the said right. The leaders of theIndian independence movement attached special significance tothe freedom of speech and expression which included freedom ofpress apart from other freedoms During their struggle for freedomthey were moved by the American Bill of Rights containing theFirst Amendment to the Constitution of the United States ofAmerica which guaranteed the freedom of the press PanditJawaharlal Nehru in his historic resolution containing the aimsand objects of the Constitution to be enacted by the ConstituentAssembly said that the Constitution should guarantee and secureto all the people of India among others freedom of thought andexpression. He also stated elsewhere that “I would rather have acompletely free press with all the dangers involved in the wronguse of that freedom than a suppressed or regulated press” [SeeD.R. Mankekar: The Press under Pressure (1973) p. 25]. TheConstituent Assembly and its various committees and sub-committees considered freedom of speech and expression whichincluded freedom of press. also as a precious right. The Preambleto the Constitution says that it is intended to secure to all citizensamong others liberty of thought, expression, and belief. It issignificant that in the kinds of restrictions that may be imposed onthe freedom of speech and expression, any reasonable restrictionimposeable in the public interest is not one enumerated in clause(2) of Article 19. In Romesh Thappar v. State ofMadras[20] and Brij Bhushan case[43] this Court firmly expressedits view that there could not be any kind of restrictions on thefreedom of speech and expression other than those mentioned inArticle 19(2) and thereby made it clear that there could not beany interference with that freedom in the name of public interest.”
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32. In today’s free world freedom of press is the heart of socialand political intercourse. The press has now assumed the role ofthe public educator making formal and non-formal education 43 AIR 1950 SC 129 : 1950 SCR 605
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possible in a large scale particularly in the developing world, wheretelevision and other kinds of modern communication are not stillavailable for all sections of society. The purpose of the press is toadvance the public interest by publishing facts and opinions withoutwhich a democratic electorate cannot make responsible judgments.Newspapers being purveyors of news and views having a bearingon public administration very often carry material which wouldnot be palatable to Governments and other authorities. The authorsof the articles which are published in newspapers have to be criticalof the actions of Government in order to expose its weaknesses.Such articles tend to become an irritant or even a threat to power.
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33. Thomas I. Emerson in his article entitled “Toward, a GeneralTheory of the First Amendment” [(1963) 72 Yale Law Journal877 at p. 906] while dealing with the role of the judicial institutionsin a democratic society and in particular of the Apex Court ofU.S.A. in upholding the freedom of speech and expression writes:
“The objection that our judicial institutions lack the politicalpower and prestige to perform an active role in protectingfreedom of expression against the will of the majority raisesmore difficult questions. Certainly judicial institutions mustreflect the traditions, ideals and assumptions, and in the endmust respond to the needs, claims and expectations, of thesocial order in which they operate. They must not, and ultimatelycannot, move too far ahead or lag too far behind. The problemfor the Supreme Court is one of finding the proper degree ofresponsiveness and leadership, or perhaps better, of short-termand long-term responsiveness. Yet in seeking out this positionthe Court should not underestimate the authority and prestigeit has achieved over the years. Representing the “conscienceof the community” it has come to possess a very real power tokeep alive and vital the higher values and goals toward whichour society imperfectly strives.... Given its prestige, it wouldappear that the power of the Court to protect freedom ofexpression is unlikely to be substantially curtailed unless thewhole structure of our democratic institutions is threatened.”
34. What is stated above applies to the Indian courts with equalforce. In Romesh Thappar case[20], Brij Bhushancase[43], Express Newspapers (Private) Ltd. v. Union ofIndia[44], Sakal Papers (P) Ltd. v. Union of India[45] and BennettColeman case[46] this Court has very strongly pronounced infavour of the freedom of press. Of these, we shall refer to someobservations made by this Court in some of them.
35. In Romesh Thappar case[20] this Court said at p. 602:
“... (The freedom) lay at the foundation of all democraticorganisations, for without free political discussion no publiceducation, so essential for the proper functioning of theprocesses of popular government, is possible. A freedom ofsuch amplitude might involve risks of abuse.... (But) ‘it is betterto leave a few of its noxious branches to their luxuriant growth,than, by pruning them away, to injure the vigour of those yieldingthe proper fruits’.”
36. In Bennett Coleman case[46] A.N. Ray, C.J. on behalf of themajority said at p. 796 (SCC p. 823, para 80) thus:
“The faith of a citizen is that political wisdom and virtuewill sustain themselves in the free market of ideas so long asthe channels of communication are left open. The faith in thepopular Government rests on the old dictum ‘let the peoplehave the truth and the freedom to discuss it and all will gowell’. The liberty of the press remains an ‘Ark of the Covenant’in every democracy.... The newspapers give ideas. Thenewspapers give the people the freedom to find out what ideasare correct.”
37. In the very same case, Mathew, J. observed at p. 818: (SCCp. 846, paras 168, 169)
“The constitutional guarantee of freedom of speech is notso much for the benefit of the press as it is for the benefit ofthe public. The freedom of speech includes within its compassthe right of all citizens to read and be informed. In Time Inc.v. Hill [385 US 374 : 17 L Ed 2d 456 : 87 S Ct 534 (1967)] theU.S. Supreme Court said:
44 AIR 1958 SC 578 : 1959 SCR 12
45 AIR 1962 SC 305 : (1962) 3 SCR 842
46 (1972) 2 SCC 788 : AIR 1973 SC 106 : (1973) 2 SCR 757
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‘The constitutional guarantee of freedom of speech andpress are not for the benefit of the press so much as for thebenefit of all the people.’ “
In Griswold v. Connecticut[47] the U.S. Supreme Courtwas of the opinion that the right of freedom of speech andpress includes not only the right to utter or to print, but the rightto read.”
B) This Court in the case of S. Rangarajan v. P. Jagjivan Ram& Ors.[48] held:
“36. The democracy is a Government by the people via opendiscussion. The democratic form of Government itself demandsits citizens an active and intelligent participation in the affairsof the community. The public discussion with people’sparticipation is a basic feature and a rational process ofdemocracy which distinguishes it from all other forms ofGovernment. The democracy can neither work nor prosperunless people go out to share their views. The truth is thatpublic discussion on issues relating to administration has positivevalue. What Walter Lippmann said in another context is relevanthere:
“When men act on the principle of intelligence, they go outto find the facts.... When they ignore it, they go insidethemselves and find out what is there. They elaborate theirprejudice instead of increasing their knowledge.”
43. Brandies, J., in Whitney v. California[49] propoundedprobably the most attractive free speech theory:
“... that the greatest menace to freedom is an inert people;that public discussion is a political duty;. .. It is hazardous todiscourage thought, hope and imagination; that the path ofsafety lies in the opportunity to discuss freely supposedgrievances and proposed remedies; and that the fittingremedy for evil counsels is good ones.”
45. The problem of defining the area of freedom of expressionwhen it appears to conflict with the various social interests 47 381 US 479, 482 : 14 L Ed 2d 510 : 85 SCt 1678 (1965)48 1989 (2) SCC 574H49 274 US 357, 375-78 (1927) : 71 L Ed 1045
enumerated under Article 19(2) may briefly be touched uponhere. There does indeed have to be a compromise betweenthe interest of freedom of expression and special interests.But we cannot simply balance the two interests as if they areof equal weight. Our commitment of freedom of expressiondemands that it cannot be suppressed unless the situationscreated by allowing the freedom are pressing and thecommunity interest is endangered. The anticipated dangershould not be remote, conjectural or far-fetched. It should haveproximate and direct nexus with the expression. The expressionof thought should be intrinsically dangerous to the public interest.In other words, the expression should be inseparably lockedup with the action contemplated like the equivalent of a “sparkin a power keg”.
35. Reliance was also placed on the decision of the ConstitutionBench of this Court in The Superintendent, Central Prison, Fatehgarhand another v. Dr. Ram Manohar Lohia[50], which dealt with theexpression “Public Order” appearing in Article 19 (2) of the Constitution,the relevant portion being :-
“9. …… The expression “public order” has a very wideconnotation. Order is the basic need in any organised society. Itimplies the orderly state of society or community in which citizenscan peacefully pursue their normal activities of life. In the wordsof an eminent Judge of the Supreme Court of America “theessential rights are subject to the elementary need for order withoutwhich the guarantee of those rights would be a mockery”. Theexpression has not been defined in the Constitution, but it occursin List II of its Seventh Schedule and is also inserted by theConstitution (First Amendment) Act, 1951 in clause (2) of Article19. The sense in which it is used in Article 19 can only beappreciated by ascertaining how the Article was construed beforeit was inserted therein and what was the defect to remedy whichthe Parliament inserted the same by the said amendment. Theimpact of clause (2) of Article 19 on Article 19(1)(a) before thesaid amendment was subject to judicial scrutiny by this Courtin Romesh Thappar v. State of Madras[20]. There the Governmentof Madras, in exercise of their powers under Section 9(1-A) of A
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the Madras Maintenance of Public Order Act, 1949, purported toissue an order whereby they imposed a ban upon the entry andcirculation of the journal called the “Cross Roads” in that State.The petitioner therein contended that the said order contravenedhis fundamental right to freedom of speech and expression. Atthe time when that order was issued the expression “public order”was not in Article 19(2) of the Constitution; but the words “thesecurity of the State” were there. In considering whether theimpugned Act was made in the interests of security of the State,Patanjali Sastri, J., as he then was, after citing the observation ofStephen in his Criminal Law of England, states:
“Though all these offences thus involve disturbances ofpublic tranquillity and are in theory offences against public order,the difference between them being only a difference of degree,yet for the purpose of grading the punishment to be inflicted inrespect of them they may be classified into different minorcategories as has been done by the Indian Penal Code. Similarly,the Constitution, in formulating the varying criteria forpermissible legislation imposing restrictions on the fundamentalrights enumerated in Article 19(1), has placed in a distinctcategory those offences against public order which aim atundermining the security of the State or overthrowing it, andmade their prevention the sole justification for legislativeabridgement of freedom of speech and expression, that is tosay, nothing less than endangering the foundations of the Stateor threatening its overthrow could justify curtailment of therights to freedom of speech and expression ….”
The learned Judge continued to state:
“The Constitution thus requires a line to be drawn in thefield of public order or tranquillity marking off, may be, roughly,the boundary between those serious and aggravated forms ofpublic disorder which are calculated to endanger the securityof the State and the relatively minor breaches of the peace ofa purely local significance, treating for this purpose differencesin degree as if they were differences in kind.”
The learned Judge proceeded further to state:
“We are therefore of opinion that unless a law restrictingfreedom of speech and expression is directed solely againstthe undermining of the security of the State or the overthrowof it, such law cannot fall within the reservation under clause(2) of Article 19, although the restrictions which it seeks toimpose may have been conceived generally in the interests ofpublic order.”
This decision establishes two propositions viz. (i) maintenanceof public order is equated with maintenance of public tranquillity;and (ii) the offences against public order are divided into twocategories viz. (a) major offences affecting the security of theState, and (b) minor offences involving breach of purely localsignificance. This Court in Brij Bhushan v. State ofDelhi[43] followed the earlier decision in the context of Section7(1)(c) of the East Punjab Public Safety Act, 1949. Fazl Ali, J., inhis dissenting judgment gave the expression “public order” a widermeaning than that given by the majority view. The learned Judgeobserved at p. 612 thus:
“When we approach the matter in this way, we find thatwhile ‘public disorder’ is wide enough to cover a small riot oran affray and other cases where peace is disturbed by, oraffects, a small group of persons, ‘public unsafety’ (or insecurityof the State), will usually be connected with serious internaldisorders and such disturbances of public tranquillity asjeopardize the security of the State.”
This observation also indicates that “public order” is equatedwith public peace and safety.Presumably in an attempt to getover the effect of these two decisions, the expression “public order”was inserted in Article 19(2) of the Constitution by the Constitution(First Amendment) Act, 1951, with a view to bring in offencesinvolving breach of purely local significance within the scope ofpermissible restrictions under clause (2) of Article 19. After thesaid amendment, this Court explained the scope of RomeshThapper’s case[20] in State of Bihar v. Shailabala Devi[51]. Thatcase was concerned with the constitutional validity of Section A
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4(1)(a) of the Indian Press (Emergency Powers) Act, 1931. Itdeals with the words or signs or visible representations whichincite to or encourage, or tend to incite to or encourage thecommission of any offence of murder or any cognizable offenceinvolving violence. Mahajan, J., as he then was, observed at p.660:
“The deduction that a person would be free to incite tomurder or other cognizable offence through the press withimpunity drawn from our decision in Romesh Thappercase could easily have been avoided as it was avoided byShearer, J., who in very emphatic terms said as follows:
‘I have read and re-read the judgments of the SupremeCourt, and I can find nothing in them myself which beardirectly on the point at issue, and leads me to think that, intheir opinion, a restriction of this kind is no longerpermissible.’”
The validity of that section came up for consideration afterthe Constitution (First Amendment) Act, 1951, which wasexpressly made retrospective, and therefore the said sectionclearly fell within the ambit of the words “in the interest ofpublic order”. That apart the observations of Mahajan, J., ashe then was, indicate that even without the amendment thatsection would have been good inasmuch as it aimed to preventincitement to murder.
10. The words “public order” were also understood in Americaand England as offences against public safety or public peace.The Supreme Court of America observedin Cantewell v. Connecticut[52] thus:
“The offence known as breach of the peace embracesa great variety of conduct destroying or menacing publicorder and tranquillity. It includes not only violent acts andwords likely to produce violence in others. No one wouldhave the hardihood to suggest that the principle of freedomof speech sanctions incitement to riot … When clear andpresent danger of riot, disorder, interference with traffic
upon the public streets, or other immediate threat to publicsafety, peace, or order appears, the power of the State toprevent or punish is obvious.”
The American decisions sanctioned a variety of restrictionson the freedom of speech in the interests of public order. Theycover the entire gamut of restrictions that can be imposed underdifferent heads in Article 19(2) of our Constitution. Thefollowing summary of some of the cases of the Supreme Courtof America given in a well-known book on Constitutional lawillustrates the range of categories of cases covering thatexpression. “In the interests of public order, the State mayprohibit and punish the causing of ‘loud and raucous noise’ instreets and public places by means of sound amplifyinginstruments, regulate the hours and place of public discussion,and the use of the public streets for the purpose of exercisingfreedom of speech; provide for the expulsion of hecklers frommeetings and assemblies, punish utterances tending to incitean immediate breach of the peace or riot as distinguished fromutterances causing mere ‘public inconvenience, annoyance orunrest’”. In England also Acts like Public Order Act, 1936,Theatres Act, 1843 were passed: the former making it anoffence to use threatening, abusive or insulting words orbehaviour in any public place or at any public meeting withintent to provoke a breach of the peace or whereby a breachof the peace is likely to be caused, and the latter was enactedto authorise the Lord Chamberlain to prohibit any stage playwhenever he thought its public performance would militateagainst good manners, decorum and the preservation of thepublic peace. The reason underlying all the decisions is that ifthe freedom of speech was not restricted in the manner therelevant Acts did, public safety and tranquillity in the Statewould be affected.
11. But in India under Article 19(2) this wide concept of“public order” is split up under different heads. It enables theimposition of reasonable restrictions on the exercise of the rightto freedom of speech and expression in the interests of thesecurity of the State, friendly relations with foreign States, public AB
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order, decency or morality, or in relation to contempt of court,defamation or incitement to an offence. All the groundsmentioned therein can be brought under the general head“public order” in its most comprehensive sense. But thejuxtaposition of the different grounds indicates that, thoughsometimes they tend to overlap, they must be ordinarily intendedto exclude each other. “Public order” is therefore somethingwhich is demarcated from the others. In that limited sense,particularly in view of the history of the amendment, it can bepostulated that “public order” is synonymous with public peace,safety and tranquillity.”
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36. Having dealt with the applicability of Section 124A of theIPC[3] and the content of the rights of a citizen and of the Press, the nextstage is to see whether the petitioner is right in his submission that nooffence as alleged, has been made out. We need not set out the principles,Don the basis of which an FIR or a Complaint or pending Criminalproceedings can be quashed. Those principles, post the decision of thisCourt in State of Haryana and Others vs. Bhajan Lal and Others[53]are well settled. We may however refer to two decisions of this Courtwhere, in the context of the alleged offences under Sections 153A andE505 of the IPC[3], the criminal proceedings were quashed.
A) In Manzar Sayeed Khan vs. State of Maharashtra andAnother[54], it was laid down that the requisite intention to promote feelingsof enmity or hatred between different classes of people, must be judgedprimarily by “the language of the book and the circumstances in whichFthe book was written”; and accepted that the effect of the words mustbe judged from the standards of reasonable, strong minded, firm andcourageous men. It was observed: - “16. Section 153-A IPC, as extracted hereinabove, covers a casewhere a person by words, either spoken or written, or by signs orGby visible representations or otherwise, promotes or attempts topromote, disharmony or feelings of enmity, hatred or ill will betweendifferent religious, racial, language or regional groups or castes orcommunities or acts prejudicial to the maintenance of harmony or 53 (1992) Suppl 1 SCC 335H54 (2007) 5 SCC 1
is likely to disturb the public tranquillity. The gist of the offence isthe intention to promote feelings of enmity or hatred betweendifferent classes of people. The intention to cause disorder orincite the people to violence is the sine qua non of the offenceunder Section 153-A IPC and the prosecution has to prove primafacie the existence of mens rea on the part of the accused. Theintention has to be judged primarily by the language of the bookand the circumstances in which the book was written and published.The matter complained of within the ambit of Section 153-A mustbe read as a whole. One cannot rely on strongly worded andisolated passages for proving the charge nor indeed can one takea sentence here and a sentence there and connect them by ameticulous process of inferential reasoning.
17. In Ramesh v. Union of India[55]this Court held that TVserial Tamas did not depict communal tension and violence andthe provisions of Section 153-A IPC would not apply to it. It wasalso not prejudicial to the national integration falling under Section153-B IPC. Approving the observations of Vivian Bose, J.in Bhagwati Charan Shukla v. Provincial Govt.[56] the Courtobserved that:
“the effect of the words must be judged from the standards ofreasonable, strong-minded, firm and courageous men, and notthose of weak and vacillating minds, nor of those who scentdanger in every hostile point of view. … It is the standard ofordinary reasonable man or as they say in English law ‘theman on the top of a Clapham omnibus’.” (Ramesh case[55],SCC p. 676, para 13)”
B) In Patricia Mukhim vs. State of Meghalaya and Others[57],the requisite intention to bring out the basic ingredient of offences underSections 153A and 505 (1) (c) of the IPC[3] was found to be absent. ThisCourt observed:- “13. In the instant case, applying the principles laid down by thisCourt as mentioned above, the question that arises for ourconsideration is whether the Facebook post-dated 04.07.2020 was 55 (1988) 1 SCC 668
56 AIR 1947 Nag 1
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Aintentionally made for promoting class/community hatred and hasthe tendency to provoke enmity between two communities. A closescrutiny of the Facebook post would indicate that the agony ofthe Appellant was directed against the apathy shown by the ChiefMinister of Meghalaya, the Director General of Police and theDorbar Shnong of the area in not taking any action against theBculprits who attacked the non-tribals youngsters. The Appellantreferred to the attacks on nontribals in 1979. At the most, theFacebook post can be understood to highlight the discriminationagainst nontribals in the State of Meghalaya. However, theAppellant made it clear that criminal elements have no communityCand immediate action has to be taken against persons who hadindulged in the brutal attack on non-tribal youngsters playingbasketball. The Facebook post read in its entirety pleads forequality of non-tribals in the State of Meghalaya. In ourunderstanding, there was no intention on the part of the Appellantto promote class/community hatred. As there is no attempt madeDby the Appellant to incite people belonging to a community toindulge in any violence, the basic ingredients of the offence underSections 153 A and 505(1)(c) have not been made out. Whereallegations made in the FIR or the complaint, even if they aretaken on their face value and accepted in their entirety do not primaEfacie constitute any offence or make out a case against theaccused, the FIR is liable to be quashed[58].”
37. According to the respondents, apart from the offences speltout in the FIR, certain other offences are also made out. The instantcase, therefore, has to be seen from both the perspectives, namelyFwhether any of the offences as stated in the FIR and whether thosereferred to in the submissions of the respondents, are made out or not.
38. Leaving aside two incorrect statements made in the FIR whichwere dealt with in paragraph 27 hereinabove, the following assertionsfrom the talk show are relied upon to say that the offences as allegedGare made out: - “i)Our biggest failure has been that we do nothave enough facilities to carry out testing.
ii)Till now we do not have any information howAmany (PPE suits, N95 masks and masks of3 ply) we have and how many will becomeavailable by when.
iii)The Ventilators needed in other countriesand in India, respiratory devices andBsanitisers were being exported till24.3.2020 instead of keeping these for usein our country.
iv)That supply chains got disrupted due toblockage of roads and now it is being heardCthat transportation of essential goods hasbeen allowed.
v)It is not difficult to imagine that when thesupply chains have been closed, when theshops are closed, some people had gone toDthe extent of fearing food riots which havenot happened in our country could happen.
vi)When people started returning from Mumbai…. That should have been a big signal forthe Government about the effect theEcomplete lockdown in the country can bringabout, but no lessons were learnt.”
39. We now consider these statements.
A) It is common knowledge that the countries all over the worldfound themselves wanting in terms of infrastructure and facilities to copeup with the effects of Covid-19 Pandemic. Considering the size of thepopulation of this country, the testing facilities to gauge and check thespread and effect of the Pandemic, at least in the initial stages of thesurge, were not exactly adequate. If in that light, the petitioner made anycomments about testing facilities or PPE Suits, N-95 masks and masksof 3 ply, those comments in first two statements, cannot be anythingother than appraisal of the situation then obtaining. It was not even thecase of the respondents that these two statements were factuallyincorrect.
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B) With regard to the third statement, the contention of theHrespondents was that the ban on export was imposed on 19.03.2020 and Athe said statement was therefore not quite correct. It was also submittedthat the Petitioner produced no evidence of actual exports before theban was imposed on 19.03.2020 and that there were no exportsimmediately proceeding the imposition of ban.
C) The effect of Nation-wide lockdown which came into effectBfrom the midnight intervening 24.03.2020 and 25.03.2020, according tothe Petitioner, resulted in disruption of supply chains due to blockage ofroads. It was the submission of the respondents that by ConsolidatedGuidelines issued on 28.03.2020 (which was stated to be an order underSection 188 of the IPC[3]), adequate steps were directed to be taken toensure that there was no disruption in supply of essential goods. It mustCbe stated that the fourth statement did acknowledge that the transportationof essential goods was being allowed and, in that sense, it was more orless correct depiction of the state of affairs then prevailing.
D) The emphasis to a great extent, were, however, put on thefifth and the sixth statements and it was strongly contended that saidDstatements not only gave factually incorrect information but amountedto incite the general public and that it was because of such incorrectinformation, the movement of migrant workers had begun.
On the other hand, reliance was placed by the petitioner on theinterview of former Chief Statistician reported on 28.03.2020 that if foodErequirements of migrant workers were not fulfilled amid countrywidelockdown, food riots could be a real possibility. It was submitted that bythe time the talk show was uploaded, the movement of migrant workershad already started and was at the peak.
40. It may be relevant to note here that Writ Petition (C) No.468Fof 2020 (Alakh Alok Srivastava v. Union of India etc.) and connectedpetition[59], filed on 29.03.2020 by two Advocates, sought to highlight theplight of migrant workers. These matters came up on 31.03.2020 beforethis Court when it was observed:- “In the instant writ petitions, we are concerned about the migrantGlabourers who have started leaving their places of work for theirhome villages/towns located at distant places. For example,thousands of migrant labourers left Delhi to reach their homes inthe States Uttar Pradesh and Bihar, by walking on the highways.
We are informed that the labourers who are unemployed due tolock down were apprehensive about their survival. Panic wascreated by some fake news that the lock down would last formore than three months.
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During the course of hearing, the Solicitor General of India madea statement that the information received by the Control Roomtoday at 2.30 A.M. showed that 21,064 relief camps have beenset up by various State Governments/Union Territories where themigrant labourers have been shifted and they are being providedwith basic amenities like food, medicines, drinking water, etc.According to the Status Report, 6,66,291 persons have beenprovided shelters and 22,88,279 persons have been provided food.
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The Solicitor General of India has also referred to the Status Reportto make a submission that the exodus of migrant labourers wastriggered due to panic created by some fake/misleading news andsocial media.
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While informing this Court about the steps taken by theGovernment of India to ensure that the migrant labourers are beingshifted to nearby shelters/relief camps from place they were foundto be walking and basic amenities being provided to them, theUnion of India has sought a direction from this Court to the StateGovernments and the Union Territories to implement the directionsissued by the Central Government. A further direction was soughtto prevent fake and inaccurate reporting whether intended or not,either by electronic print or social medial which will cause panicin the society.
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The migration of large number of labourers working in the citieswas triggered by panic created by fake news that the lock downwould continue for more than three months. Such panic drivenmigration has caused untold suffering to those who believed andacted on such news. In fact, some have lost their lives in the A
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Aprocess. It is therefore not possible for us to overlook this menaceof fake news either by electronic, print or social media.
Section 54 of the Disaster Management Act, 2005 provides forpunishment to a person who makes or circulates a false alarm orwarning as to disaster or its severity or magnitude, leading to panic.BSuch person shall be punished with imprisonment which mayextend to one year or with fine.
Disobedience to an order promulgated by a public servant wouldresult in punishment under section 188 of the Indian Penal Code.An advisory which is in the nature of an order made by the publicCauthority attracts section 188 of the Indian Penal Code.
We trust and expect that all concerned viz., State Governments,Public Authorities and Citizens of this country will faithfully complywith the directives, advisories and orders issued by the Union ofIndia in letter and spirit in the interest of public safety.
DIn particular, we expect the Media (print, electronic or social) tomaintain a strong sense of responsibility and ensure that unverifiednews capable of causing panic is not disseminated. A daily bulletinby the Government of India through all media avenues includingsocial media and forums to clear the doubts of people would beEmade active within a period of 24 hours as submitted by the SolicitorGeneral of India. We do not intend to interfere with the freediscussion about the pandemic, but direct the media refer to andpublish the official version about the developments.”
41. The developments referred to in the aforementioned OrderFshow that the movement of migrant workers back to their hometown orvillages had posed an alarming situation. The writ petitions did bring outthose issues, in response to which the concern shown by the Governmentand the steps undertaken by the authorities were placed on record. ThisCourt suggested that a daily bulletin by the Government of India bemade active so that correct and precise information was made availableGto the general public and the exodus of migrant workers could thus bechecked. However, the Order also shows the magnitude of the problemwhich required about 6,66,291 persons to be provided shelter and22,88,279 persons to be provided food.
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42. What was prevailing on 30.03.2020 was therefore clear andmigrant workers in huge numbers were moving towards their hometowns/villages. In the circumstances, there would naturally be someapprehension about the shelter and food to be provided to them en-route. The former Chief Statistician had expressed a possibility withthe intent to invite the attention of the authorities. If the petitioner in histalk show uploaded on 30.03.2020, that is even before the matter wastaken up by this Court, made certain assertions in his 5[th] and 6[th] statement,he would be within his rights to say that as a Journalist he was touchingupon issues of great concern so that adequate attention could be bestowedto the prevailing problems. It cannot be said that the petitioner wasspreading any false information or rumours. It is not the case of therespondents that the migrant workers started moving towards theirhometowns/villages purely as a result of the statements made by thepetitioner. Such movement of migrant workers had begun long before.In the circumstances, these statements can neither be taken to be anattempt to incite migrant workers to start moving towards theirhometowns or villages nor can it be taken to be an incitement for causingany food riots.
The situation was definitely alarming around 30.03.2020 and as ajournalist if the petitioner showed some concern, could it be said that hecommitted offences as alleged.
43. The Principles culled out in paragraph 33 hereinabove fromthe decision of Court in Kedar Nath Singh[2] show that a citizen has aright to criticize or comment upon the measures undertaken by theGovernment and its functionaries, so long as he does not incite people toviolence against the Government established by law or with the intentionof creating public disorder; and that it is only when the words orexpressions have pernicious tendency or intention of creating publicdisorder or disturbance of law and order that Sections 124A and 505 ofthe IPC[3] must step in.
In our view, the statements by the petitioner as mentionedhereinabove, if read in the light of the principles emanating from thedecision in Kedar Nath Singh[2] and against the backdrop of thecircumstances when they were made, can at best be termed as expressionof disapprobation of actions of the Government and its functionaries sothat prevailing situation could be addressed quickly and efficiently. Theywere certainly not made with the intent to incite people or showed A
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Atendency to create disorder or disturbance of public peace by resort toviolence. The petitioner was within the permissible limits laid down inthe decision of this Court in Kedar Nath Singh[2]. It may be that certainfactual details in the 3[rd] statement regarding the date when the ban cameinto effect were not completely correct. However, considering the driftof the entire talk show and all the statements put together it cannot beBsaid that the petitioner crossed the limits set out in the decision of thisCourt in Kedar Nath Singh[2].
44. We are, therefore, of the firm view that the prosecution of thepetitioner for the offences punishable under Sections 124A and 505 (1)(b) of the IPC[3] would be unjust. Those offences, going by the allegationsCin the FIR and other attending circumstances, are not made out at alland any prosecution in respect thereof would be violative of the rights ofthe petitioner guaranteed under Article 19(1)(a) of the Constitution.
45. The other offending provision referred to in the FIR is Section501 of the IPC[3] which is printing or engraving a matter which isDdefamatory to any person. As a matter of fact, the cognizance withrespect to an offence punishable under Chapter XXI of the IPC[3] (Section501 of the IPC[3] is part of said Chapter) can be taken by a Court onlyupon a complaint made by the person aggrieved. Without going into suchtechnicalities, in our view, there is nothing defamatory in the statementsEmade by the petitioner. Further, the statements of the petitioner wouldbe covered by the second and third exceptions to Section 499 of theIPC[3]. In some of the cases decided by this Court, for example, inJawaharlal Darda and Others vs. Manoharrao GanpatraoKapsikar and Another[60], Rajendra Kumar Sitaram Pande andFOthers vs. Uttam and Another[61], Vivek Goenka and Others vs. Y.R.Patil[62], and S. Khushboo vs. Kanniammal and Another[63], relying onexceptions to Section 499 of the IPC[3], the criminal proceeding initiatedagainst the accused were quashed. Thus, the instant proceedings, in sofar as Section 501 IPC[3] is concerned, also deserve to be quashed.
46. The other provision referred to in the FIR was Section 268 ofGthe IPC[3] which is nothing but the definition of “Public Nuisance” and isnot a penal provision in itself which prescribes any punishment. It was 60 (1998) 4 SCC 11261 (1999) 3 SCC 13462 (2000) 9 SCC 87H63 (2010) 5 SCC 600
also not the case of the respondent that any penal provision involvingelement of “Public Nuisance” was attracted in the instant case.47. Thus, all the offences set out in the FIR, in our consideredview, are not made out at all.
48. We now turn to the case with regard to the offences whichwere not spelt out in the FIR. It was contended by the respondents thatin addition to the offences specifically set out in the FIR, the petitionerwould also be guilty of the offences punishable under Sections 52 and 54of the DM Act[1] and Section 188 of the IPC[3]. According to therespondents, the statements made by the petitioner during the Talk Showamounted to circulating a false alarm and would therefore be coveredby Section 54 of the DM Act[1]; and that the petitioner would also beguilty of having violated communications dated 24.3.2020 and 28.3.2020(set out earlier in paragraph 14) and thereby committed offences underSection 188 of the IPC[3].
49. The response of Mr. Vikas Singh, learned Senior Advocatefor the petitioner was that by virtue of Section 60[64] of the DM Act[1], theoffences punishable under the provisions of the DM Act[1] could be takencognizance of only upon a complaint being made by the certain designatedofficials or functionaries. Similarly, in respect of offence under Section188 of the IPC[3], by virtue of Section 195 of the Code, cognizance couldbe taken only upon a complaint in writing made by the concerned publicservant whose orders were allegedly violated or by someone who wasadministratively superior to such public servant. These statutoryrequirements having not been satisfied, the submission that the offencespunishable under the DM Act[1] and under Section 188 of the IPC[3] weremade out, was required to be rejected. Reliance was placed by him onthe decisions of this Court in Daulat Ram v. State of Punjab[65] and in C.Muniappan and Others v. State of Tamil Nadu[66] as well as casesreferred to in C. Muniappan[66].
64 60. Cognizance of offences.—No court shall take cognizance of an offence under thisAct except on a complaint made by—
(a) the National Authority, the State Authority, the Central Government, the StateGovernment, the District Authority or any other authority or officer authorised in thisbehalf by that Authority or Government, as the case may be; or (b) any person who has given notice of not less than thirty days in the manner prescribed,of the alleged offence and his intention to make a complaint to the National Authority,the State Authority, the Central Government, the State Government, the DistrictAuthority or any other authority or officer authorised as aforesaid 65 AIR 1962 SC 1206
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AThe other facet of the submission was that even on merits, thestatements made by the petitioner in his Talk Show did not satisfy therequirements of both said statutory provisions and therefore the petitionerwas entitled to the relief prayed for.
50. In reply, Mr. S.V. Raju, learned Additional Solicitor GeneralBsubmitted that the injunctions spelt out in Section 60 of the DM Act[1] andSection 195 of the Code would come into play only at the stage ofcognizance by the Court and as such there would not be any bar to theinvocation of these provisions at a stage anterior to the stage of cognizance.
51. We need not go into the technical issue whether the initiationCof the proceedings in respect of the offences punishable under DM Act[1]and/or under Section 188 of the IPC[3] could only be after an appropriatecomplaint would be made in writing as submitted by the petitioner, as inour considered view, none of these offences as submitted by therespondents get attracted in the instant matter.
DA) Section 188 of the IPC[3] deals with “Disobedience to orderduly promulgated by public servant”. If a person, though directed interalia to abstain from a certain act, disobeys a direction issued by a PublicServant lawfully empowered to promulgate such direction or order,Section 188 of the IPC[3] may get attracted. The communications dated24.3.2020 and 28.3.2020 which have been quoted earlier were pressedEinto service and it was submitted that said communications which everyonewas bound and obliged to follow, were violated by the petitioner. Wehave gone through these communications and in our view, there wasnothing therein which was violated as a result of the Talk Show uploadedby the petitioner. An attempt was then made to rely on the order dated31.3.2020[7] to submit that this Court had issued certain directions andFexpected the media to maintain strong sense of responsibility and ensurethat unverified news capable of causing panic was not disseminated.First, the direction was issued on 31.3.2020 i.e. after the episode wasuploaded on 30.3.2020 and secondly, we have not found any infirmity orillegality in the statements made by the petitioner, on the basis of whichGit could be possibly be said that he was attempting to disseminate anynews capable of causing panic. Consequently, the provisions of Section188 of the IPC[3] would not get attracted at all.
B) Section 52 of the DM Act[1] deals with the lodging of a falseclaim by a person for obtaining any relief, assistance, etc., which provisionHhas nothing to do with the present fact situation. Section 54 deals with cases where a person makes or circulates a false alarm or warning as todisaster or its severity or magnitude, leading to panic. We have alreadyheld that the statements made by the petitioner were within the limitsprescribed by the decision of this Court in Kedar Nath Singh[2] and thatthe statements were without any intent to incite people for creating publicdisorder. It was not even suggested that as a result of statements madeby the petitioner any situation of panic had resulted in any part of thecountry.
52. In the circumstances, without going into the technicalitieswhether the initiation of the proceedings could only be through a complaintfiled in conformity with Section 60 of the DM Act[1] or Section 195 of theCode, in our view, the provisions of the DM Act[1] or Section 188 of theIPC[3] are not attracted at all.
53. Consequently, we accept the first prayer made by the petitionerin this Writ Petition and quash FIR No.0053 dated 6.5.2020 registered atPolice Station Kumarsain, District Shimla, Himachal Pradesh and anyproceedings arising therefrom. We must however clarify that the issuesconcerning ownership of HW News which had aired the talk show orthe nature and effect of violation, if any, of the Norms of Journalisticconduct framed by the Press Council of India, have not been gone intoby us as they do not strictly are of any concern for determining firstprayer made in the writ petition.
54. We now come to the second prayer made in the writ petition,in support of which reliance was placed by the petitioner on the decisionsof this Court in Jacob Mathew[4] and Lalita Kumari[5]. In JacobMathew[4], a Bench of three Judges of this Court issued certain guidelineswith respect to the prosecution of medical professionals.
“Guidelines — Re: prosecuting medical professionals
50. As we have noticed hereinabove that the cases of doctors(surgeons and physicians) being subjected to criminal prosecutionare on an increase. Sometimes such prosecutions are filed byprivate complainants and sometimes by the police on an FIR beinglodged and cognizance taken. The investigating officer and theprivate complainant cannot always be supposed to have knowledgeof medical science so as to determine whether the act of theaccused medical professional amounts to a rash or negligent actwithin the domain of criminal law under Section 304-A IPC. The A
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criminal process once initiated subjects the medical professionalto serious embarrassment and sometimes harassment. He has toseek bail to escape arrest, which may or may not be granted tohim. At the end he may be exonerated by acquittal or dischargebut the loss which he has suffered to his reputation cannot becompensated by any standards.
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51. We may not be understood as holding that doctors can neverbe prosecuted for an offence of which rashness or negligence isan essential ingredient. All that we are doing is to emphasise theneed for care and caution in the interest of society; for, the servicewhich the medical profession renders to human beings is probablyCthe noblest of all, and hence there is a need for protecting doctorsfrom frivolous or unjust prosecutions.Many a complainant preferrecourse to criminal process as a tool for pressurising the medicalprofessional for extracting uncalled for or unjust compensation.Such malicious proceedings have to be guarded against.
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52. Statutory rules or executive instructions incorporating certainguidelines need to be framed and issued by the Government ofIndia and/or the State Governments in consultation with theMedical Council of India. So long as it is not done, we propose tolay down certain guidelines for the future which should governEthe prosecution of doctors for offences of which criminal rashnessor criminal negligence is an ingredient. A private complaint maynot be entertained unless the complainant has produced primafacie evidence before the court in the form of a credible opiniongiven by another competent doctor to support the charge ofrashness or negligence on the part of the accused doctor. TheFinvestigating officer should, before proceeding against the doctoraccused of rash or negligent act or omission, obtain an independentand competent medical opinion preferably from a doctor ingovernment service, qualified in that branch of medical practicewho can normally be expected to give an impartial and unbiasedGopinion applying the Bolam67test to the facts collected in theinvestigation. A doctor accused of rashness or negligence, maynot be arrested in a routine manner (simply because a charge hasbeen levelled against him). Unless his arrest is necessary for 67 Balam vs. Friern Hospital Management Committee: (1957) 1 WLR 582 : (1957) 2 AllHER 118 (QBD)
furthering the investigation or for collecting evidence or unlessthe investigating officer feels satisfied that the doctor proceededagainst would not make himself available to face the prosecutionunless arrested, the arrest may be withheld.”
(Emphasis supplied)
55. Before issuing the aforesaid guidelines, this Court consideredthe illustrations mentioned below Sections 88, 92 and 93 of the IPC[3] andsome relevant decisions, whereafter conclusions were summed up asunder:- “Conclusions summed up
48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to dosomething which a reasonable man guided by those considerationswhich ordinarily regulate the conduct of human affairs would do,or doing something which a prudent and reasonable man wouldnot do. The definition of negligence as given in Law of Torts,Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred tohereinabove, holds good. Negligence becomes actionable onaccount of injury resulting from the act or omission amounting tonegligence attributable to the person sued. The essentialcomponents of negligence are three: “duty”, “breach” and“resulting damage”.
(2) Negligence in the context of the medical profession necessarilycalls for a treatment with a difference. To infer rashness ornegligence on the part of a professional, in particular a doctor,additional considerations apply. A case of occupational negligenceis different from one of professional negligence. A simple lack ofcare, an error of judgment or an accident, is not proof of negligenceon the part of a medical professional. So long as a doctor followsa practice acceptable to the medical profession of that day, hecannot be held liable for negligence merely because a betteralternative course or method of treatment was also available orsimply because a more skilled doctor would not have chosen tofollow or resort to that practice or procedure which the accusedfollowed. When it comes to the failure of taking precautions, whathas to be seen is whether those precautions were taken which A
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Athe ordinary experience of men has found to be sufficient; a failureto use special or extraordinary precautions which might haveprevented the particular happening cannot be the standard forjudging the alleged negligence. So also, the standard of care, whileassessing the practice as adopted, is judged in the light ofknowledge available at the time of the incident, and not at theBdate of trial. Similarly, when the charge of negligence arises outof failure to use some particular equipment, the charge would failif the equipment was not generally available at that particular time(that is, the time of the incident) at which it is suggested it shouldhave been used.
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(3) A professional may be held liable for negligence on one of thetwo findings: either he was not possessed of the requisite skillwhich he professed to have possessed, or, he did not exercise,with reasonable competence in the given case, the skill which hedid possess. The standard to be applied for judging, whether theperson charged has been negligent or not, would be that of an D
ordinary competent person exercising ordinary skill in thatprofession. It is not possible for every professional to possess thehighest level of expertise or skills in that branch which he practices.A highly skilled professional may be possessed of better qualities,but that cannot be made the basis or the yardstick for judging theEperformance of the professional proceeded against on indictmentof negligence.
(4) The test for determining medical negligence as laid downin Bolam case[67] holds good in its applicability in India.
F(5) The jurisprudential concept of negligence differs in civil andcriminal law. What may be negligence in civil law may notnecessarily be negligence in criminal law. For negligence to amountto an offence, the element of mens rea must be shown to exist.For an act to amount to criminal negligence, the degree ofnegligence should be much higher i.e. gross or of a very highGdegree. Negligence which is neither gross nor of a higher degreemay provide a ground for action in civil law but cannot form thebasis for prosecution.
(6) The word “gross” has not been used in Section 304-A IPC,yet it is settled that in criminal law negligence or recklessness, toHbe so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-AIPC has to be read as qualified by the word “grossly”.
(7) To prosecute a medical professional for negligence undercriminal law it must be shown that the accused did something orfailed to do something which in the given facts and circumstancesno medical professional in his ordinary senses and prudence wouldhave done or failed to do. The hazard taken by the accused doctorshould be of such a nature that the injury which resulted wasmost likely imminent.”
56. Bolam’s[67] case referred to in conclusion (4) was dealt with inparagraph 20 of the decision as follows:- “20. The water of Bolam[67] test has ever since flown and passedunder several bridges, having been cited and dealt with in severaljudicial pronouncements, one after the other and has continued tobe well received by every shore it has touched as neat, clean anda well-condensed one. After a review of various authoritiesBingham, L.J. in his speech in Eckersley v. Binnie[68] test in thefollowing words: (Con LR p. 79)
“From these general statements it follows that aprofessional man should command the corpus of knowledgewhich forms part of the professional equipment of the ordinarymember of his profession. He should not lag behind otherordinary assiduous and intelligent members of his profession inthe knowledge of new advances, discoveries and developmentsin his field. He should have such an awareness as an ordinarilycompetent practitioner would have of the deficiencies in hisknowledge and the limitations on his skill. He should be alert tothe hazards and risks in any professional task he undertakes tothe extent that other ordinarily competent members of theprofession would be alert. He must bring to any professionaltask he undertakes no less expertise, skill and care than otherordinarily competent members of his profession would bring,but need bring no more. The standard is that of the reasonableaverage. The law does not require of a professional man thathe be a paragon combining the qualities of polymath andprophet.” (Charlesworth & Percy, ibid., para 8.04)”
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A57. What the decision makes clear is that before a medicalprofessional is prosecuted for negligence in criminal law, some thresholdrequirements ought to be satisfied, otherwise an unwarranted prosecutionmay not only result in great prejudice to the concerned medicalprofessional but would also not instill a sense of confidence in the medicalprofessionals for discharging their duties. Considering Section 88 of theBIPC[3] falling in Chapter titled “General Exceptions” and various illustrationsas stated above, adequate protection was found necessary to be extendedto medical professionals, whereafter aforestated guidelines were issuedby this Court.
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58. The Constitution Bench of this Court in Lalita Kumari’s[5]Cwas called upon to consider, inter alia, the effect of Section 154 of theIPC[3]. One of the questions dealt with by the Constitution Bench waswhether the police would be required to make any preliminary inquirybefore registration of an FIR. Taking note of the decision of this Courtin Jacob Mathew[4], this Court in Lalita Kumari’s[5]case observed:
D“Exceptions
115. Although, we, in unequivocal terms, hold that Section 154 ofthe Code postulates the mandatory registration of FIRs on receiptof all cognizable offences, yet, there may be instances wherepreliminary inquiry may be required owing to the change in genesisEand novelty of crimes with the passage of time. One such instanceis in the case of allegations relating to medical negligence on thepart of doctors. It will be unfair and inequitable to prosecute amedical professional only on the basis of the allegations in thecomplaint.
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116. In the context of medical negligence cases, in JacobMathew[4] , it was held by this Court as under : (SCC p. 35, paras51-52)
“51. We may not be understood as holding that doctors cannever be prosecuted for an offence of which rashness ornegligence is an essential ingredient. All that we are doing is toemphasise the need for care and caution in the interest ofsociety; for, the service which the medical profession rendersto human beings is probably the noblest of all, and hence there G
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is a need for protecting doctors from frivolous or unjustprosecutions. Many a complainant prefer recourse to criminalprocess as a tool for pressurising the medical professional forextracting uncalled for or unjust compensation. Such maliciousproceedings have to be guarded against.
52. Statutory rules or executive instructions incorporatingcertain guidelines need to be framed and issued by theGovernment of India and/or the State Governments inconsultation with the Medical Council of India. So long as it isnot done, we propose to lay down certain guidelines for thefuture which should govern the prosecution of doctors foroffences of which criminal rashness or criminal negligence isan ingredient. A private complaint may not be entertained unlessthe complainant has produced prima facie evidence before thecourt in the form of a credible opinion given by anothercompetent doctor to support the charge of rashness ornegligence on the part of the accused doctor. The investigatingofficer should, before proceeding against the doctor accusedof rash or negligent act or omission, obtain an independent andcompetent medical opinion preferably from a doctor ingovernment service, qualified in that branch of medical practicewho can normally be expected to give an impartial and unbiasedopinion applying the Bolam[67] test to the facts collected in theinvestigation. A doctor accused of rashness or negligence, maynot be arrested in a routine manner (simply because a chargehas been levelled against him). Unless his arrest is necessaryfor furthering the investigation or for collecting evidence orunless the investigating officer feels satisfied that the doctorproceeded against would not make himself available to facethe prosecution unless arrested, the arrest may be withheld.”
117. In the context of offences relating to corruption, this Courtin P. Sirajuddin v. State of Madras[69], expressed the need fora preliminary inquiry before proceeding against public servants.
118. Similarly, in CBI v. Tapan Kumar Singh[70], this Court hasvalidated a preliminary inquiry prior to registering an FIR only 69 (1970) 1 SCC 595 : 1970 SCC (Cri) 240
70 (2003) 6 SCC 175 : 2003 SCC (Cri) 1305
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on the ground that at the time the first information is received,the same does not disclose a cognizable offence.
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119. Therefore, in view of various counterclaims regardingregistration or non-registration, what is necessary is only thatthe information given to the police must disclose the commissionBof a cognizable offence. In such a situation, registration of anFIR is mandatory. However, if no cognizable offence is madeout in the information given, then the FIR need not be registeredimmediately and perhaps the police can conduct a sort ofpreliminary verification or inquiry for the limited purpose ofascertaining as to whether a cognizable offence has beenCcommitted. But, if the information given clearly mentions thecommission of a cognizable offence, there is no other optionbut to register an FIR forthwith. Other considerations are notrelevant at the stage of registration of FIR, such as, whetherthe information is falsely given, whether the information isDgenuine, whether the information is credible, etc. These arethe issues that have to be verified during the investigation ofthe FIR. At the stage of registration of FIR, what is to be seenis merely whether the information given ex facie discloses thecommission of a cognizable offence. If, after investigation, theinformation given is found to be false, there is always an optionEto prosecute the complainant for filing a false FIR.”
Thereafter, directions were issued in paragraph 120 of the decisionand direction 120.6 was as under:
“Conclusion/Directions
F120. In view of the aforesaid discussion, we hold:
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120.6. As to what type and in which cases preliminary inquiry isto be conducted will depend on the facts and circumstances ofeach case. The category of cases in which preliminary inquiryGmay be made are as under:
(a) Matrimonial disputes/family disputes (b) Commercial offences
(c) Medical negligence cases
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(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiatingcriminal prosecution, for example, over 3 months’ delay inreporting the matter without satisfactorily explaining the reasonsfor delay.
The aforesaid are only illustrations and not exhaustive of allconditions which may warrant preliminary inquiry.”
59. We may now notice the relevant observations in P. Sirajuddin,Etc. vs. State of Madras, Etc.[71], which were:- “17. In our view the procedure adopted against the appellantbefore the laying of the first information report though not in termsforbidden by law, was so unprecedented and outrageous as toshock one’s sense of justice and fairplay. No doubt whenallegations about dishonesty of a person of the appellant’s rankwere brought to the notice of the Chief Minister it was his duty todirect as enquiry into the matter. The Chief Minister in our viewpursued the right course. The High Court was not impressed bythe allegation of the appellant that the Chief Minister was movedto take an initiative at the instance of person who was going tobenefit by the retirement of the appellant and who was said to bea relation of the Chief Minister. The High Court rightly held thatthe relationship between the said person and the Chief Minister, ifany, was so distant that it could not possibly have influenced himand we are of the same view. Before a public servant, whateverbe his status, is publicly charged with acts of dishonesty whichamount to serious misdemeanour or misconduct of the type allegedin this case and a first information is lodged against him, theremust be some suitable preliminary enquiry into the allegations bya responsible officer. The lodging of such a report against a person,specially one who like the appellant occupied the top position in adepartment, even if baseless, would do incalculable harm not onlyto the officer in particular but to the department he belonged to, ingeneral. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras andthe said department was entrusted with enquiries of this kind, noexception can of taken to an enquiry by officers of this department A
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but any such enquiry must proceed in a fair and reasonable manner.The enquiring officer must not act under any preconceived ideaof guilt of the person whose conduct was being enquired into orpursue the enquiry in such a manner as to lead to an inferencethat he was bent upon securing the conviction of the said personby adopting measures which are of doubtful validity or sanction.The means adopted no less than the end to be achieved must beimpeccable. In ordinary departmental proceedings against aGovernment servant charged with delinquency, the normal practicebefore the issue of a charge-sheet is for some one in authority totake down statements of persons involved in the matter and toexamine documents which have a bearing on the issue involved.It is only thereafter that a charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for thepurpose of finding out whether criminal proceedings are to berestored to the scope thereof must be limited to the examinationof persons who have knowledge of the affairs of the delinquentofficer and documents bearing on the same to find out whetherthere is prima facie evidence of guilt of the officer. Thereafterthe ordinary law of the land must take its course and further inquirybe proceeded with in terms of the Code of Criminal Procedure bylodging a first information report.
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21. In our view the enquiring officer pursued the investigationwith such zeal and vigour that he even enquired into and tookdown statements as persons who were supposed to have providedthe appellant with articles of food worth trifling sums of moneylong before the launching of the enquiry. The whole course ofinvestigation as disclosed in the affidavits is suggestive of somepre-determination of the guilt of the appellant. The enquiring officerwas a high-ranking police officer and it is surprising that simplybecause he was technically not exercising power under Chapter14 of the Criminal Procedure Code in that a formal first informationreport had not been lodged he overlooked or deliberatelyoverstepped the limits of investigation contained in the said chapter.He recorded self-incriminating statements of a number of personsand not only secured their signatures thereto obviously with the idea of pinning them down to those but went to the length ofproviding certificates of immunity to at least two of them from theevil effects of their own misdeeds as recorded. It was said thatthe certificates were given after the statements had been signed.It is difficult to believe that the statements could have been madebefore the grant of oral assurances regarding the issue of writtencertificates. There can be very little doubt that the persons whowere given such immunity had made the statements incriminatingthemselves and the appellant under inducement, threat or promiseas mentioned in Section 24 of the Indian Evidence Act.”
The statement in paragraph 17 certainly spoke of requirement ofa preliminary inquiry before a first information report is lodged against apublic servant.
60. Mr. Vikas Singh, learned Senior Advocate for the petitionerstrongly relied upon paragraph 120.6 of Lalita Kumari[5] to submit thatthe category of cases in which preliminary inquiry could possibly beinsisted upon were detailed by this Court but it was clearly stated thatsuch categorisation was only illustrative and not exhaustive of all conditionswhich may warrant preliminary enquiry. It was submitted that there wasstrong similarity between the medical professionals and journalists andthe latter were also entitled to certain safeguards and protection; thatjournalists would also discharge function of educating and altering thepublic in general and as such they, as a class would also require similarprotection.
On the other hand, Mr. S.V. Raju, learned Additional SolicitorGeneral relied upon two recent decisions in Union of India v. State ofMaharashtra and others[72] and in Social Action Forum For ManavAdhikar and another v. Union of India, Ministry of Law and Justiceand others[73]of this Court rendered by Benches of three Judges wheredirections similar to those issued in the case of Jacob Mathew[4] werenot accepted.
61. In Rajesh Sharma and others v. State of Uttar Pradeshand another[74] a Bench of two Judges of this Court (to which one of us,Lalit, J. was a party) issued following directions in cases where theoffence alleged was one punishable under Section 498-A of the IPC[3]:- 72 (2020) 4 SCC 761
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A“19. Thus, after careful consideration of the whole issue, weconsider it fit to give the following directions:
19.1 In every district one or more Family Welfare Committeesbe constituted by the District Legal Services Authorities preferablycomprising of three members. The constitution and working ofBsuch committees may be reviewed from time to time and at leastonce in a year by the District and Sessions Judge of the districtwho is also the Chairman of the District Legal Services Authority.
19.2. The Committees may be constituted out of paralegalvolunteers/social workers/retired persons/wives of workingCofficers/other citizens who may be found suitable and willing.
19.3. The Committee members will not be called as witnesses.
19.4. Every complaint under Section 498-A received by the policeor the Magistrate be referred to and looked into by suchCommittee. Such Committee may have interaction with the partiesDpersonally or by means of telephone or any other mode ofcommunication including electronic communication.
19.5. Report of such Committee be given to the authority bywhom the complaint is referred to it latest within one month fromthe date of receipt of complaint.
E 19.6. The Committee may give its brief report about the factualaspects and its opinion in the matter.
19.7. Till report of the Committee is received, no arrest shouldnormally be effected.
F19.8. The report may be then considered by the investigatingofficer or the Magistrate on its own merit.
19.9. Members of the Committee may be given such basicminimum training as may be considered necessary by the LegalServices Authority from time to time.
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19.10. The members of the Committee may be given suchhonorarium as may be considered viable.
19.11. It will be open to the District and Sessions Judge to utilisethe cost fund wherever considered necessary and proper.
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19.12. Complaints under Section 498-A and other connectedoffences may be investigated only by a designated investigatingofficer of the area. Such designations may be made within onemonth from today. Such designated officer may be required toundergo training for such duration (not less than one week) asmay be considered appropriate. The training may be completedwithin four months from today.
19.13 In cases where a settlement is reached, it will be open tothe District and Sessions Judge or any other senior judicial officernominated by him in the district to dispose of the proceedingsincluding closing of the criminal case if dispute primarily relates tomatrimonial discord.
19.14 If a bail application is filed with at least one clear day’snotice to the Public Prosecutor/complainant, the same may bedecided as far as possible on the same day. Recovery of disputeddowry items may not by itself be a ground for denial of bail ifmaintenance or other rights of wife/minor children can otherwisebe protected. Needless to say that in dealing with bail matters,individual roles, prima facie truth of the allegations, requirementof further arrest/custody and interest of justice must be carefullyweighed.
19.15. In respect of persons ordinarily residing out of Indiaimpounding of passports or issuance of red corner notice shouldnot be a routine.
19.16. It will be open to the District Judge or a designated seniorjudicial officer nominated by the District Judge to club all connectedcases between the parties arising out of matrimonial disputes sothat a holistic view is taken by the court to whom all such casesare entrusted.
19.17. Personal appearance of all family members and particularlyoutstation members may not be required and the trial court oughtto grant exemption from personal appearance or permit appearanceby videoconferencing without adversely affecting progress of thetrial.
19.18. These directions will not apply to the offences involvingtangible physical injuries or death.”
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ADirection No.19.4 had thus contemplated referral of everycomplaint under Section 498A IPC[3] to a Committee and it was onlyafter the report of the Committee, arrest if at all, could be effected. Interms of direction 19.12 it was directed that all complaints under Section499A IPC[3] be investigated only by a Designated Investigating Officerof the area. While issuing these directions, this Court had inter aliaBrelied upon the decision in Arnesh Kumar v. State of Bihar[75] as well asthe decision in Lalita Kumari[7].
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62. The correctness of the decision in Rajesh Sharma andothers[72] was questioned before a Bench of three Judges in Social ActionForum For Manav Adhikar and another v. Union of India, MinistryCof Law and Justice and others[76]. This Court in paragraph 33 of itsJudgment referred to paragraph 120.6 of the decision in Lalita Kumari[5]and thereafter made following observations:- “37. On a perusal of the aforesaid paragraphs, we find that theCourt has taken recourse to fair procedure and workability of aDprovision so that there will be no unfairness and unreasonablenessin implementation and for the said purpose, it has taken recourseto the path of interpretation. The core issue is whether the Courtin Rajesh Sharma[72] could, by the method of interpretation, haveissued such directions. On a perusal of the directions, we find thatEthe Court has directed constitution of the Family WelfareCommittees by the District Legal Services Authorities andprescribed the duties of the Committees. The prescription of dutiesof the Committees and further action therefor, as we find, arebeyond the Code and the same does not really flow from anyprovision of the Code. There can be no denial that there has to beFjust, fair and reasonable working of a provision. The legislature inits wisdom has made the offence under Section 498-A IPCcognizable and non-bailable. The fault lies with the investigatingagency which sometimes jumps into action without application ofmind. The directions issued in Arnesh Kumar[73] are in consonanceGwith the provisions contained in Section 41 CrPC and Section 41-A CrPC. Similarly, the guidelines stated in JoginderKumar v. State of U.P.[77], and D.K. Basu v. State of W.B.[78], arewithin the framework of the Code and the power of 75 (2014) 8 SCC 273H76 (2018) 10 SCC 443
superintendence of the authorities in the hierarchical system ofthe investigating agency. The purpose has been to see that theinvestigating agency does not abuse the power and arrest peopleat its whim and fancy.
38. In Rajesh Sharma[72], there is introduction of a third agencywhich has nothing to do with the Code and that apart, theCommittees have been empowered to suggest a report failingwhich no arrest can be made. The directions to settle a case afterit is registered is not a correct expression of law. A criminalproceeding which is not compoundable can be quashed by theHigh Court under Section 482 CrPC. When settlement takes place,then both the parties can file a petition under Section 482 CrPCand the High Court, considering the bona fide of the petition, mayquash the same. The power rests with the High Court. In thisregard, we may reproduce a passage from a three-Judge Benchin Gian Singh v. State of Punjab[79], In the said case, it has beenheld that:
“61. … Inherent power is of wide plenitude with no statutorylimitation but it has to be exercised in accord with the guidelineengrafted in such power viz.: (i) to secure the ends of justice,or (ii) to prevent abuse of the process of any court. In whatcases power to quash the criminal proceeding or complaint orFIR may be exercised where the offender and the victim havesettled their dispute would depend on the facts andcircumstances of each case and no category can be prescribed.However, before exercise of such power, the High Court musthave due regard to the nature and gravity of the crime. Heinousand serious offences of mental depravity or offences likemurder, rape, dacoity, etc. cannot be fittingly quashed eventhough the victim or victim’s family and the offender have settledthe dispute. Such offences are not private in nature and have aserious impact on society. Similarly, any compromise betweenthe victim and the offender in relation to the offences underspecial statutes like the Prevention of Corruption Act or theoffences committed by public servants while working in that 77 (1994) 4 SCC 260
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capacity, etc.; cannot provide for any basis for quashing criminalproceedings involving such offences. But the criminal caseshaving overwhelmingly and predominatingly civil flavour standon a different footing for the purposes of quashing, particularlythe offences arising from commercial, financial, mercantile,civil, partnership or such like transactions or the offences arisingout of matrimony relating to dowry, etc. or the family disputeswhere the wrong is basically private or personal in nature andthe parties have resolved their entire dispute. In this categoryof cases, the High Court may quash the criminal proceedingsif in its view, because of the compromise between the offenderand the victim, the possibility of conviction is remote and bleakand continuation of the criminal case would put the accused togreat oppression and prejudice and extreme injustice would becaused to him by not quashing the criminal case despite fulland complete settlement and compromise with the victim.”
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D39. Though Rajesh Sharma[72] takes note of Gian Singh[78], yet itseems to have applied it in a different manner. The seminal issueis whether these directions could have been issued by the processof interpretation. This Court, in furtherance of a fundamental right,has issued directions in the absence of law in certain cases,namely, Lakshmi Kant Pandey v. Union of India[80],EVishaka v. State of Rajasthan[81] and Common Cause v. Unionof India[82], and some others. In the obtaining factual matrix, thereare statutory provisions and judgments in the field and, therefore,the directions pertaining to constitution of a committee andconferment of power on the said committee are erroneous.FHowever, the directions pertaining to Red Corner Notice, clubbingof cases and postulating that recovery of disputed dowry itemsmay not by itself be a ground for denial of bail, would stand on adifferent footing. They are protective in nature and do not sounda discordant note with the Code. When an application for bail isentertained, proper conditions have to be imposed but recovery ofGdisputed dowry items may not by itself be a ground while rejectingan application for grant of bail under Section 498-A IPC. That 80 (1984) 2 SCC 244
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cannot be considered at that stage. Therefore, we do not findanything erroneous in Directions 19.14 and 19.15. So far asDirections 19.16 and 19.17 are concerned, an application has tobe filed either under Section 205 CrPC or Section 317 CrPCdepending upon the stage at which the exemption is sought.
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42. In the aforesaid analysis, while declaring the directionspertaining to Family Welfare Committee and its constitution bythe District Legal Services Authority and the power conferred onthe Committee is impermissible. Therefore, we think it appropriateto direct that the investigating officers be careful and be guidedby the principles stated in Joginder Kumar[76], D.K. Basu[77], LalitaKumari[5] and Arnesh Kumar[73]. It will also be appropriate to directthe Director General of Police of each State to ensure that theinvestigating officers who are in charge of investigation of casesof offences under Section 498-A IPC should be imparted rigoroustraining with regard to the principles stated by this Court relatingto arrest.
43. In view of the aforesaid premises, the directions contained inparas 19.1 to 19.11 as a whole are not in accord with the statutoryframework and the direction issued in para 19.12 shall be read inconjunction with the direction given hereinabove.
44. Direction 19.13 is modified to the extent that if a settlement isarrived at, the parties can approach the High Court under Section482 of the Code of Criminal Procedure and the High Court, keepingin view the law laid down in Gian Singh[78], shall dispose of thesame.
45. As far as Directions 19.14, 19.15, 19.16 and 19.17 areconcerned, they shall be governed by what we have stated inpara 39.
46. With the aforesaid modifications in the directions issuedin Rajesh Sharma[73], the writ petitions and criminal appeal standdisposed of. There shall be no order as to costs.”
It was thus held that directions 19.1 to 19.11 were not in conformitywith the statutory framework, while directions 19.12 to 19.17 were suitablymodified.
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A63. A Bench of two Judges of this Court (to which one of us i.e.Lalit, J. was a party) in its decision in Dr. Subhash Kashinath Mahajanv. State of Maharashtra and another[83]issued following directions inconnection with prosecutions instituted in relation to the offencespunishable under the provisions of the Scheduled Cases and ScheduledTribes (Prevention of Atrocities) Act, 1989; (the “Atrocities Act”, orB“the 1989 Act”, for short):
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79.1. Proceedings in the present case are clear abuse of processof court and are quashed.
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79.2. There is no absolute bar against grant of anticipatory bail incases under the Atrocities Act if no prima facie case is made outor where on judicial scrutiny the complaint is found to be primafacie mala fide. We approve the view taken and approach of theGujarat High Court in Pankaj D. Suthar v. State of Gujarat[84],Dand N.T. Desai v. State of Gujarat[85], and clarify the judgmentsof this Court in State of M.P. v. Ram Kishna Balothia[86],and Manju Devi v. Onkarjit Singh Ahluwalia[87]; 79.3. In view of acknowledged abuse of law of arrest in casesunder the Atrocities Act, arrest of a public servant can only beEafter approval of the appointing authority and of a non-publicservant after approval by the SSP which may be granted inappropriate cases if considered necessary for reasons recorded.Such reasons must be scrutinised by the Magistrate for permittingfurther detention.
F79.4. To avoid false implication of an innocent, a preliminaryenquiry may be conducted by the DSP concerned to find outwhether the allegations make out a case under the Atrocities Actand that the allegations are not frivolous or motivated.
79.5. Any violation of Directions 79.3 and 79.4 will be actionableby way of disciplinary action as well as contempt.G
79.6. Theabovedirectionsareprospective.”
83 (2018) 6 SCC 45484 (1992) 1 Guj LR 40585 (1997) 2 Guj LR 94286 (1995) 3 SCC 221 : 1995 SCC (Cri) 439H87 (2017) 13 SCC 439 : (2017) 4 SCC (Cri) 662
During the course of its decision, the Bench had noticed paragraph120.6 of the decision in Lalita Kumari[5] as well as the decision in P.Sirajuddin[69]. In terms of directions in paragraph 79.3 and 79.4, it wasdirected that an arrest of a public servant could be effected only afterapproval of the appointing authority and that of a non-public servantcould be effected only after approval by the Special Superintendent ofPolice; that the reasons for arrest could be scrutinised by the Magistratefor permitting further detention; and that a preliminary enquiry beconducted by the DSP concerned to find out whether the allegationsmaking out a case under the provisions of Atrocities Act were frivolousor motivated.
64. Union of India being aggrieved, filed Review Petitionquestioning the correctness of the directions issued in Dr. SubhashKashinath Mahajan[82]. A Bench of three Judges of this Court consideredthe matter in Union of India v. State of Maharashtra and others[70].Various decisions were noticed by this Court and it was concluded:
“In re : Sanction of the appointing authority
59. Concerning public servants, the provisions contained in Section197 CrPC provide protection by prohibiting cognizance of theoffence without the sanction of the appointing authority and theprovision cannot be applied at the stage of the arrest. That wouldrun against the spirit of Section 197 CrPC. Section 41 CrPCauthorises every police officer to carry out an arrest in case of acognizable offence and the very definition of a cognizable offencein terms of Section 2(c) CrPC is one for which police officer mayarrest without warrant.
60. In case any person apprehends that he may be arrested,harassed and implicated falsely, he can approach the High Courtfor quashing the FIR under Section 482 as observed in State ofOrissa v. Debendra Nath Padhi[88].
61. While issuing guidelines mentioned above approval ofappointing authority has been made imperative for the arrest of apublic servant under the provisions of the Act in case, he is anaccused of having committed an offence under the 1989 Act.Permission of the appointing authority to arrest a public servant isnot at all statutorily envisaged; it is encroaching on a field which is A
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reserved for the legislature. The direction amounts to a mandatehaving legislative colour which is a field not earmarked for thecourts.
62. The direction is discriminatory and would cause several legalcomplications. On what basis the appointing authority would grantpermission to arrest a public servant? When the investigation isnot complete, how can it determine whether public servant is tobe arrested or not? Whether it would be appropriate for appointingauthority to look into case diary in a case where its sanction forprosecution may not be required in an offence which has nothappened in the discharge of official duty. Approaching appointingauthority for approval of arrest of a public servant in every caseunder the 1989 Act is likely to consume sufficient time. Theappointing authority is not supposed to know the ground realitiesof the offence that has been committed, and arrest sometimesbecomes necessary forthwith to ensure further progress of theinvestigation itself. Often the investigation cannot be completed without the arrest. There may not be any material before theappointing authority for deciding the question of approval. To decidewhether a public servant should be arrested or not is not a functionof the appointing authority, it is wholly extra-statutory. In case theappointing authority holds that a public servant is not to be arrested and declines approval, what would happen, as there is no provisionfor grant of anticipatory bail. It would tantamount to taking awayfunctions of court. To decide whether an accused is entitled tobail under Section 438 in case no prima facie case is made out orunder Section 439 is the function of the Court. The direction of the appointing authority not to arrest may create conflict with theprovisions of the 1989 Act and is without statutory basis.
63. By the guidelines issued, the anomalous situation may cropup in several cases. In case the appointing authority forms a viewthat as there is no prima facie case the incumbent is not to bearrested, several complications may arise. For the arrest of anoffender, may be a public servant, it is not the provision of thegeneral law of CrPC that permission of the appointing authority isnecessary. No such statutory protection is provided to a publicservant in the matter of arrest under IPC and CrPC as such itwould be discriminatory to impose such rider in the cases under the 1989 Act. Only in the case of discharge of official duties,some offence appears to have been committed, in that case,sanction to prosecute may be required and not otherwise. In casethe act is outside the purview of the official discharge of duty, nosuch sanction is required.
64. The appointing authority cannot sit over an FIR in case ofcognizable, non-bailable offence and investigation made by thepolice officer; this function cannot be conferred upon the appointingauthority as it is not envisaged either in CrPC or the 1989 Act.Thus, this rider cannot be imposed in respect of the cases underthe 1989 Act, may be that provisions of the Act are sometimesmisused, exercise of power of approval of arrest by the appointingauthority is wholly impermissible, impractical besides it encroachesupon the field reserved for the legislature and is repugnant to theprovisions of general law as no such rider is envisaged under thegeneral law.
65. Assuming it is permissible to obtain the permission of theappointing authority to arrest the accused, would be furtherworsening the position of the members of the Scheduled Castesand Scheduled Tribes. If they are not to be given special protection,they are not to be further put in a disadvantageous position. Theimplementation of the condition may discourage and desist themeven to approach the police and would cast a shadow of doubt onall members of the Scheduled Castes and Scheduled Tribes whichcannot be said to be constitutionally envisaged. Other castes canmisuse the provisions of law; also, it cannot be said that misuse oflaw takes place by the provisions of the 1989 Act. In case thedirection is permitted to prevail, days are not far away when writpetition may have to be filed to direct the appointing authority toconsider whether the accused can be arrested or not and as tothe reasons recorded by the appointing authority to permit or denythe arrest. It is not the function of the appointing authority tointermeddle with a criminal investigation. If at the threshold,approval of the appointing authority is made necessary for arrest,the very purpose of the Act is likely to be frustrated. Variouscomplications may arise. Investigation cannot be completed withinthe specified time, nor trial can be completed as envisaged. The1989 Act delay would be adding to the further plight of thedowntrodden class.
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In re : Approval of arrest by the SSP in the case of a non-public servant
66. Inter alia for the reasons as mentioned earlier, we are of theconsidered opinion that requiring the approval of SSP before anarrest is not warranted in such a case as that would bediscriminatory and against the protective discrimination envisagedunder the Act. Apart from that, no such guidelines can prevail,which are legislative. When there is no provision for anticipatorybail, obviously arrest has to be made. Without doubting bona fidesof any officer, it cannot be left at the sweet discretion of theincumbent howsoever high. The approval would mean that it canalso be ordered that the person is not to be arrested then how theinvestigation can be completed when the arrest of an incumbent,is necessary, is not understandable. For an arrest of the accusedsuch a condition of approval of SSP could not have been made asine qua non, it may delay the matter in the cases under the 1989Act.
In re : Requiring the Magistrate to scrutinise the reasons forpermitting further detention
67. As per the guidelines issued by this Court, the public servantcan be arrested after approval by the appointing authority andthat of a non-public servant after the approval of SSP. The reasonsso recorded have to be considered by the Magistrate for permittingfurther detention. In case of approval has not been granted, thisexercise has not been undertaken. When the offence is registeredunder the 1989 Act, the law should take its course no additionalfetters are called for on arrest whether in case of a public servantor non-public servant. Even otherwise, as we have not approvedthe approval of arrest by appointing authority/SSP, the direction torecord reasons and scrutiny by the Magistrate consequently standsnullified.
68. The direction has also been issued that the DSP should conducta preliminary inquiry to find out whether the allegations make outa case under the Atrocities Act, and that the allegations are notfrivolous or motivated. In case a cognizable offence is made out,the FIR has to be outrightly registered, and no preliminary inquiry
has to be made as held in Lalita Kumari[5] by a Constitution Bench.There is no such provision in the Code of Criminal Procedure forpreliminary inquiry or under the SC/ST Act, as such direction isimpermissible. Moreover, it is ordered to be conducted by theperson of the rank of DSP. The number of DSP as per stand ofthe Union of India required for such an exercise of preliminaryinquiry is not available. The direction would mean that even if acomplaint made out a cognizable offence, an FIR would not beregistered until the preliminary inquiry is held. In case a preliminaryinquiry concludes that allegations are false or motivated, FIR isnot to be registered, in such a case how a final report has to befiled in the Court. Direction 79.4 cannot survive for the otherreasons as it puts the members of the Scheduled Castes andScheduled Tribes in a disadvantageous position in the matter ofprocedure vis-à-vis to the complaints lodged by members of uppercaste, for later no such preliminary investigation is necessary, inthat view of the matter it should not be necessary to hold preliminaryinquiry for registering an offence under the Atrocities Act, 1989.
70. We do not doubt that directions encroach upon the fieldreserved for the legislature and against the concept of protectivediscrimination in favour of downtrodden classes under Article 15(4)of the Constitution and also impermissible within the parameterslaid down by this Court for exercise of powers under Article 142of the Constitution of India. Resultantly, we are of the consideredopinion that Directions 79.3 and 79.4 issued by this Court deserveto be and are hereby recalled and consequently we hold thatDirection 79.5, also vanishes. The review petitions are allowed tothe extent mentioned above.”
Paragraph 68 of this decision clearly held that the direction tohold a preliminary inquiry issued in Dr. Subhash Kashinath Mahajan[82]was not consistent with the statutory framework while it was held inparagraph 70 that the directions issued by the two Judge Bench amountedto encroachment upon the field reserved for the legislature.
65. The submissions regarding the second prayer in the Writ Petitionare required to be considered in the backdrop of these decisions.
66. In Jacob Mathew[4], the guidelines were issued after noticingSection 88 of the IPC[3] falling in Chapter titled “General Exceptions” as A
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Awell as illustrations below Sections 88, 92, and 93 of the IPC[3]. Thedirection, “a private complaint may not be entertained unless thecomplainant has produced prima facie evidence before the Court in theform of a credible opinion given by another competent doctor to supportthe charge of rashness and negligence on the part of the accused doctor”was founded on reasons including the status of a medical professionalBacknowledged by Section 88 and illustrations as stated above as well asthe fact that the investigating officers and the private complainant wouldnot be supposed to be having knowledge about medical science so as todetermine whether the act of the accused professional amounted to arash and negligent act within the domain of criminal law. It is true thatCthe decision in P. Sirajuddin[69] did observe that there ought to be apreliminary inquiry before a first information report is registered againsta public servant of any status. But today, with the establishment ofVigilance Cells in every Governmental Department or organisation, thepreliminary inquiries are not strictly traceable to the direction issued by
this Court. As a matter of fact, the accepted norm – be it in the form ofDCBI Manual or like instruments is to insist on a preliminary inquiry. Onecan also say that the protection to a public servant is the underlyingprinciple under certain provisions like Section 197 of the Code and assuch there is some foundation in statutory provisions.
On the other hand, directions (19.1 to 19.11) issued in RajeshESharma[73], were not found to be in accord with the statutory frameworkand as such did not meet with the approval of the decision of the largerbench of this Court. Similarly, the directions issued in Dr. SubhashKashinath Mahajan[82] regarding holding of a preliminary inquiry werenot found consistent with the statutory framework. The second prayerFmade in the Writ Petition is asking for the constitution of the Committeecompletely outside the scope of the statutory framework. Similar suchexercise of directing constitution of a Committee was found inconsistentwith the statutory framework in the decisions discussed above. We areconscious that the directions issued in Jacob Mathew[4] had received approval by a Constitution Bench in Lalita Kumari[5], but those guidelinesGissued in Jacob Mathew[4] stand on parameter which are completelydistinguishable from the subsequent decisions of three Judge Bench ofthis Court in Union of India vs. State of Maharashtra and Others[70]and in Social Action Forum for manav Adhikar and Another vs. Unionof India, Ministry of Law and Justice and Others[71]. Any relief grantedH
in terms of second prayer would certainly, in our view, amount toencroachment upon the field reserved for the legislature. We have,therefore, no hesitation in rejecting the prayer and dismissing the WritPetition to that extent.
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67. It must however be clarified that every Journalist will be entitledto protection in terms of Kedar Nath Singh[2], as every prosecution underBSections 124A and 505 of the IPC[3] must be in strict conformity with thescope and ambit of said Sections as explained in, and completely in tunewith the law laid down in Kedar Nath Singh[2].
68. In conclusion:
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i.We quash FIR No.0053 dated 6.5.2020, registered atPolice Station Kumarsain, Distt. Shimla, HimachalPradesh, against the petitioner;
ii.but reject the prayer that no FIR be registered against aperson belonging to media with at least 10 years ofstanding unless cleared by the Committee as suggested.D
69. Writ Petition is allowed to the aforesaid extent.
Nidhi Jain
Writ petition partly allowed.
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