Supreme Court of India

Kedar Nath Singh vs State Of Bihar on 20 January, 1962

Equivalent citations: 1962 AIR 955, 1962 SCR Supl. (2) 769
Author: B P Sinha
Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Sarkar, A.K., Ayyangar, N. Rajagopala, Mudholkar, J.R.

PETITIONER:
KEDAR NATH SINGH

Vs.

RESPONDENT:
STATE OF BIHAR

DATE OF JUDGMENT:
20/01/1962

BENCH:
SINHA, BHUVNESHWAR P.(CJ)
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
DAS, S.K.
SARKAR, A.K.
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.

CITATION:
1962 AIR 955 1962 SCR Supl. (2) 769
CITATOR INFO :
R 1963 SC 996 (5)
R 1964 SC1230 (9)
RF 1967 SC1877 (22)
D 1970 SC2015 (12)
RF 1973 SC1091 (6)
D 1980 SC 354 (5)
RF 1980 SC1042 (11)
E 1991 SC 101 (28,69,227,278)

ACT:
Sedition-Content of Statute panalising
sedition and statements conducing to public
mischief-Constitutionality of-Whether infringes
freedom of speech-Indian Penal Code, 1860 (Act XLV
of 1860), ss. 124A, 505-Constitution of India,
Arts. (19)(1)(a), 19(2).

HEADNOTE:
Section 124A of the Indian Penal Code which
makes sedition an offence is constitutionally
valid. Though the section imposes restrictions on
the fundamental freedom of
770
speech and expression, the restrictions are in the
interest of public order and are within the ambit
of permissible legislative interference with the
fundamental right. There is a conflict on the
question of the ambit of s. 124A between decision
of the federal Court and of the Privy Council. The
Federal Court has held that words, deeds or
writings constituted an offence under s. 124A only
when they had the intention or tendency to disturb
public tranquility. to create public disturbance
or to promote disorder, whilst the Privy Council
has taken the view that it was not an essential
ingredient of the offence of sedition under s.
124A that the words etc, should be intended to or
be likely to incite public disorder. Either view
can be taken and supported on good reasons. If the
view taken by the Federal Court was accepted s.
124A would be use constitutional but if the view
of the Privy Council was accepted it would be
unconstitutional. It is well settled that if
certain provisions of law construed in one way
would make them consistent with the constitution,
and another interpretation would render them
unconstitutional, the Court would lean in favour
of the former construction. Keeping in mind the
reasons for the introduction of s. 124A and the
history of sedition the section must be so
construed as to limit its application to acts
involving intention or tendency to create
disorder, or disturbance of law and order; or
incitement to violence.
 Niharendu Dutt Majumdar v. King Emperor,
(1942) F.C.R. 38, followed.
King Emperor v. Sadashiv Narayan Bhalerao,
(1947) L.R. 74 I.A. 89 and Wallace Johnson v. The
King [1940] A. C. 231 not followed.
Romesh Thapar v. The State of Madras. (1050)
S.C.R. 594. Brij Bhushan v. The State of Delhi.
(1950) S.C. R. 605 and Ramji Lal Modi v. The State
U.P. (1957) S. C. R. 860, referred to.
The Bengal Immunity Company Limited v. The
State of Bihar, (1955) 2 S. C. R. 603 and R. M. D.
Chamarbaugwala v. The Union of India, [1957] S.
C. R. 930 applied.
Each one of the constituent elements of the
offence of making, publishing or circulating
statements conducing to public mischief,
punishable under s. 505 of the Indian Penal Code,
had reference to, and a direct effect on, the
security of the State or public order. Hence the
provisions of s. 505 were clearly saved by Art.
19(2).
^

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION:- Criminal Appeal No. 169 of 1957.

Appeal by special leave from the judgment and order dated the April 9, 1956, of the Patna High Court in Cr. A. No. 445 of 1955.

WITH Criminal Appeals Nos. 124 to 126 of 1958. Appeals from the judgment and order dated May 16, 1958, of the Allahabad High Court
in Criminal Appeals Nos. 76 and 108 of 1955 and Cr. M. Writ No. 2371 of 1955.

Janardan Sharma for appellant in Criminal Appeal No. 169 of 1957:-The appellant has been convicted under ss. 124A and 505 Indian Penal
Code. Both these sections are ultra vires as they contravene the provisions of Art. 19(1)(a) of the Constitution. A speech may disturb public
order or it may not, but both are made punishable under Section 124A. The section hits speeches of both varieties permissible speeches and
impermissible speeches. The explanation to section 124A do not affect the interpretation of the main section. In a democratic set up a
citizen is entitled to criticise the Government with a view to change it. Two questions arises in the cases, namely (i) does s. 124A enact a
law which is in the interest of public order and (ii) does this section impose reasonable restrictions in the interest of public order. The
decision in I. L. R. (1958) 2 All. 84 which has declared s.124A to be ultra vires takes the correct law.

R. C. Prasad, for respondent in Criminal Appeal No. 169 of 1957:-Referred to the decision in Ramji Lal Modi v. State of U. P. [1957]
S.C.R.860. Stated that he would adopt the submissions to be made by Shri C. B. Agarwala.

C. B. Agarwala for the appellant in Criminal Appeals Nos. 124 to 126 of 1958:-The correct meaning of the provisions of s. 124A in the
context of the present set up and the Constitution is that given by the Federal Court in Niharendu Dutt's case, 1942 F. C. R. 38 and not the
meaning given to them by the Privy Council in Bhalerao's case 74 I. A. 89. Intepretation by Courts of words of statutes to a particular set of
facts has been changing with the change in the social and political structure of society and the opinion of its reasonable members.  Section
124A is in a chapter which deals with offencss against the State. Therefore, it is not a case of libel against any offioer but of an offence
against the State. Words in the English law relating to sedition are the same as in s. 124A vide Stephen's Commentary on the law of
England, Vol. 4, page 141, Halsbury's Law of England 3rd Edition, Vol. 10, page 169 Jowitt's Dictionary of English law, page 1605,
Stephen's History of Criminal Law, Vol. 2, page 298 and 301 Chapter 24. Under English Law a tendency to create tumult or disorder is an
essential element of sedition. Russel on Crimes, Vol. 1, p. 229, R. v. Collins, 173 E. R. 910. R. v. Sullivan, 11 Cox. 44.  Section 124A has
been taken from the English Law (see 22 Bom. 152). Section 124A must, therefore, be interpreted in the same manner as sedition is
interpreted in England and it must be held that a tendency to disturb public order is an essential element of the offence under  s. 124A.
Articles 133 and 133A of the Canadian Criminal Code which deal with sedition have been given the same interpretation, 1951, canadian S.
C. R. 265. The view taken in Tilak's case 22 Bom. 1112, in Bhalerao's case 74 I.A. 89 and in Wallice Johnsons case[1940] A. C. 231 that
incitement to violence or a tendency to disturb public order was not a necessary ingredient of  s. 124A, is not the correct view. 1942 F. C.
R.38 takes the correct view and lays down that the tendency to disturb public order is a necessary ingredient of the offence under s. 124A.
Devi Saran's case 32 Pat. 1124 also takes the same view.

There are two interpretations of s. 124A before the Court, one taken by the Federal Court and the other taken by the Privy Council. This
Court should accept the interpretation given by the section Court, as that interpretation would make the section Constitutional. Even if the
interpretation put by the Privy Council be accepted as correct one, section 124A will still be valid. The section certainly contemplates cases
where the speech is likely to disturb public order and as such the section in the interest of public order as contemplated in Art. 19(2) and the
mere fact that some cases in which the public order is not likely to be disturbed are also included therein, cannot invalidate the section. This
court took a similar view in Ramjilal Modi's case [1957] S. C. R. 860 and in Virendra's case [1958] S. C. R. 308, the decision Lohia's case
[1960] 2 S. C. R. 821 does not affect this case, as in that case it was found that that provisions curtailing freedom of speech were not in the
interest of public order as the connection between the provisions and disturbance of public order as too remove. Even if the section be held
according to the Privy Council view to include which threaten public order and those which the section can be held valid with respect s
where public order is threatened as the two of case are severable. [1957] S. C. R. 930, [1941] F. C. 72 [1951] S. C. R. 682, [1953] 1059 and
65 L. Ed, 1139.

P. Verma for the Attorney-General of Article 374(2) of the Constitution perversion of the Federal Court shall have the rect as the decision
of the Supreme Court. Decision of the Federal Court in 1942 F.C.R. 38 be deemed to be a decision of this Court and should be held binding.
A tendency to disturb public order is inherent in s. 124A itself.

Gopal Behari for respondent in Criminal Appeal No. 124 of 1958:-The interpretataion of s. 124A bythe Privy Council has been accepted by
the High Court. Even in English Law sedition does not necessarily include an intention to disturb public order, 79 C. L. R. 101.
Explanations (2) and (3) would be redundant if section 124A is interpreted to incorporate the English view of sedition. The Allahabad High
Court as well as other High Courts have given the same interpretation of s. 124A as the Privy Council has. See 1941 All. 156, 1930 Lah.
309, 56 Cal. 1085 and 10 Luck. 712. The decision in Lohia's case also [1960] 2 S.C.R. 821 governs the present case also section
124A punishes such speeches also as have no tendency to disturb public order and contravenes Art. 19(1)(a). It is not saved by Art. 19(2) as
placing of restriction on such speeches is not in the interest of public order. It is not open to the Court to rewrite the section by removing
from its purview such speeches as have no tendency to disturb public order and to confine it to such speeches as have a tendency to disturb
public order. The whole section must fail; it cannot be dissected.

C. B. Agarwala in reply:-In English law is a necessary ingredient of seditious intention it must have a tendency to cause tumult or di R. v.
Alred, 22 Cox. C. C. 1, R. v. Burdott, 101, 803; R. v. O'Brien, 6 St. Tr. (N. S.) 571. The Council has only said that actual incite violence
was not a necessary ingredient of It has not gone further and has not laid tendency to disturb public order was not a ingredient of  s. 124A.
Even though public is not an ingredient of the offeence under there is a tendency to disturb public speeches or writings which bring or atte
bring into hatered or contempt or excite or at to excite dissatisfaction towards the Government established by law.

1962. January 20. The Judgment of the court was delivered by SINHA, C. J.-In these appeals the main question in controversy is
whether ss. 124A and 505 of the Indian Penal Code have become void in view of the provisions of Art. 19(1)(a) of the Constitution. The
constitutionality of the provisions of s. 124A, which was mainly canvassed before us, is common to all the appeals, the facts of which may
shortly be stated separately.

In Criminal Appeal 169 of 1957, the appellant is one Kedar nath Singh, who was prosecuted before a Magistrate, 1st Class, at Begusarai, in
the district of Monghyr, in Bihar. He framed the following charges against the accused person, which are set out in extenso in order to bring
out the gravamen of the charge against him.

"First.-That you on 26th day of May, 1953 at village Barauni, P. S. Taghra (Monghyr) by speaking the words, to wit, (a) To-day the dogs of
the C. I. D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from
this country and elected these Congress goondas to the gaddi and seated them on it. To-day these Congress goondas are sitting on the gaddi
due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official
dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and
imposing various kinds of taxes on the people to-day. The blood of our brothers- mazdoors and Kishanas is being sucked. The capitalists
and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the
peoples court along with these Congress goondas.
(b) On the strength of the organisation and unity of Kisans and mazdoors the Forward Communists Party will expose the black deeds of the
Congress goondas, who are just like the Britishers. Only the colour of the body has changed. They have to-day established a rule of lathis
and bullets in the country. The Britishers had to go away from this land. They had aeroplanes, guns, bombs and other weapons with them.
(c) The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and
does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the
Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be
established a Government of the poor and the downtrodden people of India.
(d) It will be a mistake to expect anything from the Congress relers. They (Congress rulers) have set up V. Bhave in the midst of the people
by causing him wear a langoti in order to divert the people's attention from their mistakes. To-day Vinova is playing a drama on the stage of
Indian politics. Confusion is being created among the people. I want to tell Vinova and advice his agents, "you should understand it the
people cannot be deceived by this illusion and fraud of Vinova". I shall vinova not to become a puppet in the of the Congress men. These
persons, understand the Yojna-of Vinova, realise that Vinova is an agent to the Congress Government.
(e) I tell you that this Congress Government will do no good to you.
(f) I want to tell the last word even to the Congress Tyrants, "you play with the people and ruin them by entangling them in the mesh of
bribery, black-marketing and corruption. To-day the children of the poor are hankering for food and you Congress men are assuming the
attitude of Nawabs sitting on the chairs..."
Brought or attempted to bring into hatred or contempt or excited or attempted to excite disaffection towards the Government established by
law in the Indian Union and thereby committed an offence punishable under section 124A of the Indian Penal Code and within my
cognizance.
Secondly.-That you on the 26th day of May, 1953 at village Barauni, P. S. Tegra (Monghyr) made the statement, to wit, (a) To- day the
dogs of the C. I. D. are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the
Britishers from this country, And elected these Congress Goondas to the gaddi and seated them on it. To-day these Congress Goondas are
sitting on the gaddi due to the mistake of the people. When we have driven out the Britishers, we shall strike and turn out these Congress
Goondas. These Congress Goondas are banking upon the American dollars and imposing various kinds of taxes on the people to-day. The
blood of our brothers Mazdoors and Kisans is being sucked. The capitalists and the zamindars of this country help these Congress Goondas.
These zamindars and capitalists will also have to be brought before the people's Court along with these Congress Goondas.
(b) On the strength of organisation and unity of kisans and mazdoors the Forward Communist Party will expose the black-deeds of the
Congress Goondas, who are just like the Britishers. Only the colour of the body has changed. They have, to-day, established a rule of lathis
and bullets in the country. The Britishers had to go away from this land. They had aeroplanes, guns, bombs, and other reasons with them.
(c) The Forward Communist party does not believe in the doctrine of votes itself. The party had always been believing in revolution and
does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the
Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes, and on their ashes will be
established a Government of the poor and the downtrodden people of India.
(d) It will be a mistake to expect anything from the Congress rulers. They (Congress rulers) have set up V. Bhave in the midst of the people
by causing him wear a langoti in order to divert the attention of the people from their mistakes. To-day Vinoba is playing a drama on the
stage of Indian politics. Confusion is being created among the people. I want to tell Vinova and advise his agents, "You should understand it
that the people cannot be deceived by this Yojna, illusion and fraud of Vinova. I shall advice Vinova not to become a puppet in the hands of
the Congress men. Those persons who understand the Yojna of Vinova, realise that Vinova is an agent of Congress Government.
(e) I tell you that no good will be done to you by this Congress Government.
(f) I want to tell the last word even to Congress tyrants "you play with the people and ruin them by entangling them in the mesh of bribery,
black-marketing and corruption. To-day the children of the poor are hankering for food and you (Congress men) are assuming the attitude
of Nawabs sitting on the chairs".......
With intent to cause or which was likely to cause fear or alarm to the public whereby any persons might be induce to commit an offence
against the State of Bihar and against the public tranquility, and thereby committed an offence punishable under section 505(b) of the Indian
Penal Code and within my cognizance.

After recording a substantial volume of oral evidence, the learned Trial Magistrate convicted the accused person both under  ss.
124A and 505(b) of the Indian Penal Code, and sentenced him to under go rigorous imprisonment for one year. No separate sentence was
passed in respect of the conviction under the latter section.

The convicted persons preferred an appeal to the High Court of Judicature at Patna, which was heard by the late Mr. Justice Naqui Imam,
sitting singly. By this judgment and order dated April 9, 1956, he upheld the convictions and the sentence and dismissed the appeal. In the
course of his judgment, the learned Judge observed that the Judge observed of the charge against the appellant was nothing but a vilification
of the Government; that it was full of incitements to revolution and that the speech taken as a whole was certainly seditionus. It is not a
speech critising any of is measures. He held that the offences both under ss. 124A 505(b) of the Indian Penal Code had been made out.

The convicted person moved this Court and obtained special leave to appeal. It will be noticed that the constitutionality of the provisions of
the sections under which the appellant was convicted had not been convassed before the High Court. But in the petition for special leave, to
this Court, the ground was taken that ss. 124A and 505 of the Indian Penal Code "are inconsistent with Art. 19(1) (a) of the Constitution".
The appeal was heard in this Court, in the first instance, by a Division Bench on May 5, 1959. The Bench, finding that the learned counsel
vco the appellant had raised the constitutional issue as to the validity of ss. 124A and 505 of the Indian Penal Code, directed that the appeal
be placed for hearing by a Constitution Bench. The case was then placed before a Constitution Bench, on November 4, 1960, when that
Bench directed notice to issue to the Attorney General of India under r. 1, O.41 of the Supreme Court Rules. The matter was once again
placed before a constitution Bench on February 9, 1961, when it was adjourned for two months in order to enable the State Governments
concerned with this appeal, as also with the connected Criminal Appeals Nos. 124-126 of 1958 (in which the Government of Uttar Pradesh
is the appellant) to make up their minds in respect of the proseocuions, as also in view of the report that the Law Commission was
considering the question of amending the law of sedition in view of the new set-up. As the States concerned have instructed their counsel to
press the appeals, the matter has finally come before us.

In Criminal Appeals 124-126 of 1958 the State of Uttar Pradesh is the appellant, though the respondents are different. In Criminal appeal
124 of 1958, the accused person is one Mohd, Ishaq Ihahi. He was prosecuted for having delivered a speech at Aligarh as Chairman of the
Reception Committee of the All India Muslim Convention on October 30, 1953. His speech on that occasion, was thought to be seditious.
After the necessary sanction, the Magistrate held an enquiry, and finding a prima facie case made out against the accused, committed him to
the Court of Session. The learned Sessions Judge, by his Judgment dated January 8, 1955, acquitted him of the charge under  s. 153A, but
convicted him of the other charge under s. 124A, of the Indian Penal Code, and sentenced him to rigorous imprisonment for one year. The
convicted person preferred an appeal to the High Court. In the High Court the constitutionality of s. 124A of the Indian Penal Code was
challenged.

In Criminal Appeal No. 125 of 1958, the facts are that on May 29, 1954, a meeting of the Bolshovik Party was organised in village
Hanumanganj, in the District of Basti, in Uttar Pradesh. On that occasion, the respondent Rama Nand was found to have delivered an
objectionable speech in so far as he advocated the use of violence for overthrowing the Government established by law. After the sanction
of the Government to the prosecution had been obtained, the learned Magistrate held an enquiry and ultimately committed him to take his
trial before the Court of Sessions. In due course, the learned Sessions Judge convicted the accused person under s. 124A  of the Indian Penal
Code and sentenced him to rigorous imprisonment for three years. He held that the accused person had committed the offence by inciting
the audience to an open violent rebellion against the Government established by law, by the use of arms. Against the aforesaid order of
conviction and sentence, the accused person preferred an appeal to the High Court of Allahabad.

In Criminal Appeal 126 of 1958, the respondent is one Parasnath Tripathi. He is alleged to have delivered a speech in village Mansapur,
P.S. Akbarpur, in the district of Faizabad, on September 26, 1955, in which he is said to have  exhorted the audience to organise a volunteer
army and resist the Government and its servants by violent means. He is also said to have excited the audience with intent to create feelings
of hatred and enmity against the Government. When he was placed on trial for an offence under  s. 124A of the Indian Penal Code, the
accused person applied for a writ of Habeas Corpus in the High Court of Judicature at. Allahabad on the ground that his detention was
illegal inasmuch as the provisions s. 124A of the Indian Penal Code were void as being in contravention of his fundamental rights of free
speech and expression under Art. 19(1)(a) of the Constitution. This matter, along with the appeals which have given rise to appeals Nos.
124 and 125, as aforesaid, were ultimately placed before a Full Bench, consisting of Desai, Gurtu and Beg, JJ. The learned judges, in
separate but concurring judgments, took the view that s. 124A of the Indian Penal Code was ultra viresArt. 19(1)(a) of the Constitution. In
that view of the matter, they acquitted the accussed persons, convicted at aforesaid in the two appeals Nos. 124 and 125, and granted the
writ petition of the accused in criminal Appeal No. 126. In all these cases the High Court granted the necessary certificate that the case
involved important questions of law relating to the interpretation of the Constitution. That is how these appeals are before by on a certificate
of fitness granted by the High Court.

Shri C. B. Agarwala, who appeared on behalf of the State of Uttar Pradesh in support of the appeals against the orders of acquittal passed by
the High Court, contended that the judgment of the High Court (bow reported in Ram Nandan v. State (1) in which it was laid down by the
Full Bench that s. 124A of the Indian Penal Code was ultra Art. 19(1)(a) of the Constitution and, therefore, void for the reason that it was
not in the interest of public order and that the restrictions imposed there by were not reasonable restrictions on the freedom of speech and
expression, was erroneous. He further contended that the section impugned came within the saving cl. (2) of  Art. 19, and that the reasons
given by the High Court to the contrary were erroneous. He relied upon the observations of the Federal Court in Niharendu Dutt Majumdar
v. The King Emperor (1). He also relied on Stephen's Commentaries on the Laws of England, Volume IV, 21st Edition, page 141, and the
Statement of the Law in Halsbury's Laws of England, 3rd Edition, volume 10, page 569, and the cases referred to in those volumes. Mr.
Gopal Behari, appearing on behalf of the respondents in the Allahabad cases has entirely relied upon the full Bench decision of the
Allahabad High Court in his favour. Shri Sharma appearing on behalf of the appellant in the appeal from the Patna High Court has similarly
relied upon the decision aforesaid of the Allahabad High Court.

Before dealing with the contentions raised on behalf of the parties, it is convenient to set out the history of the law, the amendments it has
undergone and the interpretations placed upon the provisions of s. 124A by the Courts in India, and by their Lordships of the judicial
Committee of the Privy Council. The section corresponding to s. 124A was originally s. 113 of Macaulay's Draft Penal Code of 1837-39,
but the section was omitted from the Indian Penal Code as it was enacted in 1860. The reason for the omission from the Code is enacted is
not clear, but perhaps the legislative body did not feel sure above its authority to enact such a provision in  the Code. Be that as it may, s.
124A was not placed on the Statute Book until 1870, by Act XXVII of 1870. There was a considerable amount of discussion at the time the
amendment was introduced by Sir James, Stephen, but what he said while introducing the bill in the legislature may not be relevant for our
present purposes. The section as then enacted ran as follows:

"124A. Exciting Disaffection-

Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to
excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for
any term, to which, fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or
with fine.
Explanation-Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful
authority of the Government and to support the lawful authority of the Government against unlawful attempts to subvert or resist that
authority, is not disaffection. Therefore, the making of comments on the measures of the Government, with the intention of exciting only
this species of disapprobation, is not an offence within this clause."

The first case in Indian that arose under the section is what is known as the Bangobasi case (Queen-Empress v. Jagendra Chunder Bose (1))
which was tried by a Jury before Sir Comer Petheram, C J. while charging the jury, the learned Chief Justice explained the law to the jury in
these terms:

"Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite
possible to disapprove of a men's sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly
necessary to tell you that the contention of Mr. Jackson cannot be sustained. If a person uses either spoken or written words calculated to
create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to
subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his
bearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section though no
disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the
section that the words used are calculated to excite feelings of ill will against the Government and to hold it up to the hatred and contempt
of the people, and that they were used with the intention to create such feeling."

The next case is the celebrated case of Queen-Empress v. Balqanqaddhar Tilak (1) which came before the Bobay High Court. The case was
tried by a jury before Strachey, J. The learned judge, in the course of his charge to the jury, explain the law to them in these terms:

"The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government. What are "feelings
of disaffection" ? I agree with Sir Comer Petheram in the Bangobasi case that disaffection means simply the absence of affection. It means
hatred, enmity dislike, hostility, contempt and every from of ill-will to the Government. "Disloyalty"
is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the
disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the
Government. You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the
question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the
next place, it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question. It is true
that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government. If you are
satisfied that he has done so, you will, of course, find him guilty. But if you should hold that charge is not made out, and that no one is
proved to have been excited to entertain feelings of disaffection to the Government by reading these articles, still that alone would not
justify you in acquitting the prisoners. For each of them is charged not only with exciting feelings of disaffection, but also with attempting
to excite such feelings. You will observe that section places on absolutely the same footing the successful exciting of feelings of
disaffection and the unsuccessful attempt to excite them, so that, if you find that either of the prisoners has tried to excite such feeling in
others, you must convict him even if there is nothing to show that he succeeded. Again, it is important that you should fully realise another
point. The offence consists in exciting or attempting to excite in others certain bad feeling towards the Government. It is not the exciting or
attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused
by there articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless
fall within section 124A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to
excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the
Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can
be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my
opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or
attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible
resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the
section, and to a misapplication of the explanation beyond its true scope."

The long quotation has become necessary in view of what followed later, namely, that this statement of the law by the learned judge came
in for a great deal of comment and judicial notice. We have omitted the charge to the jury relating to the explanation to s. 124A because that
explanation has now yielded place to three separate explanations in view of judicial opinions expressed later. The jury, by a majority of six
to three, found Shri Balgangadhar Tilak guilty. Subsequently, he, on conviction, applied under cl. 41 of the Letters Patent for leave to
appeal to the Privy Council. The application was heard by a Full Bench consisting of Farran, C. J., Candy and Strachey, JJ. It was contended
before the High Court at the leave stage, inter alia, that the sanction given by the Government was not sufficient in law in that it had 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 is only relevant point before
us; the Full Bench expressed itself to the following effect:
"The other ground upon which Mr. Russell has asked as to certify that this is a fit case to be sent to Her Majesty in Council, is that there has
been a misdirection, and he based his argument on one major and two minor grounds. The major ground was that the section cannot be said
to have been contravened unless there is a direct incitement to stir up disorder or rebellion. That appears to us to be going much beyond the
words of the section, and we need not say more upon that ground. The first of the minor points is that Mr. Justice Strachey in summing up
the case to the jury stated that disaffection meant the absence of affection". But although if that phrase had stood alone it might have misled
the jury, yet taken in connection with the context we think it is impossible that the jury could have been misled by it. That expression was
used in connection with the law as led down by Sir Comer Petheram, in Calcutta in the Bangobashi case. There the Chief Justice instead 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 case there can be no doubt that the summing up would have been absolutely correct in this particular. But
taken in connection with the context it is clear that by the words "absence of affection" the learned Judge did not mean the negation of
affection but some active sentiment on the other side. Therefore on that point we consider that we cannot certify that this is a fit case for
appeal." In this connection it must be remembered that it is not alleged that there has been a miscarriage of Justice."

After making those observations, the Full Bench refused the application for leave. the case was then taken to Her Majesty in council, by
way of application for special leave to appeal to the Judicial Committee. Before their Lordships of the Privy Council, Asquith, Q. C.,
assisted by counsel of great experience and eminence like Mayne, W. C. Bonnerjee and others, contended that there was a misdirection as to
the meaning of section 124A of the Penal Code in that the offence had been defined in terms to wide to the effect that "disaffection" meant
simply "absence of affection" and that it comprehended every possible form of bad feeling to the Government. In this connection reference
was made to the observations of Petheram, C.J. in Queen-Empress v. Jogender Bose(1). It was also contended that the appellant's
comments had not exceeded what in England would be considered within the functions of a Public journalist, and that the misdirection
complained of was of the greatest importance not merely to the affected person but to the whole of the Indian Press and also to all her
Majesty's subjects; and that it injuriously affected the liberty of the press and the right to free speech in public meetings. But in spite of the
strong appeal made on behalf of the petitioner for special leave, the Lord Chancellor, delivering the opinion of the Judicial Committee,
while dismissing the application, observed that taking a view of the whole of the summing up they did not see any reason to dissent from it,
and that keeping in view the rules which Their Lordships observed in the matter of granting leave to appeal in criminal cases, they did not
think that the case raised questions which deserve further consideration by the Privy Council. (vide Gangadhar Tilak v. Queen Empress) (1).

Before noticing the further changes in the Statute, it is necessary to refer to the Full Bench decision of the Allahabad High Court in  Queen
Empress v. Amba Prasad (2). In that case, Edge, C.J., who delivered the judgment of the Court, made copious quotations from the
judgments of the Calcutta and the Bombay High Courts in the cases above referred to. While generally adopting the reasons for the
decisions in the aforesaid two cases, the learned Chief Justice observed that a man may be guilty of the offence defined in s. 124A of
attempting to excite feelings of disaffection against the Government established by law in British India, although in a particular article or
speech he may insist upon the desirability or expediency of obeying and supporting the Government. He also made reference to the decision
of the Bombay High Court in the Satara (3) case. In that case a Full Bench, consisting of Farran, C.J., and Parsons and Ranade, JJ,  had laid
it down that the word "disaffection" in the section is used in a special sense as meaning political alienation or discontent or disloyalty to the
Government or existing authority. They also held that the meaning of word "disaffection" in the main portion of the section was not varied
by the explanation. Persons, J., held that the word "disaffection" could not be construed as meaning 'absence of or contrary of affection or
love'. Ranade J., interpreted the word "disaffection" not as meaning mere absence or negation of love or good will but a positive feeling of
aversion, which is akin to ill will, a definite insubordination of authority or seeking to alienate the people and weaken the bond of
allegiance, a feeling which tends to bring the Government into hatred and discontent, by imputing base and corrupt motives to it. The
learned Chief Justice of the Allahabad High Court observed that if those remarks were meant to be in any sense different from the
construction placed upon the section by Strachey, J., which was approved, as aforesaid, by the Judicial Committee of the Privy Council, the
later observations of the Bombay High Court could not be treated as authoritative. As the accused in the Allahabad case had pleaded guilty
and the appeal was more or less on the question of sentence, it was not necessary for their Lordships to examine in detail the implications of
the section, though they expressed their general agreement with the view of the Calcutta and the Bombay High Courts in the first two cases,
referred to above.

The section was amended by the Indian Penal Code Amendment Act (IV of 1898). As a result of the amendment, the single explanation to
the section was replaced by three separate explanations as they stand now. The section, as it now stands in its present form, is the result of
the several A.O.S. of 1937, 1948 and 1950, as a result of the constitutional changes, by the Government of India Act, 1935, by the
Independence Act of 1947 and by the Indian Constitution of 1950. Section 124A, as it has emerged after successive amendments by way of
adaptations as aforesaid, reads as follows:

"Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred
to contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with
transportation for life or any shorter term to which fine may be added or with imprisonment which may extend to three years, to which fine
may be added, or with fine.
Explanation 1. The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful
means, without exiting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.
Explanation 3. Comments expressing disapprobation of the administrative of other action of the Government without exciting 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 IV of the Indian Penal Code, headed 'Of offences
against the State'. This species of offence against the State was not an invention of the British. Government in India, but has been known in
England for centuries. Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct,
jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the
State or to public disorder. In England, the crime has thus been described by Stephen in his Commentaries on the Laws of England, 21st
Edition, volume IV, at pages 141- 142, in these words.

"Section IX. Sedition and Inciting to Disaffection-We are now concerned with conduct which, on the one hand, fall short of treason, and on
the other does not involve the use of force or violence. The law has here to reconcile the right of private criticism with the necessity of
securing the safety and stability of the State. Sedition may be defined as conduct which has, either as its object or as its natural consequence,
the unlawful display of dissatisfaction with the Government or with the existing order of society.
The seditious conduct may be by words, by deed, or by writing. Five specific heads of sedition may be enumerated according to the object
of the accused. This may be either
1. to excite disaffection against the King, Government, or Constitution, or against Parliament or the administration of justice;
2. to promote, by unlawful means, any alteration in Church or State;
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 of itself seditious. The test is the manner in which it is made. Candid and honest
discussion is permitted. The law only interferes when the discussion passes the bounds of fair criticism. More especially will this be the case
when the natural consequence of the prisoner's conduct is to promote public disorder."

This statement of the law is derived mainly from the address to the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan (1).
In the course of his address to the Jury the learned Judge observed as follows:

"Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by short interval. Sedition in itself is a
comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquility of
the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition generally
are to induce discontent and insurrection and stir up opposition to the Government, and bring the administration of justice into contempt;
and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described, as disloyalty in action and
the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public
disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm,
and generally all endeavours to promote public disorder."

That the law has not changed during the course of the centuries is also apparent from the following statement of the law by Coleridge, J., in
the course of his summing up to the Jury in the case of Rex. v. Aldred (2):

"Nothing is clearer than the law on this head-namely, that whoever by language, either written or spoken incites or encourages other to use
physical force or violence in some public matter connected with the State, is guilty of publishing a seditious libel. The word "sedition" in its
ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or an uproar; it implies violence or lawlessness in
some form...."

In that case, the learned Judge was charging the Jury in respect of the indictment which contained the charge of seditious libel by a
publication by the defendant.

While dealing with a case arising under Rule 34(6) (e) of the Defence of India Rules under the Defence of India Act (XXXV of 1939) Sir
Maurice Gwyer, C.J., speaking for the Federal Court, made the following observations in the case of Niharendu Dutt Majumdar v. The King
Emperor (1); and has pointed out that the language of s. 124A of the Indian Penal Code, which was in pari materia with that of the Rule in
question, had been adopted from the English Law, and referred with approval to the observations of Fitzerald, J., in the case quoted above;
and made the following observations which are quite apposite:

"...generally speaking, we think that the passage accurately states the law as it is to be gathered from an examination of a great number of
judicial pronouncements. The first and most fundamental duty of every Government is the preservation of order, since order is the condition
precedent to all civilisation and the advance of human happiness. This duty has no doubt been sometimes performed in such a way as to
make the remedy worse than the disease; but it does not cease to be a matter of obligation because some on whom the duty rests have
performed it ill. It is to this aspect of the functions of government that in our opinion the offence of sedition stands related. It is the answer
of the State to those who, for the purpose of attacking or subverting it, seek (to borrow from the passage cited above) to disturb its
tranquillity, to create public disturbance and to promote disorder, or who incite others to do so. Words, deeds or writings constitute sedition,
if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring
Government into contempt. This is not made an offence in order to minister to the wounded vanity of Government, but because where
Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the
reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to
disorder or must be such as to satisfy reasonable men that is their intention or tendency."

This statement of the law was not approved by their Lordships of the Judicial Committee of the Privy Council in the case of  King-Emperor
v. Sadashiv Narayan Bhalerao (1). The Privy Council, after quoting the observations of the learned chief Justice in Niharendu's case (2),
while disapproving of the decision of the Federal Court, observed that there was no statutory definition of "Sedition" in England, and the
meaning and content of the crime had to be gathered from any decisions.

But those were not relevant considerations when one had to construe the statutory definition of 'Sedition' as in the Code. The Privy Council
held that the language of s. 124A, or of the Rule aforesaid, under the Government of India Act, did not justify the statement of the law as
made by the learned Chief Justice in Niharendu's case(1) they also held that the expression "excite disaffection" did not include "excite
disorder", and that, therefore, the decision of the Federal Court in Niharendu's case(1) proceeded on a wrong construction of s. 124A of the
Penal Code, and of sub-para (e), sub-rule (6) of Rule 34 of the Defence of India Rules; Their Lordships approved of the dicta in the case of
Bal Gangadhar Tilak (2), and in the case of Annie Basant v. Advocate General of Madras (3), which was a case under s. 4 of the Indian
Press Act. (I of 1910), which was closely similar in language to s. 124A of the Penal Code.

The Privy Council also referred to their previous decision in Wallace Johnson v. The Kinq(4) which was a case under sub  s. 8 of s. 326 of
the Criminal Code of the Gold Coast, which defined "seditious intention" in terms similar to the words of s.124A  of the Penal Code. In that
case, their Lordships had laid down that incitement to violence was not necessary ingredient of the Crime of sedition as defined in that law.

Thus, there is a direct conflict between the decision of the Federal Court in Niharendu's case (1) and of the Privy Counsil in a number of
cases from Indian and the Gold Coast, referred to above. It is also clear that either view can be taken and can be supported on good reasons.
The Federal Court decision takes into consideration, as indicated above, the pre-exiting Common Law of England in respect of sedition. It
does not appear from the report of the Federal Court decision that the rulings aforesaid of the Privy Council had been brought to the notice
of their Lordships of the Federal Court.

So far as this Court is concerned, the question directly arising for determination in this batch of cases has not formed the subject matter of
decision previously. But certain observations made by this Court in some cases, to be presently noticed, with reference to the interrelation
between freedom of speech and seditious writing or speaking have been made in the very first year of the coming into force of the
Constitution. Two cases involving consideration of the fundamental right of freedom of speech and expression and certain laws enacted by
some of the States imposing restrictions on that right came up for consideration before this Court. Those cases, reported in  Romesh Thappar
v. The State of Madras(1) and Brij Bhushan v. The State of Delhi(2) were heard by Kania C.J., Pazl Ali, Patanjali Shastri, Mehr Chand
Mahajan, Mukherjea and Das, JJ, and judgments were delivered on the same day (May 26, 1950). In Romesh Thappar's case (1), the
majority of the Court declared s. 9(1-A) of the Madras Maintenance of Public Order Act (Mad. XXXIII of 1949), which had authorised
imposition of restrictions on the fundamental right of freedom of speech, to be in excess of cl. (2) of  Art. 19 of the Constitution authorising
such restrictions, and, therefore, void and unconstitutional. In Brij Bhushan's case (2), the same majority struck down s. 7(1)(c) of the East
Punjab Public Safety Act, 1949, as extended to the Province of Delhi, authorising the imposition of restrictions on the freedom of speech
and expression for preventing or combating any activity prejudicial to the public safety or the maintenance of public order. The Court held
those provisions to be in excess of the powers conferred on the Legislature by cl. (2) of Art. 19 of the Constitution. Mr. Justice Patanjali
Sastri, speaking for the majority of the Court in Romesh Thappar's case (1) made the following observations with reference to the decisions
of the Federal Court and the Judicial Committee of the Privy Council as to what the law of Sedition in India was:

"It is also worthy of note that the word "sedition" which occurred in article 13(2) of the Draft Constitution prepared by the Drafting
Committee was deleted before the article was finally passed as article 19(2). In this connection it may be recalled that the Federal Court had,
in defining sedition in Niharendu Dutt Majumdar v. The King Emperor (2) held that "the acts or words complained of must either incite to
disorder or must be such as to satisfy reasonable men that that is their intention or tendency", but the Privy Council overruled that decision
and emphatically reaffirmed the view expressed in Tilak's case to the effect that "the offence consisted in exciting or attempting to excite in
others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual
disturbance, great or small" -King Emperor v. Sadashiv Narayan Bhalerao. Deletion of the word "sedition" from the draft article 13(2),
therefore, shows that criticism of Government exciting disaffection or bad feelings toward it is not to be regarded as a justifying ground for
restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is
also significant that the corresponding Irish formula of "undermining the public order or the authority of the State" ( article 40(6)(i) of the
Constitution of Fire, 1937) did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits
have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation
that freedom of speech and of the press lay at the foundation of all domocratic organisations, for without free political discussion no public
education, so essential for the proper functioning of the processes of popular government, is possible, freedom of such amplitude might
involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the
preparation of the First Amendment of the Federal Constitution" that "it is better to leave a few of its naxious branches to their luxuriant
growth, than, by prunning, them away to injure the vigour of those yielding the proper fruits" : (quoted in Near v. Minnesotta).

Those observations were made to bring out the difference between the "security of the State" and "public order". As the latter expression did
not find a place in Art. 19(2) of the Constitution, as it stood originally, the section was struck down as unconstitutional. Fazl Ali, J.,
dissented from the views thus expressed by the majority and reiterated his observations in Brij Bhushan's case (1) In the course of his
dissenting judgment, he observed as follows:

"It appears to me that in the ultimate analysis the real question to be decided in this case is whether "disorders involving menace to
the peace and tranquillity of the Province" and affecting "Public safety" will be a matter which undermines the security of the State or not. I
have borrowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the
question raised before us attacking the validity of the Act must be formulated in the manner I have suggested. If the answer to the question
is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of "any document or class
of documents" for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19(2) of the
Constitution. From the trend of the arguments addressed to us, it would appear that if a document is seditious, its entry could be validly
prohibited, because sedition is a matter which undermines the Security of the State; but if on the other hand, the document is calculated to
disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public
tranquillity are not matters which undermine the security of the State. Speaking for myself, I cannot understand this argument. In Brij
Bhushan v. The State. I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and authority on
Criminal Law like Sir James Stephen has classed sedition as an offence against public tranquillity."

In Brij Bhushan case (1), Fazl Ali, J., who was again the dissenting judge, gave his reasons to greater detail. He referred to the judgment of
the Federal Court in Niharendu Dutt Majumdar's case and to the judgment of the Privy Council to the contrary in King Emperor v. Sada
Shiv Narayan (1). After having pointed out the divergency of opinion between the Federal Court of India and the Judicial Committee of the
Privy Council, the learned Judge made the following observations in order to explaim why the term "sedition" was not specifically
mentioned in Art. 19(2) of the Constitution:

"The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word "sedition"
should be used in article 19(2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their
mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity
and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial
Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder. In these
circumstances, it is not surprising that they decided not to use the word "sedition" in clause (2) but used the more general words which
cover sedition and everything else which makes sedition such a serious offence. That sedition does undermine the security of the State is a
matter which cannot admit of much doubt. That it undermines the security of the state usually through the medium of public disorder is also
a matter on which eminent Judges and jurists are agreed. Therefore, it is difficult to hold that public disorder or disturbance of public
tranquillity are not matters which undermine the security of the State."

As a result of their differences in the interpretation of Art.19(2) of the Constitution, the Parliament amended cl.(2) of Art. 19, in the form in
which it stands at present, by the Constitution (First Amendment) Act, 1951, by s. 3 of the Act, which substituted the original cl. (2) by the
new cl. (2). This amendment was made with retrospective effect, thus indicating that it accepted the statement of the law as contained in the
dissenting judgment of Fazl Ali, J., in so far as he had pointed out that the concept of "security of the state" was very much allied to the
concept of "public order" and that restrictions on freedom of speech and expression could validly be imposed in the interest of public order.

Again the question of the limits of legislative powers with reference to the provisions of Arts. 19 (1)(a) and 19(2) of the Constitution came
up for decision by a Constitution Bench of this Court in Ramji Lal Modi v. The State of U.P. (1). In that case, the validity of s. 295A of the
Indian Penal Code was challenged on the ground that it imposed restrictions on the fundamental right of freedom of speech and expression
beyond the limits prescribed by cl.(2) of Art. 19 of the Constitution. In this connection, the Court observed as follows:

"the question for our consideration is whether the impugned section can be properly said to be a law imposing reasonable restrictions on the
exercise of the fundamental rights to freedom of speech and expression in the interests of public order. It will be noticed that language
employed in the amended clause is "in the interests of" and not "for the maintenance of". As one of us pointed out in Debi Saron v. The
State of Bihar, the expression "in the interests of" makes the ambit of the protection very wide. A law may not have  been designed to
directly maintain public order and yet it may have been enacted in the interests of public order."

Though the observations quoted above do not directly bear upon the present controversy, they throw a good deal of light upon the ambit of
the power of the legislature to impose reasonable restrictions on the exercise of the fundamental right of freedom of speech and expression.

In this case, we are directly concerned with the question how for the offence, as defined in  s. 124A of the Indian Penal Code, is consistent
with the fundamental right guaranteed by Art. 19 (1)

(a) of the Constitution, which is in these terms:

"19. (1) All citizens shall have the right.

(a) to freedom of speech and

expression..."
This guaranteed right is subject to the right of the legislature to impose reasonable restrictions, the ambit of which is indicated by cl. (2),
which, in its amended form, reads as follows:

"(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far
as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the
State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement
to an offence."

It has not been questioned before us that the fundamental right guaranteed by Art. 19(1)(a) of the freedom of speech and expression is not
an absolute right. It is common ground that the right is subject to such reasonable restrictions as would come within the purview of cl. (2),
which comprises (a) security of the State, (b) friendly relations with foreign States, (c) public order,

(d) decency or morality, etc. With reference to the constitutionality of s. 124A or s. 505 of the Indian Penal Code, as to how far they are
consistent with the requirements of cl. (2) of Art. 19 with particular reference to security of the State and public order, the section, it must be
noted, penalises any spoken or written words or signs or visible representations, etc., which have the effect of bringing, or which attempt to
bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law" has to be
distinguished from the person's for the time being engaged in carrying on the administration. "Government established by law" is the visible
symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the
continued existence of the Government established by law is an essential condition of the stability of the State. That is why 'sedition', as the
offence in s. 124A has been characterised, comes under Chapter VI relating to offences against the State. Hence any acts within the meaning
of s. 124Awhich have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating
disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to
it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or
spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in
the term 'revolution', have been made penal by the section in question. But the section has taken care to indicate clearly that strong words
used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not
come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without
exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words,
disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government,
or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful
means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of
violence.

It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder, it
would not come within the definition of 'sedition'. What has been contended is that a person who makes a very strong speech or uses very
vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come
within the ambit of the penal section. But, in our opinion, such words written or spoken would be outside the scope of the section. In this
connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic
consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one
hand, fully to protect and guarantee the freedom of speech and expression, which is the sine quo non of a democratic form of Government
that our Constitution has established. This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast
upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But
the freedom has to be guarded again becoming a licence for vilification and condemnation of the Government established by law, in words
which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the
Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government
established by law or with the intention of creating public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of
demarcation between the ambit of a citizen's fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the
legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order. We
have, therefore, to determine how far the ss. 124A and 505 of the Indian Penal Code could be said to be within the justifiable limits of
legislation. If it is held, in consonance with the views expressed by the Federal Court in the case of Niharendu Dutt majumdar v. The King
Emperor(1) that the gist of the offence of 'sedition' is incitement to violence or the tendency or the intention to create public disorder by
words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or
creating disaffection in the sense of disloyalty to the State in other words bringing the law into line with the law of sedition in England, as
was the intention of the legislators when they introduced s. 124A into the Indian Penal Code in 1870 as aforesaid, the law will be within the
permissible limits laid down in cl. (2) of Art. 19of the Constitution, if on the other hand we give a literal meaning to the words of the
section, divorced from all the antecedent background in which the law of sedition has grown, as laid down in the several decisions of the
Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also very much beyond the limits laid
down in cl. (2) aforesaid.

In view of the conflicting decisions of the Federal Court and of the Privy Council, referred to above, we have to determine whether and how
far the provisions of ss. 124A and 505 of the Indian Penal Code have to be struck down as unconstitutional. If we accept the interpretation
of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of
public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the
fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of (2) of Art. 19, ss.
124A and 505 are clearly violative of Art. 19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, cl.(2)
of Art. 19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended cl. (2), quoted above, the expression "in the
interest of...public order" are words of great amplitude and are much more comprehensive than the expression "for the maintenance of", as
observed by this Court in the case of Virendra v. The State of Punjab (1). Any law which is enacted in the interest of public order may be
saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or
intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of
enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them
unconstitutional in view of Art. 19(1)(a) read with cl. (2). It is well settled that if certain provisions of law construed in one way would
make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour
of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the
sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public
peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of
public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent
with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the
pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in
the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and
the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal
meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to
suppress (vide (1)). The Bengal Immunity Company Limited v. The State of Bihar (1) and (2) R.M.D. Chamarbaugwalla v. The Union of
India (2). Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their
application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.

We may also consider the legal position, as it should emerge, assuming that the main s. 124A iscapable of being construed in the literal
sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, it is not open
to this Court to construe the section is such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the
way in which the Federal Court intended to apply it ? In our opinion, there are decisions of this Court which amply justify our taking that
view of the legal position. This Court, in the case of R.M.D. Chamarbaugwalla v. The Union of India (1) has examined in detail the several
decisions of this Court, as also of the Courts in America and Australia. After examining those decisions, this Court came to the conclusion
that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the
impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which
would make it unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to choose between
a definition of the expression 'Prize Competitions" as limited to those competitions which were of a gambling character and those which
were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (XLII of
1955), with particular reference to ss. 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty
attached only to those competitions which involved the element of gambling and those competitions in which success depended to a
substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case
in hand in so far as we propose to limit its operation only to such activities as come within the ambit of  the observations of the Federal
Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of
public peace.

We do not think it necessary to discuss or to refer in detail to the authorities cited and discussed in the reported case  R.M.D.
Chamarbaugwalla v. The Union of India (1) at pages 940 to 952. We may add that the provisions of the impugned sections, impose
restrictions on the fundamental freedom of speech and expression, but those restrictions cannot but be said to be in the interest of public
order and within the ambit of permissible legislative interference with that fundamental right.

It is only necessary to add a few observations with respect to the constitutionality of s. 505 of the Indian Penal Code. With reference to each
of the three clauses of the section, it will be found that the gravamen of the offence is making, publishing or circulating any statement,
rumour or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise
disregard or fail in his duty as such; or (b) to cause fear or alarm to the public or a section of the public which may induce the commission
of an offence against the State or against public tranquillity; or (c) to incite or which is likely to incite one class or community of persons to
commit an offence against any other class or community. It is manifest that each one of the constituent elements of the offence under  s.
505 has reference to, and a direct effect on, the security of the State or public order. Hence, these provisions would not exceed the bounds of
reasonable restrictions on the right of freedom of speech and expression. It is clear, therefore, that cl. (2) of Art. 19 clearly save the section
from the vice of unconstitutionality.

It has not been contended before us on behalf of the appellant in C.A. 169 of 1957 or on behalf of the respondents in the other appeals (No.
124- 126 of 1958) that the words used by them did not come within the purview of the definition of sedition as interpreted by us. No
arguments were advanced before us to show that even on the interpretation given by us their cases did not come within the mischief of the
one or the other section, as the case may be. It follows, therefore, that the Criminal Appeal 169 of 1957 has to be dismissed. Criminal
Appeals 124-126 of 1958 will be remanded to the High Court to pass such order as it thinks fit and proper in the light of the interpretation
given by us.

Appeal No. 169 of 1957 dismissed.

Appeals Nos. 124 to 126 of 1958 allowed.

Supreme Court of India

S. Khushboo vs Kanniammal & Anr on 28 April, 2010
Author: . B.S. Chauhan
Bench: K.G. Balakrishnan, Deepak Verma, B.S. Chauhan

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 913 of 2010

[Arising out of SLP (Crl.) No. 4010 of 2008]

S. Khushboo ... Appellant

Versus
Kanniammal & Anr. ... Respondents

WITH Criminal Appeal 914/2010 @SLP (Crl.) No. 6127 of 2008 Criminal Appeal 915/2010 @SLP (Crl.) No. 6257 of 2008 Criminal
Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008 Criminal Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008 Criminal Appeal 918/2010
@SLP (Crl.) No. 7049 of 2008 Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008 Criminal Appeal 920/2010 @SLP (Crl.) No.
6277 of 2008 Criminal Appeal 921/2010 @SLP (Crl.) No. 7052 of 2008 Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of 2008
Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008 Criminal Appeal 924/2010 @SLP (Crl.) No. 7051 of 2008 Criminal Appeal
925/2010 @SLP (Crl.) No. 4761 of 2008 Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008 Criminal Appeal 927/2010 @SLP
(Crl.) No. 4767 of 2008 Criminal Appeal 928/2010 @SLP (Crl.) No. 4763 of 2008 Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of
2008 Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008 Criminal Appeal 931/2010 @SLP (Crl.) No. 4764 of 2008 Criminal Appeal
932/2010 @SLP (Crl.) No. 4770 of 2008 Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008 J U D G M E N T Dr. B.S.
CHAUHAN, J

1. Leave granted in all the cases.

2. The appellant is a well known actress who has approached this Court to seek quashing of criminal proceedings pending against her. As
many as 23 Criminal Complaints were filed against her, mostly in the State of Tamil Nadu, for the offences contemplated under  Sections
499, 500 and 505 of the Indian Penal Code, 1860 [hereinafter `IPC'] and Sections 4 and 6 of the Indecent Representation of Women
(Prohibition) Act, 1986 [hereinafter `Act 1986']. The trigger for the same were some remarks made by the appellant in an interview to a
leading news magazine and later on the same issue was reported in a distorted manner in another periodical. Faced with the predicament of
contesting the criminal proceedings instituted against her in several locations, the appellant had approached the High Court of Madras,
praying for the quashing of these proceedings through the exercise of its inherent power under Section 482 of the Code of Criminal
Procedure, 1973 [hereinafter `Cr.PC.']. The High Court rejected her plea vide impugned judgment and order dated 30.4.2008. At the same
time, in order to prevent the inconvenience of litigating the same subject-matter in multiple locations directed that all the cases instituted
against the appellant be consolidated and tried together by the Chief Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the
aforesaid judgment, the appellant approached this Court by way of a batch of Special Leave Petitions.

3. Before addressing the legal aspects of the case before us, it would be useful to examine the relevant facts. In September 2005, `India
Today' a fortnightly news magazine had conducted a survey on the subject of the sexual habits of people residing in the bigger cities of
India. One of the issues discussed as part of this survey was the increasing incidence of pre-marital sex. As a part of this exercise, the
magazine had gathered and published the views expressed by several individuals from different segments of society, including those of the
appellant. The appellant expressed her personal opinion wherein she had noted the increasing incidence of pre-marital sex, especially in the
context of live-in relationships and called for the societal acceptance of the same. However, appellant had also qualified her remarks by
observing that girls should take adequate precautions to prevent unwanted pregnancies and the transmission of venereal diseases. This can
be readily inferred from the statement which was published, a rough translation of which is reproduced below:

"According to me, sex is not only concerned with the body; but also concerned with the conscious. I could not understand matters such as
changing boyfriends every week. When a girl is committed to her boyfriend, she can tell her parents and go out with him. When their
daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of
the marriage, the girls should be with virginity.
None of the educated men, will expect that the girl whom they are marrying should be with virginity. But when having sexual relationship
the girls should protect themselves from conceiving and getting venereal diseases."
These remarks were published alongside a survey, the relevant extracts of which are stated below:
"Will you marry a person who had relationship with others?

18% - Yes, 71% - No Is it necessary to be a virgin till the time of marriage?

65% - Yes, 26% - No The remaining percentage of people said: Do not know/Cannot say 82% women had given an opinion that a girl
should be a virgin at the time of marriage."

4. Subsequently, `Dhina Thanthi', a Tamil daily carried a news item on 24.9.2005 which first quoted the appellant's statement published in
`India Today' and then opined that  it had created a sensation all over the State of Tamil Nadu. This news item also reported a conversation
between the appellant and a correspondent from `Dhina Thanthi', wherein the appellant had purportedly defended her views in the following
manner (rough translation reproduced below):

"The persons who are protesting against my interview, are talking about which culture? Is there anyone who does not know about sex in
Tamil Nadu? Is there anyone who does not know about AIDS? How many men and women do not have sex before marriage?
Why are people saying that after the marriage the husband and wife should be honest and faithful to each other? One should have
confidence in the other, only to avoid the mistakes from being committed. If the husband, without the knowledge of the wife, or the wife,
without the knowledge of the husband, have sex with other persons, if a disease is caused through that, the same will affect both the
persons. It will also affect the children. Only because of this, they are saying like that."

However, soon after the publication of the above mentioned news item, the appellant had sent a legal notice dated 2.10.2005 to the Editor of
`Dhina Thanthi', categorically denying that she had made the statement quoted above. In fact, the appellant had asked the publisher to
withdraw the news-item carried on 24.9.2005 and to publish her objections prominently within three days of receipt of the notice, failing
which the appellant would be constrained to take appropriate legal action against the newspaper.

5. As outlined above, the publication of these statements in `India Today' and `Dhina Thanthi' drew criticism from some quarters and
several persons and organisations filed criminal complaints against the appellant. For instance, the complainant in the appeal arising out of
SLP (Crl) No. 4010 of 2008 has stated that she is a married woman who is the Treasurer of a District-level unit of the Pattali Makal Katchi
[hereinafter `PMK'], a political party, and is also involved in social service. She had quoted some parts of the statements published in `India
Today' and `Dhina Thanthi' to allege that the appellant's interview had brought great shame on her since it had suggested that women of her
profile had engaged in premarital sex. The complainant further alleged that the appellant's remarks had caused mental harassment to a large
section of women, and in particular women from Tamil Nadu were being looked down upon with disrespect and contempt.

6. In the appeal arising out of SLP (Crl.) 4764 of 2008, the complainant is a male advocate who is a District Secretary of the PMK for
Salem District. In his complaint, there is no direct reference to the news-item published in `Dhina Thanthi' on 24.9.2005. Instead the
complainant has stated that he found second-hand accounts of the same to be quite shocking since the appellant had questioned the need for
women to maintain their virginity or chastity. It was alleged that these remarks were an abuse against the dignity of the Tamil women and
that they had grossly affected and ruined the culture and morality of the people of the State. It was further submitted that these statements
could persuade people to involve themselves in unnatural crimes and that the appellant's acts amounted to commission of offences
punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 3 and 4 of Act 1986. Similarly, in the appeal arising out
of SLP (Crl.) 6127 of 2008, the complainant is a lady advocate who has been practicing in the Trichy District Courts for more than 10 years.
She has quoted some portions from the statements published in `India Today' and `Dhina Thanthi' to submit that the appellant's acts were
punishable under Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509 IPCread with Section 6 of Act 1986.

7. Likewise, in the appeal arising out of SLP (Crl.) 6259 of 2008, the complainant has stated that she is a married woman belonging to a
reputed family and that she is serving as the President of the District Magalir Association of the PMK (in Thiruvarur) and rendering social
service. In her complaint, some parts of the appellant's statements have been quoted to allege that she had suffered great mental agony and
shame since it was suggested that all women in Tamil Nadu had lost their virginity before marriage. In this respect, the complainant has
alleged that the appellant had committed offences punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 6 of
Act 1986. It is noteworthy that in most of the other cases filed in various districts of Tamil Nadu, the complainants are functionaries of the
PMK and similar allegations have been levelled against the appellant. Oddly enough, one of the complaints had even been filed in Indore,
Madhya Pradesh.

8. As mentioned earlier, the appellant approached the High Court of Madras to seek quashing of all the criminal proceedings instituted
against her in this connection. In its judgment dated 30.4.2008, the High Court refused to quash the proceedings by exercising its inherent
powers under Section 482Cr.PC, on the premise that the relevant considerations in this case were questions of fact which were best left to
be determined by a trial judge. The High Court noted that two basic questions were involved in the case. Firstly, whether the appellant could
claim any of the recognised defences against the allegations of having committed defamation, as contemplated by Section 499 IPC.
Secondly, whether the complainants could at all be described as `aggrieved persons' within the meaning ofSection 199 Cr.PC since that was
linked to the question of whether the complaints had been made in a bona fide manner. The High Court thought it fit to leave both these
questions for consideration by a trial judge, and in a partial reprieve to the appellant it was directed that all the criminal proceedings pending
against her be consolidated and tried by the Chief Metropolitan Magistrate at Egmore, Chennai. However, the High Court also proceeded to
record its own views regarding the contents of the appellant's statements and even made some strong observations condemning the
incidence of premarital sex and live-in relationships.

9. In the proceedings before us, Ms. Pinki Anand, learned counsel appearing for the appellant, has submitted that the complainants
(respondents in these appeals) were not `persons aggrieved' within the meaning of Section 199(1)(b) Cr.PC and hence they were not
competent to institute private complaints for the alleged offences. It was stated that the appellant had made a fair and reasonable comment 
as a prudent person, and therefore, the opinion expressed by the appellant is fully protected under Article 19(1)(a) of the Constitution of
India which guarantees freedom of speech and expression to all citizens. Furthermore, it was contended that even if the allegations in the
various complaints are taken on their face value and accepted in their entirety, the same do not disclose any offence whatsoever and the
opinion of the appellant does not, by any means, fall within the ambit of Sections 499, 500 and 505IPC or Sections 3 and 4 of Act 1986. It
was also canvassed that the criminal proceedings had been instituted in a mala fide manner by the workers of a particular political party,
with the intention of vilifying the appellant and gaining undue political mileage.

10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman, Adv. and Sh. B. Balaji, Adv. appearing for the respondents, submitted that
since the High Court has refused to quash the complaints, this Court should not interfere either since the complaints require determination
of factual controversies that are best left to be decided by a court of first instance. They have asserted that the complainants in these cases
are mostly women belonging to Tamil Nadu, who were personally aggrieved by the appellant's remarks.  It was argued that the endorsement
of pre-marital sex by a prominent person such as the appellant would have a morally corruptive effect on the minds of young people. Her
statement would definitely obscure some basic moral values and expose young people to bizarre ideas about premarital sex, thereby leading
to deviant behaviour which would adversely affect public notions of morality. It was contended that the constitutional protection for speech
and expression is not absolute and that it is subject to reasonable restrictions based on considerations of `public order', `defamation',
`decency and morality' among other grounds.

11. We have considered the rival submissions made by learned counsel for the parties and perused the record.

12. In order to decide this case, it will not be proper for us to either condemn or endorse the views expressed by the appellant. When the
criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to
intervene with the process of investigation and trial. However, such forms of judicial review can be exercised to prevent a miscarriage of
justice or to correct some grave errors that might have been committed by the subordinate courts. [See decision of this Court in: M/s Pepsi
Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., AIR 1998 SC 128]. In the past, this Court has even laid down some guidelines
for the exercise of inherent power by the High Courts to quash criminal proceedings in such exceptional cases. We can refer to the decision
in State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604, to take note of two such guidelines which are relevance for the
present case :-

"(1). Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a case against the accused.
... (7). Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

13. It is of course a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the
charge against him/her, the proceedings cannot be quashed. In M/s Medchl Chemicals & Pharma Ltd. Vs. M/s Biological E. Ltd. & Ors.,
AIR 2000 SC 1869, this Court observed that a criminal complaint or a charge sheet can only be quashed by superior courts in exceptional
circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence. Similarly, in M/s Zandu
Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, this Court has held that criminal proceedings can be
quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid
down in the statutory provisions themselves. It was further observed that superior courts "may examine the questions of fact" when the use
of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice. In Shakson Belthissor Vs.
State of Kerala & Anr., (2009) 14 SCC 466, this Court relied on earlier precedents to clarify that a High Court while exercising its inherent
jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases. In fact it was
observed:
"One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and
humiliation on the basis of a false and wholly untenable complaint."

14. There can be no quarrel about this Court's competence to quash criminal proceedings pending before the subordinate courts. However,
this power must be exercised sparingly and with circumspection. In light of the position summarized above, we can examine the present
case with two considerations in mind, namely whether the allegations made against the appellant support a prima facie case for the offences
mentioned in the respective complaints, and whether the complaints were made in a bona fide manner.

15. Perusal of the complaints reveals that most of the allegations have pertained to offences such as defamation ( Sections
499, 501 and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and incitement among others. At the outset, we are
of the view that there is absolutely no basis for proceeding against the appellant in respect of some of the alleged offences. For example, the
Act, 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent
manner. However, this statute cannot be used in the present case where the appellant has merely referred to the incidence of pre-marital sex
in her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke the
offences mentioned in this statute to proceed against the appellant, who cannot be described as an `advertiser' or `publisher' by any means.
Similarly, Section 509 IPC criminalises a `word, gesture or act intended to insult the modesty of a woman' and in order to establish this
offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a
spoken word, gesture or physical act. Clearly this offence cannot be made out when the complainants' grievance is with the publication of
what the appellant had stated in a written form. Likewise, some of the complaints have mentioned offences such as those contemplated
by Section 153A IPC (`Promoting enmity between different groups etc.,') which have no application to the present case since the appellant
was not speaking on behalf of one group and the content of her statement was not directed against any particular group either.

16. Coming to the substance of the complaints, we fail to see how the appellant's remarks amount to `obscenity' in the context of  Section
292 IPC. Clause (1) to Section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure,
etc., will be deemed obscene, if –

7 It is lascivious (i.e. expressing or causing sexual desire) or  7 Appeals to the prurient interest (i.e. excessive interest in sexual matters), or
7 If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see, or hear the matter
contained in such materials.

In the past, authors as well as publishers of artistic and literary works have been put to trial and punished under this section. In the present
case, the appellant takes full responsibility for her statement which was published in `India Today', a leading news magazine. It would be
apt to refer back to the decision of this Court in Ranjit D. Udeshi Vs. State of Maharashtra, AIR 1965 SC 881, wherein it was held that if a
mere reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. It was observed that in
the field of art and cinema, the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to
public morality, but having regard to changed conditions, the same are taken for granted without in any way tending to debase or debauch
the mind. What is to be considered is whether a class of persons, not an isolated case, into whose hands the book, article or story falls will
suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. Even
though the decision in that case had upheld a conviction for the sale of a literary work, it became clear that references to sex cannot be
considered obscene in the legal sense without examining the context of the reference.

17. This position was later clarified in Samaresh Bose Vs. Amal Mitra, AIR 1986 SC 967, where the Court held that in judging the question
of obscenity, the judge in the first place should try to place himself in the position of the author and from the viewpoint of the author, the
judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic
value. Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and
should try to appreciate what kind of possible influence the book is likely to have on the minds of the reader.

18. There are numerous other decisions, both from India and foreign country which mandate that `obscenity' should be gauged with respect
to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person. Owing to
the clearformulation on this issue it is not necessary for us to discuss these precedents at length. In the present case, the appellant has merely
referred to the increasing incidence of pre-marital sex and called for its societal acceptance. At no point of time appellant described the
sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader. Furthermore, the statement has
been made in the context of a survey which has touched on numerous aspects relating to the sexual habits of people in big cities. Even
though this survey was not part of a literary or artistic work, it was published in a news magazine thereby serving the purpose of
communicating certain ideas and opinions on the above- mentioned subject. In the long run, such communication prompts a dialogue within
society wherein people can choose to either defend or question the existing social mores. It is difficult to appreciate the claim that the
statements published as part of the survey were in the nature of obscene communications.

19. We must also respond to the claim that the appellant's remarks could have the effect of misguiding young people by encouraging them
to indulge in premarital sex. This claim is a little far-fetched since the appellant had not  directed her remarks towards any individual or
group in particular. All that the appellant did was to urge the societal acceptance of the increasing instances of premaritalsex when both
partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds. If it were to be
considered so, the criminal law machinery would have to take on the unenforceable task of punishing all writers, journalists or other such
persons for merely referring to any matter connected with sex in published materials. For the sake of argument, even if it were to be
assumed that the appellant's statements could encourage some people to engage in premarital sex, no legal injury has been shown since the
latter is not an offence.

20. "Offence" means `an act or instance of offending'; `commit an illegal act' and illegal means, `contrary to or forbidden by law'.

"Offence" has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which
cover the offences punishable under I.P.C. or under special or local law or as defined under Section 2(n) Cr.P.C. or Section 3(38) of the
General Clauses Act, 1897 (vide Proprietary Articles Trade Association Vs. Attorney General for Canada AIR 1931 PC 94; Thomas Dana
Vs. State of Punjab AIR 1959 SC 375; Jawala Ram & Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962 SC 1246; and Standard
Chartered Bank & Ors. Vs. Directorate of Enforcement & Ors. AIR 2006 SC 1301).

21. While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no
statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of
`adultery' as defined under Section 497 IPC. At this juncture, we may refer to the decision given by this Court in Lata Singh Vs. State of
U.P. & Anr., AIR 2006 SC 2522, wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does
not amount to any offence (with the obvious exception of `adultery'), even though it may be perceived as immoral. A major girl is free to
marry anyone she likes or "live with anyone she likes". In that case, the petitioner was a woman who had married a man belonging to
another caste and had begun cohabitation with him. The petitioner's brother had filed a criminal complaint accusing her husband of offences
under Sections 366 and 368 IPC, thereby leading to the commencement of trial proceedings. This Court had entertained a writ petition and
granted relief by quashing the criminal trial. Furthermore, the Court had noted that `no offence was committed by any of the accused and
the whole criminal case in question is an abuse of the process of the Court'.

22. It would also be instructive to refer to a decision of the House of Lords (U.K.) in Gillick Vs. West Norfolk and Wisbech Area Health
Authority, (1985) 3 All ER 402. In that case, mother of a teenage girl had questioned the decision of the National Health Service (NHS) to
issue a circular to local area health authorities which contained guidelines for rendering advice about contraceptive methods to girls under
the age of 16 years. Objections were raised against this circular on the ground that the health service authorities had no competence to
render such advice and that doing so could adversely affect young children while at the same time interfering with parental autonomy in the
matter of bringing up children. The majority decision rejected the challenge against the circular by clarifying that the rendering of advice
about contraceptive methods and their provision by medical professionals did not amount to a sexual offence. Among the several aspects
discussed in that case, it was held that the provision of information about contraceptive facilities to girls under the age of 16 years could not
be opposed on the ground that such information could potentially encourage more sexual activity by the teenagers. For the purpose of the
present case, this decision supports the reasoning that we must fully understand the context and the purpose for which references to sex have
been made in any given setting.

23. We now turn to the question whether the appellant's remarks could reasonably amount to offence of defamation as defined
under Section 499 IPC. In the impugned judgment dated 30.4.2008, the High Court observed that as to whether the appellant could claim a
defence against the allegations of defamation was a factual question and thus would be decided by a trial Court. However, even before
examining whether the appellant can claim any of the statutory defences in this regard, the operative question is whether the allegations in
the impugned complaints support a prima facie case of defamation in the first place. It is our considered view that there is no prima facie
case of defamation in the present case. This will become self- evident if we draw attention to the key ingredients of theoffence contemplated
by Section 499 IPC, which reads as follows:

"499. Defamation.- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes
any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1. - It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that
person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2. - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as
such.
Explanation 3. - An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others,
lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or
lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally
considered as disgraceful. ..."

(emphasis supplied) The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person  or
reasonably know that his/her conduct could cause such harm. Explanation 2 to Section 499 further states that `It may amount to defamation
to make an imputation concerning a company or an association or collection of persons as such.'

24. With regard to the complaints in question, there is neither any intent on part of the appellant to cause harm to the reputation of the
complainants nor can we discern any actual harm done to their reputation. In short, both the elements i.e. mens rea and actus reus are
missing. As mentioned earlier, the appellant's statement published in `India Today' (in September 2005) is a rather general endorsement of
premarital sex and her remarks are not directed at any individual or even at a `company or an association or collection of persons'. It is
difficult to fathom how the appellant's views can be construed as an attack on the reputation of anyone in particular. Even if we refer to the
remarks published in `Dhina Thanthi' (dated 24.9.2005) which have been categorically denied by the appellant, there is no direct attack on
the reputation of anyone in particular. Instead, the purported remarks are in the nature of rhetorical questions wherein it was asked if people
in Tamil Nadu were not aware of the incidence of  sex. Even if we consider these remarks in their entirety, nowhere has it been suggested
that all women in Tamil Nadu have engaged in premarital sex. That imputation can only be found in the complaints that were filed by the
various respondents. It is a clear case of the complainants reading in too much into the appellant's remarks.

25. This takes us to the question of whether the impugned complaints were made in a bona fide manner. As we have already noted, most of
the complainants are associated with the PMK, a political party which is active in the State of Tamil Nadu. This fact does add weight to the
suggestion that the impugned complaints have been filed with the intention of gaining undue political mileage. It may be reiterated here that
in respect of the offence of defamation, Section 199 Cr.PC mandates that the Magistrate can take cognizance of the offence only upon
receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational
purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrate's Courts. There is of course some
room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away
or is otherwise unable to initiate legal proceedings. However, in given facts of the present case, we are unable to see how the complainants
can be properly described as `persons aggrieved' within the meaning of Section 199(1)(b)Cr.PC. As explained earlier, there was no specific
legal injury caused to any of the complainants since the appellant's remarks were not directed at any individual or a readily identifiable
group of people. In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, this Court observed as under:

"The `person aggrieved' means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not
include any kind of disappointment or personal inconvenience. `Person aggrieved' means a person who is injured or one who is adversely
affected in a legal sense."

26. We can also approvingly refer to an earlier decision of this Court in G. Narasimhan & Ors. Vs. T.V. Chokappa, AIR 1972 SC 2609. In
that case a controversy had arisen after `The Hindu', a leading newspaper had published a report about a resolution passed by the Dravida
Kazhagham, a political party, in its conference held on January 23-24, 1971. Among other issues, the resolution also included the following
words:

"It should not be made an offence for a person's wife to desire another man."

The Hindu, in its report, gave publicity to this resolution by using the following words:

"The Conference passed a resolution requesting the Government to take suitable steps to see that coveting another man's wife is not made an
offence under the Indian Penal Code."

A complaint under Sections 499, 500 and 501 IPC was filed in response to this report. Like the present case, the Court had to consider
whether the complainant had the proper legal standing to bring such a complaint. The Court did examine Section 198 of the Code of
Criminal Procedure, 1898 (analogous toSection 199 of the Cr.PC. 1973) and observed that the said provision laid down an exception to the
general rule that a criminal complaint can be filed by anyone irrespective of whether he is an "aggrieved person" or not. But there is a
departure from this norm in so far as the provision permits only an "aggrieved person" to move the Court in case of defamation. This section
is mandatory and it is a settled legal proposition that if a Magistrate were to take cognizance of the offence of defamation on a complaint
filed by one who is not an "aggrieved person", the trial and conviction of an accused in such a case by the Magistrate would be void and
illegal. This Court further noted that the news-item in question did not mention any individual person nor did it contain any defamatory
imputation against any individual. Accordingly, it was held that the complainant was not a `person aggrieved' within the meaning of Section
198 CrPC, 1898. The Court also took note of Explanation 2 to Section 499 IPC which contemplates defamation of `a company or an
association or any collection of persons as such'. Undoubtedly, the explanation is wide but in order to demonstrate the offence of
defamation, such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular
persons, as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established
so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. In case a class is mentioned, if such a class
is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal
prosecution cannot proceed.

While deciding the case, this Court placed reliance on the judgment of the House of Lords in Knupffer Vs. London Express Newspaper Ltd.
(1944) 1 ALL ER 495, wherein it had been held that it is an essential element of the cause of action for defamation that the words
complained of should be published "of the complainant/plaintiff". Where he is not named, the test would be whether the words would
reasonably lead people acquainted with him to the conclusion that he was the person referred to.

In fact, it is the reputation of an individual person which must be in question and only such a person can claim to have "a legal peg for a
justifiable claim to hang on".

27. Coming back to the facts of the present case, the complainants have alleged defamation in respect of imputations against the character of
Tamil-speaking women, which could perhaps be viewed as a class of persons. However, we have already explained, the appellant's remarks
did not suggest that all women in Tamil Nadu have engaged in premarital sex. In fact her statement in `India Today' did not refer to any
specific individual or group at all. If we refer to one of the questions asked as part of the concerned survey, one of the answers shows that
26% of the people who responded to the same did not think that it was necessary for women to retain their virginity till the time of marriage.
Clearly the appellant was not alone in expressing such a view, even though it may be unpopular or contrary to the mainstream social
practices. Even if it were assumed that the news-item carried in `Dhina Thanthi' caused mental agony to some sections of women in
Tamil Nadu, there is no prima facie case for any offence. What is interesting to note is that not all of the complainants are women, and in
fact almost all the complainants are associated with a particular political party.

28. We are of the view that the institution of the numerous criminal complaints against the appellant was done in a mala fide manner. In
order to prevent the abuse of the criminal law machinery, we are therefore inclined to grant the relief sought by the appellant. In such cases,
the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of
the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for
placing reasonable restrictions on the `freedom of speech and expression' is indeed a very high one and there should be a presumption in
favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory
offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process
which carries an implicit degree of coercion andit  should not be triggered by false and frivolous complaints, amounting to harassment and
humiliation to the accused.

29. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on
grounds such as `decency and morality' among others, we must lay stress on the need to tolerate unpopular views in the socio-cultural space.
The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to
sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance in the political sense,
we must also promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the appellant's remarks did provoke a
controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage.
While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there
are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein
sexual relations outside the marital setting are accepted as a normal occurrence.  Even in the societal mainstream, there are a significant
number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the
criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-
extensive. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable.
Instead, the real issue of concern is the disproportionate response to the appellant's remarks. If the complainants vehemently disagreed with
the appellant's views, then they should have contested her views through the news media or any other public platform. The law should not
be used in a manner that has chilling effects on the `freedom of speech and expression'. It would be apt to refer to the following
observations made by this Court in S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574, which spell out the appropriate approach
for examining the scope of `reasonable restrictions' under Art. 19(2) of the Constitution that can be placed on the freedom of speech and
expression:-

" ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom
are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should 
have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest.

In other words, the expression should be

inseparably locked up with the action
contemplated like the equivalent of a `spark in a powder keg'.

The Court further held:

" ... The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence
and not that of an out of the ordinary or hypersensitive man ... The different views are allowed to be expressed by proponents and opponents
not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. ...
Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The
fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction
must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and
operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to
democracy as to the person himself."

30. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are
allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers.
Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non-   conventional
morality has to be tolerated as the same cannot be a ground to penalise the author.

31. Before saying omega, it is necessary for us to point out certain unwarranted developments that have taken place ever since the matter
was heard till date. In fact, during the course of hearing, certain queries were put to the learned counsel appearing for parties so as to clarify
the legal issue involved in the matter but unfortunately, those queries have been highly misunderstood not only by media but also by
common man. As a result thereof, we have been flooded with several letter petitions making a prayer for review of the order passed by us. It
is pertinent to mention here that no order was passed by us and only during the course of hearing, we had either given some instances or put
some questions to the learned counsel which were answered by them. Thus, this hyper active attitude of the common man was, indeed, not
called for. Some have even gone to the extent of telling us that we should have known the Indian mythology before putting such question.
Thus, whatever we have said during the course of the hearing should be reviewed. We fail to understand how such an attitude could be
adopted by those learned persons who were involved in sending various letter petitions to us.  Admittedly, all those persons who have sent
letters to us were not present on that particular date but must have gathered information from the print and electronic media which evoked
their sentiments to such an extent that they prayed for review.

32. It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general
public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get
unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped. We are saying
so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were
misquoted which raised unnecessary hue and cry.

33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard.

34. In conclusion, we find that the various complaints filed against the appellant do not support or even draw a prima facie case for any of
the statutory offences as alleged. Therefore, the appeals are allowed and the impugned judgment and order of the High Court dated
30.4.2008 is set aside. The impugned criminal proceedings are hereby quashed.

............................CJI.

............................. J.

(DEEPAK VERMA) ............................. J.(Dr. B.S. CHAUHAN) New Delhi April 28, 2010
Supreme Court of India
Harbhajan Singh vs State Of Punjab on 2 March, 1965

Equivalent citations: 1966 AIR 97, 1965 SCR (3) 235

Author: P Gajendragadkar
Bench: Gajendragadkar, P.B. (Cj)

PETITIONER:
HARBHAJAN SINGH

Vs.

RESPONDENT:
STATE OF PUNJAB

DATE OF JUDGMENT:
02/03/1965

BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
DAYAL, RAGHUBAR
RAMASWAMI, V.

CITATION:
1966 AIR 97 1965 SCR (3) 235
CITATOR INFO :
RF 1966 SC 595 (24)
R 1966 SC1762 (4)
RF 1969 SC 381 (2)
R 1971 SC1567 (7)
R 1977 SC 170 (6)
RF 1981 SC1514 (10,16)
RF 1990 SC1459 (31)

ACT:
Indian Penal Code (Act 45 of 1860) s. 499, Exception Nine-
Scope of.

HEADNOTE:
 The Government of Punjab issued a press note stating
that certain dailies in the States were publishing false
reports alleging the complicity of a Minister's son in
smuggling, that the allegations were made with a view to
malign the Government, and, that the name the son should be
openly mentioned. In response to that challenge the
appellant, who was a public worker, published a statement in
the press, naming the Chief Minister's son as the leader of
the smugglers, and as also responsible for a large number of
crimes. He also requested that the Government should appoint
a committee of independent Judges to inquire into the
matter. The Chief Minister's son then filed a complaint of
defamation against the appellant. After the complainant and
his witnesses were examined, the appellant filed a detailed
written statement in answer to the questions under s. 342,
Criminal Procedure Code, ten months after he was questioned
under that section. He claimed therein the protection of
both the First and Ninth Exceptions to s. 449 of the Indian
Penal Code, 1860. At the very commencement of the
proceedings, he gave a list of 328 witnesses. to be examined
on his behalf. He was allowed to summon only 35 and
eventually he examined 20 defence witnesses. He also
produced several documents. After considering the oral and
documentary evidence, the trial Court convicted the
appellant. In his appeal to the High Court, he claimed only
the protection of the Ninth Exception that is, that he
published the statement in good faith and for public good.
The High Court dismissed the appeal, with a modification in
the sentence.
In his appeal to this Court, the appellant contended
that, in appreciating his evidence in respect of good faith,
the High Court had misdirected itself.
HELD: A broad survey of the evidence led by the
appellant and the background in which the impugned statement
was made, show that the High Court was in error in holding
that the appellant had failed to show that he acted in good
faith when he published the statement. [253 B-C]
(ii) The High Court had misdirected itself in dealing
with the question about the nature and scope of the onus of
proof which the appellant had to discharge in seeking the
protection of the Ninth Exception, because, it held that in
discharging the onus, the plea should be proved by the
appellant as strictly as if the complaints was being
prosecuted for the offence. Where the burden of an issue
lies upon the accused under s. 105 of the Evidence Act, he
is not required to discharge the burden by leading evidence
to prove his case beyond a reasonable doubt. It is
sufficient if he succeeds in provinga preponderance of
probability, for then, the burden is shifted' to the
prosecution which has still to discharge its original onus
that never shifts, that is, to establish on the whole case
the guilt beyond a reasonable doubt. [240 H; 241 C-G; 243A-
B]
R.V. Carr-Braint,, [1943] 2 All. E.R. 156, referred
(ii) While dealing with the appellant's claim for
protection under the Ninth Exception, the High Court had
confused the requirements
236
of the First Exception with those of the Ninth. It was not
necessary to consider whether the appellant had strictly
proved the truth of the allegation made by him, because,
proof of truth of the impugned statement is not an element
of the Ninth Exception as it is of the First. What the Ninth
Exception requires an accused person to prove is that he
made the statement in good faith. The question as to
whether the accused acted in good faith would depend on the
facts and circumstances of each case, What is the nature of
the imputation made; under what circumstances did it co.me
to be made; what is the status of the person who makes the
imputation; was there any malice in his mind when he made
the imputation; did he make any ,enquiry before he made it;
are there reasons to accept his: story that he acted with
due care and attention and was satisfied that the imputation
was true; these, and other considerations would be
relevant in deciding the question. [243 B-E; 244 G-H]
(iii) The High Court also erred in holding that the
appellant's written statement should not be seriously
considered, as he did not make out his case of good faith at
the early stage of the trial, and that the written statement
was likely to have been influenced by legal advice. If the
written statement filed after a long delay contained pleas
which could otherwise be legitimately regarded as
matters of after-thought, that no doubt, would affect the
value of the pleas taken in the written statement. But, the
fact that at the very commencement of the proceedings, the
appellant called for a large number of witnesses and
documents, and the evidence led by him as well as the nature
of the cross-examination to which he subjected the
complainant and his witnesses, make it difficult to reject
his plea of good faith, on the ground that the written
statement was filed very late and the pleas taken in it
might be an after-thought. [245 H. B-C: 246 E-F]
Tilkeshwar Singh and others v. State of Bhar, A.I.R. 1956.
S. C.239 explaired

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 53 of 1951.

Appeal by special leave from the judgment and order dated November 25, 1960 of the Punjab High Court in Criminal Appeal No. 86-D of
1959.

T.R. Bhasin, S.C. Malik, Sushma Malik and Rant Behja Lal Malik, for the appellant.

R.N. Sachthey, for respondent No. 1.

Ram Lal Anand, Ajit Singh Johar, S.K. Mehta, and K.L. Mehta, for respondent No. 2.

The, Judgment of the Court was delivered by Gajendragadkar,C. J.,By this appeal, which has been brought to this Court by special leave,
the appellant Harbhajan Singh challenges the correctness of his conviction for an offence under S. 500 07 the Indian Penal Code, and the
sentence imposed on him for the said offence. The criminal proceedings against the appellant were started on a complaint filed by Surinder
Singh Kairon, son of S. Partap Singh Kairon, who was at the relevant time the Chief Minister of the State of Punjab. In his complaint, the
complainant Surinder Singh alleged that the appellant had published in the Press a statement against him which was highly defamatory of
him. The said statement was published in the "Blitz", which is a weekly magazine of Bombay, on July 23, 1957, and extracts from it were
given publicity in the "Times of India" and certain other papers. According to the, complaint, the defamatory statement was, absolutely
untrue and by publishing it, the appellant had rendered himself liable to be punished under s. 500, I.P.C.

It appears that on July 2,2/23, 1957, the punjab Government issued a Press note in which it was averred that certain Urdu Dailies from
Jullundur were indulging in mischief and false propaganda, alleging complicity of a Minister's son in smuggling on the border. The Press
note alleged that this was done with a view to malign the Government and to cause suspicion in the mind of public. The Punjab Government
categorically denied the said allegation. The Press note added that the papers which were publishing the said false reports should come out
openly with the name of the son of the Minister instead of repeatedly publishing things in a vague and indirect manner, and that they should
not take shelter behind anonymity and should net be afraid of the consequences of the publication of these allegations. The Press note
concluded with the statement that the Punjab Government had already taken steps to curb smuggling and they were determined to put it
down with a firm hand. It was in response to the challenge thus issued by the Punjab Government in its Press note that the appellant
published impugned statement which reads:

"My attention has been drawn to a Punjab Government Press Note categorically denying the complicity of a Minister's son in smuggling.
That Press Note also throws a challenge to some Urdu Dailies "to come out openly with the name of the son of the Minister" and then base
the consequences. I don't know whether the newspapers concerned will take up this is challenge of the Punjab Government or not, but as
one of those who have been naming that son of the Minister as one of the leaders of the smugglers from Public platform, I hereby name that
so, as Surinder Singh Kairon son of S. Partap singh Kairon, Chief Minister. And I do so determined to faceless consequences of the charge
being openly levied by me. I further allege that the son of our Chief Minister is not only a leader of smugglers but is responsible for a large
number of crimes being committed in the Punjab. But because the culprit happens to be Chief Minister's son the cases are always shelved
up.
If the Punjab Government accepts this challenge, it should do so by appointing an independent committee of impartial Judges from outside
the Punjab and then let us see who has to face the consequences. If the Punjab Government dare not do so, I would not mind serving a term
in Jail for having had the courage to come out with the truth. May I bring it to the notice of Punjab Government that Chief Minister's son is
being discussed in almost every Punjabi house. but people are afraid of talking about him in public lest they be punished for that."

It is this statement which has given rise to the present criminal proceedings.

After this statement was published, Mr. Ajaib Singh, Senior Superintendent of Police, Amritsar, issued a statement on the 25th July, 1957,
which was published in the "Tribune" on the 26th July. By this statement, Mr. Ajaib Singh assured the people that persons concerned in
smuggling cases had been interrogated and he was satisfied that the allegation that some Minister's son was involved in smuggling was false
and inaccurate. To this statement, the appelLant issued a rejoinder which was published in the "Hind Samachar", which is an Urdu Daily of
Jullundur, on July 27, 1957. Then, followed the complaint which was filed by the complainant on August 17, 1957. That, shortly stated, is
the background of the present criminal proceedings. The complaint was filed in the court of the Magistrate, First Class, Tar, Taran.
Thereafter, the appellant moved this Court under s. 527 of the Criminal Procedure Code for the transfer of the said case from the court of
the Magistrate where it had been tiled. This Court directed on October 4, 1957, that the case in question should be remitted to the Punjab
High Court so that it should be transferred by the said High Court from the court of the Magistrate at Tarn Taran to a court of Sessions in
Delhi. That is how the case was transferred to the court of the Additional Sessions Judge, Delhi, and was tried by him. In support of his
complaint, the complainant examined himself and led evidence of three other witnesses. The purport of the oral evidence led by the
complainant was to show that the complainant was a person of status and good reputation, was carrying on business and had suffered in
reputation and character by the defamatory statement published by the appellant.

When the appellant was examined under s. 342, Cr. P.C., he told the learned Judge that he would prefer to file a detailed written statement.
Later, he did file his written statement and made several pleas against the charge levelled against him by the complainant. In substance, he
alleged that the allegations made by him in his impugned statement were true and he had published the said allegations in the interest of
public good. In other words, he claimed the protection of the First Exception to s. 499, IPC. He also pleaded that the imputation which he
had made against the complainant had been made in good faith and for public good. Thus, he also claimed the protection of the Ninth
Exception to s. 499, IPC.

In support of his defence the appellant wanted to summon 328 witnesses and a large number of documents. The trial court allowed  him to
summon 35 witnesses in all, but eventually he examined only 20 defence witnesses. He also produced several documents.

After considering the oral and documentary evidence produced before him, the learned trial Judge came to the conclusion that the words
used by the appellant in his statement, which was published in the Papers, were defamatory per se, and he held that the appellant had failed
to make out a case either under the First Exception or under the Ninth Exception. In the result, he convicted the appellant and sentenced him
to one year's simple imprisonment.

The appellant then preferred an appeal before the Punjab High Court, challenging the correctness and propriety of the order of conviction
and sentence passed against him by the learned trial Judge. Before the appellate Court, the appellant claimed the protection of the Ninth
Exception only and did not press his case that he was entitled to the protection of the First Exception as well. He also urged that he had been
materially prejudiced inasmuch as the trial Judge had not given him a fair and proper opportunity to lead his evidence both oral and
documentary. The learned single Judge, who heard his appeal, considered the arguments urged before him on behalf of the appellant and
came to the conclusion that the appellant had failed to prove his claim that the impugned statement fell within the scope of the Ninth
Exception to s. 499, IPC. He took the view that the appellant had "completely failed to substantiate the plea of good faith." The material
which had been placed before the trial Judge in support of defence of good faith was, according to the High Court, of a very flimsy
character and could not sustain the plea. It may be pointed out at this stage that the High Court found that in case the appellant had proved
good faith, it would not have felt any difficulty in coming to the conclusion that the publication of the impugned statement was for the
public good. But since, according to the High Court, good faith had not been proved, the appellant was not entitled to claim the protection
of the Ninth Exception. Then, as regards the grievance made by the appellant that he had not been given a reasonable opportunity to lead his
evidence, the High Court held that the said grievance was not well-founded. In that connection, the High Court referred to the fact that
though the trial Judge had allowed the appellant to examine 35 witnesses, the appellant examined only 20 witnesses, and it observed that the
large mass of documentary evidence which had been produced by the appellant did not serve any useful or material purpose even for the
defence of the appellant; and so the contention that prejudice had been caused to him by the failure of the learned trial Judge to give him a
reasonable opportunity to lead evidence was rejected by the High Court. In the result, the High Court confirmed the order of conviction
passed against the appellant by the trial Judge, but ordered that instead of undergoing one year's simple imprisonment, the appellant shall
undergo three months' simple imprisonment and pay a fine of Rs. 2,000. In default of payment of fine, he was directed to  undergo three
months' simple imprisonment. It is against this order that the appellant has come to this Court by special leave.

Norma1ly. we would not have examined the correctness of the finding recorded by the High Court in respect of the appellant's plea of good
faith. because that is a finding made by the High. Court on appreciating oral and documentary evidence and as it happens. the said finding
confirms the view taken by the trial Judge himself. Whether or not good faith has been proved by an accused person who. pleads in his
defence the Ninth Exception to a charge of defamation under s. 500. IPC. would be a question of fact and even if it is assumed to be a mixed
question of fact and law, if the courts below make a concurrent finding on such a question. this Court generally does not re-examine the
matter for itself while exercising its jurisdiction under Art. 136 of the Constitution. But in the present case. we cannot accept the finding of
the High Court. because it is plain that in dealing with the question of good faith the High Court has misdirected itself materially on point of
law. Section 499 of the Code defines defamation. It is unnecessary to set out the said definition. because it is common ground that the
impugned statement published by the appellant is per se defamatory. and so. we must proceed to deal with the present appeal on the basis
that the said statement would harm the reputation of the complainant. Exception 9 to s. 499 provides that it is not defamation to make an
imputation on the character of another. provided the imputation be made in good faith for the protection of the interest of the person making
it. or for any other person. or for the public good. In the present case. the ingredient of public good is satisfied. and the only question which
arose for decision in the court below and which arises before us. is whether the imputation can be said to have been made in good faith.
There is no doubt that the requirements of good faith and public good have both to be satisfied. and so. the failure of the appellant to prove
good faith would exclude the application of the Ninth Exception in his favour cven if the requirement of public good is satisfied. This
position is not disputed by Mr. T.R. Bhasin who appears for the appellant.

Mr. Bhasin, however. contends that in appreciating the evidence of the appellant and his arguments in respect of his good faith. the High
Court has clearly misdirected itself. because it has expressly observed that in discharging the onus of providing good faith. it is necessary to
remember that the pica of good faith must be proved "as strictly as if the complainant were being tried for the offenses imputed to him." The
High Court has added that the accused pleading justification virtually becomes the accuser. and that is why the burden has been placed by
law upon him both in England and in India. The learned Judge of the High Court made his point still clearer with the observation that in
cases of criminal defamation. an accused has not only to justify the whole of his libel. but the plea taken has to be proved as strictly as if the
complainant was being prosecuted for the offence. The same observations have been repeated by the learned Judge in several places in his
judgment. Mr. Bhasin contends that the approach which the learned Judge has adopted in dealing with the plea raised by the appellant under
Exception 9 is clearly erroneous. In cur opinion, Mr. Bhasin is right. It is true that under  s. 105 of the Evidence Act, if an accused person
claims the benefit of Exceptions, the burden of proving his plea that his case falls under the Exceptions is on the accused. But the question
which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on
an accused person who claims the benefit an exception is exactly the same as the nature and extent of the onus placed on the prosecution in
a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he
is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That. no doubt. is the test
prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can
be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person
is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a
preponderance of probability." As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to
discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has at all stages of the
case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the
accused, he is not. in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he
succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original
onus that never shifts, i.e., that of establishing, on the whole case, guilt beyond a reasonable doubt. It will be recalled that it was with a view
to emphasising the fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution, that Viscount Sankey in
Woolmington v. Director of Public Prosecutions(1) observed that "no matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
This principle of common law is a part of the criminal law in this country. That is not to say that if an Exception is pleaded by an accused
person, he is not required to justify his plea; but the degree and character of proof which the accused is expected  furnish in support of his
plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. In this
connection, it may be relevant to refer to the observations made by Humphreys J. in R.v. Carr-Braint(1): "Lord Hailsham, L.C., [in
Sodeman v.R. [1936] 2 All E.R. 1138] was in agreement with the decision of the majority of the Supreme Court of Canada, in R.v. Clark
[(1921) 61 S.C.R. 608] where Duff J. in the course of his judgment, expressed the view that the necessity for excluding doubt contained in
the rule as to the onus upon the prosecution in criminal. cases might be regarded as an exception rounded upon considerations of public
policy. There can be no consideration of public policy calling for similar stringency in the case of an accused person endeavoring to
displace a rebuttable presumption." In R.v. Corr-Braint(1), a somewhat similar question arose before the Court. In that case, the appellant
was charged with the offence of corruptly making a gift or loan to a person in the employ of the War Department as an inducement to show,
or as a reward for showing, favour to him. This charge was laid under thePrevention of Corruption Act, 1916, and in respect of such a
charge, s. 2 of the Prevention of Corruption Act, 1916, had provided that a consideration shall be deemed to be given corruptly unless the
contrary is proved. The question which arose before the Court was; what is the accused required to prove if he wants to claim the benefit of
the exception? At the trial, the Judge had directed the jury that the onus of proving his innocence lay on the accused and that the burden of
proof resting on him to negative corruption was as heavy as that ordinarily resting on the prosecution. In other words, the Judge in substance
told the jury that the accused had to prove his innocence beyond a reasonable doubt. The Court of Criminal Appeal held that this direction
did not correctly represent the true position in law. According to the Court of Appeal, the onus on the accused was only to satisfy the jury of
the probability of that which he was called upon to establish, and if he satisfied the jury that the probability was that the gift was made
innocently, the statutory presumption was rebutted and he was entitled to be acquitted.

What the Court of Criminal Appeal held about the appellant in the said case before it is substantially true about the appellant before us. If it
can be shown that the appellant has led evidence to show that he acted in good faith, and by the test of probabilities that evidence proves his
case, he will be entitled to claim the benefit of Exception Nine. In other words, the onus on an accused person may well be compared to the
onus on a party in civil proceedings. and just as in civil proceedings the court trying an issue makes its decision by adopting the test of
probabilities, so must a criminal court hold that the plea made by the accused is proved if a pre-

1 [1943] 2 All. E.R 156.

ponderance of probability is established by the evidence led by him. We are, therefore, satisfied that Mr. Bhasin is entitled to contend that
the learned Judge has misdirected himself in law in dealing with the question about the nature and scope of the onus of proof which the
appellant had to discharge in seeking protection of Exception Nine. There is another infirmity in the judgment of the High Court, and that
arises from the fact that while dealing with the appellant's claim for protection under the Ninth Exception, the learned. Judge has
inadvertently confused the requirements of Exception One with those of Exception Nine. The First Exception to  s. 499 is available to an
accused person if it is shown by him that the impugned statement was true and had been made public for the public good. In other words,
the two requirements of the First Exception are that the impugned statement must be shown to be true and that its publication must be
shown to be for public good. The proof of truth which is one of the ingredients of the First Exception is not an ingredient of the Ninth
Exception. What the Ninth Exception requires an accused person to prove is that he made the statement in good faith. We will presently
consider what this requirement means. But at this stage, it is enough to point out that the proof of truth of the impugned statement is not an
element of the Ninth Exception as it is of the First; and yet, in dealing with the appellant's case under the Ninth Exception, the learned Judge
in several places, has emphasised the fact that the evidence led by the accused did not prove the truth of the allegations which he made in
his impugned statement. The learned Judge has expressly stated at the commencement of his judgment that the appellant had not pressed
before him his plea under the First Exception, and yet he proceeded to examine whether the evidence adduced by the appellant established
the truth of the allegations made in his impugned statement as though the appellant was arguing before him his case under the First
Exception. In dealing with the claim of the appellant under the Ninth Exception, it was not necessary, and indeed it was immaterial, to
consider whether the appellant strictly proved the truth of the allegations made by him.

That takes us to the question as to what the requirement of good faith means. Good faith is defined by s. 52 of the Code. Nothing, says s. 52,
is said to be done or believed in 'good faith which is done or believed without due care and attention. It will be recalled that under
the General Clauses Act, "A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently
or not." The element of honesty which is introduced by the definition prescribed by theGeneral Clauses Act is not introduced by the
definition of the Code; and we governed by the definition prescribed by s. 52 of the Code. So, in considering the question as to whether the
appellant acted in good faith in publishing his impugned statement, we have to enquire whether he acted with due care and attention. There
is /B(N)3SCI--3 no doubt that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good
faith under the Ninth Exception. Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his
impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an
important role. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of
good faith. But it must be remembered that good faith does not require logical infallibility. As has held by the Calcutta High Court in the
matter of the Petition of Shibo Prosad Pandah(1), in dealing with the question of good faith, the proper point to be decided is not whether
the allegations put forward by the accused in support of the defamation are in. substance true, but whether he was informed and had good.
reason after due care and attention to believe that such allegations were true.

Another aspect of this requirement has been pithily expressed by the Bombay High Court in the case of  Emperor v. Abdool Wadood
A htned(2). "Good faith", it was observed "requires not indeed logical infallibility, but due care and attention. But how far erroneous actions
or statements are to be imputed to want of due care and caution must, in each case, be considered with reference to the general
circumstances and the capacity and intelligence of the person whose conduct is in question." "It is only to be expected", says the judgment,
"that the honest conclusions of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by
sectarian zeal and untrained to habits of precise reasoning. At the same time, it must be borne in mind that good faith in the formation or
expression .of an opinion, can afford no protection to an imputation which does not purport to be based on that which is the legitimate
subject of public comment."

Thus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay
down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each case what is the nature of the
imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there
any malice in his mind when he made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story
that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in
deciding the plea of good faith made by an accused person who claims the benefit of the Ninth Exception. Unfortu-

(1) I.L.R. 4 Cal. 124.

(2) I.L.R. 31 Born. 293.

nately, the learned Judge has rejected the plea of the appellant that he acted in good faith, at least partly because he was persuaded to take
the view that the evidence led by him did not tend to show that the allegations contained in his impugned statement were true. This naturally
has, to some extent, vitiated the validity of his finding.

It also appears that the learned Judge was inclined to take the view that the elaborate written statement filed by the appellant nearly ten
months after he had been examined under s. 342, should not be seriously considered, and that the appellant failed to make out his case of
good faith at the early stage of the trial. Indeed. the learned Judge has passed severe strictures against the contents of the written statement
and has blamed the appellant's lawyer for having advised him to make these contentions. In support of his finding that written statements of
this kind should be discouraged and cannot be seriously taken into account, the learned Judge had referred to two decisions of this Court.
One is the case of Tilkeshwar Singh and others v. The State of Bihar(1), where this Court was called upon to consider the validity of the
argument urged before it that there had not been a proper examination of the appellants under s. 342, and so, their conviction should be
quashed. In rejecting this argument, this Court pointed out that when the appellants were examined under s. 342, they said they would. file
written statements, and in the statements subsequently tiled by them, they gave elaborate answers on all the points raised m the prosecution
evidence. That is why this Court observed that the appellants had not at all been prejudiced by reason of the fact that all the necessary
questions were not put to them under s. 342. It is in this connection that this Court incidentally, observed that s. 342 contemplates an
examination in court and the practice of filing statements is to be deprecated. But that is not a ground for interference unless prejudice is
established. The learned Judge has read this observation as laying down a general principle that the filing of a written statement by an
accused person should be deprecated and the plea made by him in such a written statement need not, therefore, be seriously considered,
because they are generally the result of legal advice and are no better than afterthoughts. We do not think that the observation on which the
learned Judge has based himself in making this criticism justifies his view. In many cases, the accused person would prefer to file a written
statement and give a connected answer to the questions raised by the prosecution evidence. Indeed, s. 256(2)of the Cr. P.C., provides that if
an accused person puts in a written statement, the magistrate shall file it with the record. If the written statement is filed after a long delay
and contains pleas which can otherwise be legitimately regarded as matters of after-thought, that no doubt would affect the value of the
pleas taken in the (1) [1955] 2 S.C.R. 1043.

written statement. But we do not think that it would be possible to lay down a general rule that the written statement filed by an accused
person should not receive the attention of the court because it is likely to have been influenced by legal advice. In our opinion, such a
distrust of legal advice would be entirely unjustified. The other decision the learned Judge has referred to is in the case of  Sidheswar
Ganguly v. State of West BengalC). In that case, this Court has observed that there is no provision inthe Code of Criminal Procedure for a
written statement of the accused being filed at the Sessions stage, and it is in respect of written statements filed at the Sessions stage that it
has made the further cornmeal that in a case tried by the learned Sessions Judge with the help of the Jury, if such a statement is allowed to
be used by the Jury, it may throw the door open to irrelevant and inadmissible matter and thus throw an additional burden on the presiding
Judge to extricate matter which was admissible from a mass of inadmissible statements which may have been introduced in the written
statement. In the present case, we are not dealing with a statement filed at the Sessions trial properly so called, and so, we need not pause to
consider the effect of these observations.

In the present case, the written statement is an elaborate document and it gives the version of the appellant in great detail. In considering the
question as to whether the allegations made in the written statement could be dismissed as no more than an afterthought, we cannot ignore
the fact that at the very commencement of the proceedings, the appellant gave a list of 328 witnesses and called for a large number of
documents, and as we will presently point out the witnesses whom he examined and some of the documents which he had produced, tend to
show that the appellant had received information at the relevant time which supported his plea that the allegations which he was making
against the complainant appeared to him to be true; otherwise, it is not easy to understand how the appellant could have given a list of
witnesses and called for documents to show either that the allegations made by him were true, or that in any event. in making the said
allegations he acted in good faith and for the public good. If the evidence led by the appellant as well as the nature of the cross-.
examination to which he subjected the complainant and his witnesses are taken into account, it would be difficult. we think to reject his plea
of good faith on the ground that the written statement was filed very late and the pleas taken in it are an after-thought. It is because of these
infirmities in the judgement under appeal that we allowed Mr. Bhasin to take us through the evidence in this case. We ought to add that Mr.
Anand, who appeared for the complainant, fairly conceded that having regard to the fact that the learned Judge had misdirected himself in
law, the appellant would be entitled to request this Court to examine the evidence for itself before it accepted the conclusion of the learned
Judge on the question of appellant's good faith.

(1)[1958] S.C.R. 749.

Before we proceed to refer to the broad features of the evidence, it would be relevant to mention one fact. The appellant was at the relevant
time the State Secretary of the Punjab Praja Socialist Party. He is a public worker and belongs to an active political party. He had stated that
there was no animns in his mind against the complainant and his father, and that is not seriously disputed. Malice in that sense must,
therefore. be eliminated in dealing with the appellant's plea. It is quite true that even if the appellant was not actuated by malice, it would
not be possible to sustain his plea of good faith merely because he made the impugned statement as a public worker and he can claim that he
was not actuated by personal malice against the complainant. Absence of personal malice may be a relevant fact in dealing with the
appellant's plea of good faith, but its significance or importance cannot be exaggerated. Even in the absence of personal malice. the
appellant will have to show that he acted with due care and attention.

There is another fact which must also be borne in mind. The statement which the accused published was in response to the challenge issued
by the Government of Punjab. It is not early to understand why the Punjab Government thought it necessary to issue a Press statement in
regard to allegations which were made by the Urdu papers against a Minister's son. But the Punjab Government appears to have entered the
arena and issued a challenge to the newspapers in question, and it was in response to this challenge that the appellant published the
impugned statement. In this statement, the appellant requested the Punjab Government to appoint an independent Committee of impartial
Judges to investigate the matter, and he undertook to prove the truth of his charge if an independent committee was appointed. In that
connections. he stated that he wished to bring it to the notice of the Punjab Government that the Chief Minister's son is being discussed in
almost every Punjabi house, but people were afraid of talking about him in public lest they be punished for that. That is the genesis of the
impugned statement.

The two defamatory statements made by the appellant are that the complainant is the person against whom the allegations are made in the
Press, and that he is not only a "leader of smugglers but is responsible for a large number of crimes being committed in the Punjab." The
statement added that "because the culprit happens to be the Chief Minister's son, the cases are always shelved up." The question which calls
for our decision is: has the appellant shown that he acted in good faith when he made an imputation against the complainant that he was the
leader of the smugglers and was responsible for a large number of crimes being committed in Punjab'? In dealing with this question, we
ought to take a broad survey of the evidence led by the appellant and the background in which the impugned statement came to be made. It
appears that before the impugned state-

ment was made, newspapers had been publishing reports against a Minister's son without naming him. Some Members of the Punjab
Legislative Assembly had also made similar statements on the floor of the House.

The appellant examined some witnesses. Jagat Narain, who is an M.L.A. was one of them. He stated that in the year 1956,gold smuggling
had increased on the Amritsar border and that he derived his knowledge from the newspapers. He said he had received complaints orally
and in writing about the gold smuggling on the border and these suggested the complicity of a Minister's son in smuggling. When he was
asked whether he could name the informants, he stated that he would not like to name them lest they get into trouble. Sajjan Singh is
another witness whom the appellant examined He was the Parliamentary Secretary of the Praja Socialist Party. He stated that the appellant
had visited Amritsar area in 1957 and he had told the appellant about the large scale smuggling in the border area. He had also told him that
Hazara Singh, Shinghara Singh, Budha Singh and Tara Pandit were smugglers and some of the Members of the Legislative Assembly were
helping the smugglers and that the police did not take any action against Hazara Singh because of his connection with the complainant This
witness had seen Hazara Singh and the complainant moving together in connection with the election campaigns of 1952 and 1957. The
election of 1957 took place some time in February,1957; and sO, the evidence of this witness shows that he had given the information about
the complainant's conduct in respect of Hazara Singh and other matters in about February, 1957.

That takes us to the evidence of Kulwant Rai of village Sirhali, District Amritsar. Against this witness, cases were pending under s. 8(1) of
the Foreign Exchange Regulation Act, s. 5(3) of the Land Customs Act and s. 19 of the Sea Customs Act. It has also been alleged against
him that 140 to las of smuggled gold had been found in his possession. He was also prosecuted by Mr. Dhir, Magistrate, Tarn Taran, under
the Indian Arms Act. ,red prosecution under the Indian Opium Act was also pending against him. It appears that two cases against him were
withdrawn because a communication dated May 18, 1957, was addressed by the Home Secretary to the Punjab Government to the District
Magistrate Amritsar, directing him to withdraw the two cases pending against him. The letter required the District Magist:ate to take action
in that behalf immediately. It is remarkable that an affidavit was filed by Kulwant Rai dated May 21, 1957, wherein he stated that the Chief
Minister had passed an order on May 7, 1957, for the withdrawal of the cases against him and that the Government order in that behalf
would be received by the court very soon. This means that Kulwant Rai knew about the decision of the Government to withdraw cases
against him even before the said decision was communicated to the District Magis-

trate and then to the trial Magistrate. It is also significant that on June 9, 1957, when the proceedings under s. 514 Cr. P.C., were fixed for
hearing against Kulwant Rai, he was absent from court and a telegram was received by the Magistrate that Kulwant Rai was ill and his
absence should be excused. This telegram was sent not by Kulwant Rai but by the complainant. The complainant no doubt denied that he
had sent such a telegram, but the High Court has found that in all probability, the telegram had been sent by the complainant. The
complainant also did not admit that he was a friend of Kulwant Rai. There again, the High Court was not prepared to accept the
complainant's version. On this evidence, it seems plain that the complainant knew Kulwant Rai very well and did not stop short of helping
him actively by sending a telegram to the Magistrate to excuse Kulwant Rai's absence on the date of hearing of the case against him. From
the evidence of Kulwant Rai whom the appellant had to examine to support his plea of good faith. it is not difficult to infer that Kulwant Rai
was charge-sheeted in respect of several offences, and an allegation had been made against him that he was connected with gold smuggling.
If the appellant knew that the complainant was friendly with such a character, would he be justified in claiming that in giving expression to
his belief that the complainant was hand in glove with Kulwant Rai, a gold smuggler, he was acting in good faith'? That is the question
which has to be answered in the present case. In dealing with this aspect of the matter, the learned Judge no doubt found that the material on
the record was enough to justify the conclusion that there was friendship between Kulwant Rai and the complainant and' that the
complainant had sent a telegram to the Magistrate on Kulwant Rai's behalf, but he thought it had not been proved that in fact, Kulwant Rai
had been engaged in gold smuggling. No doubt, a case was pending against him for gold smuggling; but the learned Judge held that the
pendency of a criminal case does not necessarily prove that the charge levelled against Kulwant Rai was in fact true. It is this approach
which is substantially responsible for the learned Judge's conclusion that good faith is not proved in respect of the allegations made by the
appellant that the complainant was a friend and leader of gold smugglers. The learned Judge overlooked the fact that in dealing with this
aspect of the matter, the pertinent enquiry is not whether, in fact, the charge of gold smuggling had been proved against Kulwant Rai and
whether it is shown satisfactorily that the complainant was assisting him in that behalf. What is pertinent to enquire is, if the appellant knew
about this evidence at the relevant time and he believed that the complainant was assisting Kulwant Rai in respect of his gold smuggling
activities, could he be said to have acted in good faith or not when he published the statement in that behalf?

We may incidentally point out that we cannot overlook the fact that the appellant experienced some difficulty in proving his case in the
present proceedings, because witnesses were not willing to come out and give evidence, though they may have given that information to the
appellant before he made his statement. Take for instance, the case of Hardin Singh of village Patti. It appears that this witness was arrested
by the police on June 19, 1959 as a suspect smuggler and he was kept in the lock-up from June 19 to June 25, 1959 and was thereafter let
off. According to him, he was arrested because he had been summoned as a defence witness in the present case. Let us then consider the
case of Hazara Singh and the association of the complainant with him. Hazara Singh comes from the same village to which the family of the
complainant belongs, and yet, he was not prepared even to admit that he knew the complainant or his family. The learned Judge realised
that Hazara Singh was not prepared to speak the truth at least on some points, and so, he observed that he was willing to accept the
appellant's case that the complainant, Sadhu Singh and Major Naurang Singh, Senior Superintendent of Police were on friendly terms.. He,
however, thought that it was not clearly shown on the record whether Hazara Singh was entered as a badminton in the police registers and
that there was also no convincing evidence on record to show that Hazara Singh was a gold smuggler. The learned Judge referred to the
evidence which showed that the complainant and Hazara Singh were moving together during the election days and were friendly with each
other; but that. according to the learned Judge, did not prove the truth of the statement that Hazara Singh was a gold smuggler and that the
complainant was his friend. This approach again is partly based upon importing into the discussion the consideration about the truth of the
statement which would be relevant under the First Exception but which is not material under the Ninth Exception. In connection with
Hazara Singh, and Kulwant Rai, there are two documents to which our attention has been invited by Mr. Bhasin. These documents show
that Kulwant Rai was treated on the Police record as a notorious smuggler and habitual offender, and Hazara Singh was treated as a bad
character and his name was borne on register No. 10, and his history sheet was opened at No. 110 A Basra Alif. There has been some
argument before us at the Bar on the question as to whether these two documents are duly proved. Mr. Art and for the complainant has
strongly urged that these documents are not proved. and in any event. no reliance was placed on them in the courts below. This latter
contention is undoubtedly true; but the contention that the documents were not proved in the present case strikes us as none too strong,
because these documents have been included in the paper book after the lists made by the respective advocates for the parties were
exchanged and the index was finally settled with their approval in the Punjab High Court. The learned Advocate for the State or the
complainant did not object to the inclusion of these two documents in the record, and this showed that they were treated as duly forming
part of the record. It does appear that Mr. Dhir, the Resident Magistrate, Kaithal (D.W. 27) has produced the whole file of the case in
respect of the proceedings taken under s.5/4. Cr. P.C., and Mr. Bhasin contends that along with the file, the two documents in respect of
Kulwant Rat were received. Mr. Anand no doubt suggested that it was not shown under what statutory provisions. these documents are
kept; but since the admissibility of these documents does not appear to have been challenged in the courts below, we think oil is too late to
raise this technical point at this stage. However. in dealing with the appeal. we are prepared to exclude from our consideration evidence
furnished by these two documents. Even without them. there is enough evidence to show that the complainant was friendly with Kulwant
Rat and Hazara Singh, and on the whole. we are inclined to take the view that if the appellant knew about the complainant's friendship and
active association with these two persons and had other information about the activities of these two persons. it cannot be said that he did
not act in good faith when, in response to the challenge issued by the Punjab Government. he came up with the impugned statement and
sent it for publication in the Press. Then, in regard to the other allegation that the complainant was concerned with the commission of
offences in Punjab, we may refer to the evidence led by the appellant to show that in making this charge, he acted in good faith. The witness
to whose evidence reference has been made by Mr. Bhasin in respect of this part of the case is Mr. K.K. Dewett, who was the Principal of
the Punjab University College, Hoshiarpur, between June, 1952 and April, 1958. The incident to which this witness deposed' took place in
1953. At this time. the complainant had left the college at Hoshiarpur. On January 19, he went to that college to get his certificate Principal
Dewett in his evidence did not support the appellant in his suggestion that the complainant had behaved in a criminal way and had
threatened to assault the students in the college on that occasion. But the confidential report made by him on January 22 shows that in the
witness-box Principal Dewett hesitated to disclose the whole truth. This report unambiguously indicates that the complainant threatened
several students with a stick. and it speaks of two or three incidents that took place which created a considerable excitement and commotion
among the student community in the college. In this report, the Principal, in fact, describes the situation as very ugly. and he refers to the
fact that the students went on strike and passed resolutions, demanding the rustication of the complainant from the University and also
protesting against inaction and partiality of the Principal himself. This confidential report was further inquired into, and the documents in
respect of this enquiry are also on the record. The students seem to have demanded that the complainant should be arrested. because they
were afraid' that he would collect his friends and cause mischief to them. 'Ultimately, the Vice-Chancellor made a report to the
Chancellor that having examined the matter, he came to the conclusion that the complainant was "a bit bumptious and throws his weight
about in a way which fellow-students find irritating". He added "How one wishes that the sons of men holding exalted offices in the State
would behave in a way consistent with the dignity of their parents". The learned Judge does not appear to have taken into account these
reports, but has substantially relied on the oral evidence of the Principal himself. Even so, he has recorded his conclusion that the evidence
shows juvenile indiscretion on the part of the complainant but no juvenile delinquency and certainly no "crime in the sense of the libelous
imputation made". In dealing with this part of the imputation again, the learned Judge should have asked himself the question as to whether
on the material of the kind disclosed by the confidential report made by the Principal, would a person of ordinary prudence acting bonafide
in good faith be not justified in coming to the conclusion that the complainant was not only throwing his weight about, but was also
threatening assaults in the college, because he thought he would be immune from legal process by virtue of his position? The fact that the
appellant called for several documents and gave a list of witnesses as soon as he entered on his defence, shows what he knew at the relevant
time, and his plea that he acted in good faith has to be judged on the basis that he made the imputations because he had material of this kind
in his possession.

It is true that the appellant has stated in his written statement that several persons came and reported to him against the complainant, and
amongst them were included some high police officials as well; but having regard to the fact that the complainant's father occupied the
position of the Chief Minister of Punjab. they were not willing to come forward and_ give evidence in court. In fact, the appellant had
requested the Punjab Government in his impugned statement to appoint a commission of inquiry and had stated that if a commission of
inquiry was appointed, he would prove his charges against the complainant. It is in the light of these circumstances, that we have to decide
whether the appellant has proved that he acted in good faith or not. In dealing with this question. we cannot overlook or ignore the
probabilities on which the appellant relies, the surrounding circumstances to which he has referred and the actual evidence which he has led.

Incidentally, we may mention two other documents on which Mr. Bhasin has relied. On February 20, 1957. the complainant wrote a letter to
'Major Sahib' (SSP). In that letter, he told the Major Sahib to grant leave to S. Gurdial Singh No. 1725 posted at Chowki Khosa Burj, and he
added that it was very urgent, and asked him to do it immediately. Similarly, on June 3, 1956, the complainant wrote a letter to the
Executive Officer, Taran Taran, in which he stated "our 10/12 trucks loaded with wood will be reaching Taran Taran one or two daily.
Therefore, you please instruct your Moharrir on the Jandiala-Amritsar road that he

253. should not create any obstruction regarding octroi". It would be noticed that the complainant had been writing to Government servants
in respect of matters falling within their authority as such servants; and that shows, according to Mr. Bhasin. that the complainant was
throwing his weight about even in matters with which he had no connection at all.
We have carefully considered the evidence to which our attention was drawn by Mr. Bhasin as well as Mr. Anand, and we have come to the
conclusion that the High Court was in error in holding that the appellant had failed to show that he acted in good faith when he published
the impugned statement. As we have already stated, it has been found by the High Court and it is not disputed before us that the publication
of the impugned statement was for the public good; and so, our conclusion is that the appellant is entitled to claim the protection of the
Ninth Exception. Before we part with this appeal, we ought to add that this matter came before this Court for hearing on the 1st September,
1964, and an interlocutory judgment was delivered by which certain documents were called for. On that occasion, Mr. Bhasin had pressed
before this Court his contention that the trial Judge was in error in not calling for certain documents which the appellant wanted to rely on,
and in upholding the plea of privilege made by State Govt. in respect of certain other documents. We wanted to satisfy ourselves whether
the documents on which Mr. Bhasin wanted to rely were relevant and whether the plea of privilege claimed by the State was justified. Some
of these documents have been received by this Court in pursuance of our interlocutory judgment. But we do not think it necessary to
consider this matter, because the documents which Mr. Bhasin wanted to be produced or proved might at best. if they are admitted, be of
help to him to show that the allegations made by the appellant are true. to him however is a plea which fails under the First Exception and
since the appellant did not claim the benefit of that Exception in the High Court, we do not think it would be open to the appellant to press
his point that we should examine the question as to whether the trial Judge erred in not allowing the appellant to bring these documents on
the record. That is why we did' not look at these documents and have not considered the question raised by Mr. Bhasin at the time when the
interlocutory judgment was delivered in this case. In other words, the appellant is not allowed to raise his plea that the allegations made by
him in the impugned statement are true.

Even so. in view of our conclusion that the appellant has succeeded in showing that he is entitled to the protection of the Ninth Exception
to s. 499, the appeal must be allowed and the order of conviction and sentence passed .against the appellant set aside.the fine imposed on the
appellant has been paid by him, the same should be refunded to him.

Appeal allowed.