Hardik Bharatbhai Patel vs State Of Gujarat & on 27 October, 2015

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Gujarat High Court

Hardik Bharatbhai Patel vs State Of Gujarat & on 27 October, 2015

HC-NIC Page 1 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT 1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused seeks to invoke the inherent powers of this Court praying for quashing of the First Information Report registered as C.R. No.I135 of 2015 with the Amroli Police Station, Surat of the offence punishable under Sections 124A, 115, 153A, 505(2) and 506 of the Indian Penal Code.

2 The case of the prosecution may be summarized as under:

2.1 The first informant is the Deputy Commissioner, Zone 3, Surat City. It is the case of the first informant that past about four months, there is a strong agitation going on in the State of Gujarat as regards the reservation for the members of the Patidar Patel Community. The applicant accused is the Convener of a committee known as the 'Patidar Anamat Andolan Samiti'. The applicant accused in his capacity as the Convener of the organization declared 'Bandhs', convened public meetings and various other programmes as a part of the agitation.

According to the organization, the Patidar Patel community is being neglected by the State Government in respect of both education and employment. In the last few months, the State of Gujarat, more particularly, the cities like, Ahmedabad, Surat, Mehsana and Rajkot witnessed worst of the riots, in which, extensive damage was caused by the members of the organization as well as the people of the Patidar Page 2 of 42 HC-NIC Page 2 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT community and others to the public properties by torching the police stations, public buses, etc. Few innocent people lost their lives. On 02.10.2015 i.e. a day prior to the seditious statement alleged to have been made by the applicant accused herein which is the subject matter of controversy, one police officer lost his life in the riots. 2.2 It is the case of the prosecution that with a view to maintain law and order and to immediately curb the prejudicial activities of the members of the organization and others, action was taken by the police in the form of arrest, etc. Many prosecutions have been initiated against the persons responsible for rioting, arson, etc. One Piyush Desai, a resident of Surat, is one of the accused persons against whom a complaint has been lodged. He was arrested. Piyush Desai declared that if appropriate steps were not taken by the State Government against the erring police officers and if justice was not done with the people of the patidar community, then he would self immolate himself. Mr. Desai also demanded that all the prosecutions instituted against the supporters of the agitation should be withdrawn by the State Government at the earliest. In the wake of such threats given by Shri Piyush Desai, the applicant accused herein thought fit to visit him at his residence situated at D404, Krishna Complex, Mota Varachha, Amroli, Surat, on 3rd of October, 2015. At the time of his visit at the house of Shri Vipul Desai, there were hundreds of other people along with the applicant accused. It Page 3 of 42 HC-NIC Page 3 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT is the case of the prosecution that the media and officials of a T.V. Channel were also present along with the applicant accused. The gravamen of the charge against the applicant herein is that he advised or rather made a statement before Shri Vipul Desai that "kill 2 to 5 police officers, otherwise, son of a Patel would not die". Such statement or advice is alleged to have been given by the applicant accused to Shri Desai before hundreds of people who were present at the house of Shri Desai and also before the reporters of the TV9 Gujarati news channel. It is the case of the prosecution that the entire conversation between the applicant accused herein and Shri Desai was videographed and was telecasted on the local TV channels. It is the case of the prosecution that the advice given to Shri Desai by the applicant, in his capacity as convener of the organization or rather the statement made by the applicant, constitutes an offence under Section 124A of the Indian Penal Code. It is the case of the prosecution that the situation, at a point of time, had gone beyond control and if the police would not have acted promptly and appropriate action would not have been taken, then probably the whole State of Gujarat would have got into the grip of riots. It is the case of the prosecution that the agitation is gaining momentum and the applicant accused herein as emerged himself to be a strong leader. The people have started following him blindly. It is the case of the prosecution that there is lot of hatredness towards the entire police Page 4 of 42 HC-NIC Page 4 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT force in the State of Gujarat because the police took appropriate legal action against the rioters and also the other people responsible for causing extensive damage to the public properties. 2.3 It is the case of the prosecution that the statement or the advice alleged to have been given by the applicant accused is a direct revolt against the Government of Gujarat.

3 SUBMISSIONS ON BEHALF OF THE APPLICANT ACCUSED:

3.1 Mr. B.M. Mangukiya, the learned counsel appearing for the applicant accused vehemently submitted that the First Information Report lodged against his client is nothing, but an act of mala fide on the part of the State Government. Mr. Mangukiya submitted that even if the entire case of the prosecution is accepted as true, including the statement alleged to have been made by his client in the presence of media and others, would not constitute an offence of sedition punishable under Section 124A of the Indian Penal Code. He submitted that none of the ingredients to constitute the offence punishable under Section 124A are spelt out on the plain reading of the F.I.R. He submitted that in a democratic country like India, voice can be raised against any Government, if the Government is not found acting in the interest of a particular community. He submitted that the agitation for the reservation could not be said to be, in any manner, unlawful. He Page 5 of 42 HC-NIC Page 5 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT submitted that there is not a whisper of an allegation that the applicant herein, by his prejudicial activities, could be said to have promoted enmity between different groups on grounds of religion, etc. 3.2 Mr. Mangukiya submitted that none of the ingredients even to constitute the offence punishable under Section 115 of the Indian Penal Code i.e. abetment of offence punishable with death or imprisonment for life, if offence not committed, are spelt out. In the same manner, according to Mr. Mangukiya, none of the ingredients to constitute the offence punishable under Section 505(1)(b) i.e. the statements conducing to public mischief are spelt out on the plain reading of the F.I.R. He submitted that Section 506 of the Indian Penal Code on the face of the F.I.R. could not have been invoked as one of the offence alleged to have been committed by the applicant accused.

3.3 Mr. Mangukiya submitted that the incidents of riots and arson were triggered and engineered by the police and about 8 (eight) members of the Patidar community lost their lives. He submitted that the police is guilty of murder and many F.I.Rs. have been registered against the erring police officers which are being investigated by none other than the State C.I.D. (Crime).

3.4 Mr. Mangukiya further submitted that Mr. Vipul Desai made Page 6 of 42 HC-NIC Page 6 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT himself very clear in his statements before the concerned police officer that the applicant had never uttered or spoken any such words referred to above, which according to the prosecution, constitute an offence of sedition. He submitted that assuming for the moment without admitting that the statement in question was made or the advice was given by the applicant to Shri Desai, it did not disturb any public order, and nothing of that sort happened.

3.5 One of the main submissions of Mr. Mangukiya is that Section 124A of the Indian Penal Code speaks about hatredness or disaffection towards the Government establishment by law and giving advice to a person to kill 2 to 5 police officers even in the presence of media and others cannot be said to be a revolt against the State Government.

According to Mr. Mangukiya, it cannot be said that it was an act on the part of the applicant to subvert the State Government. To put it in other words, the submission of Mr. Mangukiya is that the words "Government established by law in India" would not include any agency of the State Government like the police force.

3.6 In such circumstances referred to above, Mr. Mangukiya prays that the First Information Report deserves to be quashed and his client be ordered to be released forthwith.

3.7 In support of his submissions, Mr. Mangukiya has placed reliance Page 7 of 42 HC-NIC Page 7 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT on the decision of the Supreme Court in the case of Kedar Nath Singh v. State of Bihar [AIR 1962 SC 955].

4 SUBMISSIONS ON BEHALF OF THE STATE:

4.1 Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State vehemently opposed this application and submitted that no case worth the name could be said to have been made out for quashing of the First Information Report. He submitted that the plain reading of the First Information Report, prima facie, discloses commission of a cognizable offence. Mr. Amin submitted that the words uttered by the applicant herein or rather the advice given to Shri Desai in presence of the media and hundreds of other persons could be said to be a direct revolt against the State Government. Mr. Amin submitted the words spoken by the applicant herein have been videographed. The entire conversation between the applicant and Shri Desai in the presence of other persons, including media was telecasted on the local TV channels across the State. The statement has the effect of bringing hatredness or contempt or excites disaffection towards the Government established by law. Mr. Amin submitted that the words uttered by the applicant have implicit in them the idea of subverting the Government by means of violence.

4.2 Mr. Amin submitted that the intention of the applicant in making such statement or giving such advice was to see that the message Page 8 of 42 HC-NIC Page 8 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT reaches to the ears of the members of the Patidar community. He submitted that the investigation is at the threshold. Many vital aspects are yet to be investigated. Mr. Amin submitted that whether the visit of the applicant to the house of Shri Desai was preplanned or not is also being investigated.

4.3 Mr. Amin submitted that the expression "the Government established by law" would include the police force of the State within the purview of Section 124A since the police is one of the human agencies through which the Government acts. Mr. Amin submitted that the available materials would go to show that the ingredients of the above stated provisions of law are clearly disclosed, and there is no material to show that the first information is mala fide, frivolous or vexatious. He submitted that when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during investigation and the evidence led in the trial Court which decides the fate of the accused person.

4.4 Mr. Amin submitted that many other F.I.Rs. have been registered against the applicant at different places. Mr. Amin also pointed out that the Investigating Officer has collected the Compact Disc containing the videographed conversation between the applicant accused and Shri Page 9 of 42 HC-NIC Page 9 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT Desai in the presence of many other people. The Compact Disc has been sent to the F.S.L. for the purpose of verifying the authenticity of the same. Mr. Amin submitted that the Compact Disc itself is a primary evidence against the applicant accused. He also pointed out that in the course of police remand, the applicant was subjected to voice Spectrographic Test with his consent. The report of such test is still awaited. Mr. Amin submitted that the applicant accused is responsible for the loss of lives of many innocent persons and is also responsible for causing extensive damage to the public properties worth crores of rupees. One police officer also lost his life in the riots.

4.5 Mr. Amin submitted that the right to Freedom of Speech and Expression, as embodied in Article 19(1)(A) of the Constitution of India, is not an absolute right. It is always open to any person to criticize the policy of the State Government or even raise voice for making a legitimate demand which may include reservation, but no person can take law in his own hands and indulge in any act which amounts to subverting the Government established by law. He submitted that the very idea of subverting the Government by violent means attracts the provisions of Section 124A of the Indian Penal Code.

4.6 Mr. Amin submitted that the ingredients to constitute the offence Page 10 of 42 HC-NIC Page 10 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT punishable under Section 153A of the Indian Penal Code are also spelt out. In the same manner, the necessary ingredients to constitute the offence punishable under Section 505 of the Indian Penal Code are also spelt out, more particularly, Section 505(1)(b).

4.7 In such circumstances referred to above, Mr. Amin prays that there being no merit in this application for quashing the F.I.R., the same be rejected.

4.8 In support of his submissions, Mr. Amin has relied upon the very same decision of the Supreme Court relied upon on behalf of the applicant accused i.e. Kedar Natha Sing (supra).

         ●       ANALYSIS:  

         5      Having heard the learned counsel appearing for the parties and

having gone through the materials on record, the only question that falls for my consideration is whether the First Information Report should be quashed.

6 Let me first look into the principal accusation against the applicant as regards the offence of sedition punishable under Section 124A of the Indian Penal Code. Section 124A reads as under:

"124A. Sedition.--Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection Page 11 of 42 HC-NIC Page 11 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT towards, 102 [***] the Government established by law in 103 [India], [***] shall be punished with 104 [imprisonment for life], 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 exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.--Comments expressing disapprobation of the admin istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section."

7 Section 124A deals with 'Sedition,' Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a 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 tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and laws of the country. 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 Page 12 of 42 HC-NIC Page 12 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder. [See:Nazir Khan and others v. State of Delhi, 2003 Cri. L.J. 5021(1)].

8 It is the fundamental right of every citizen to have his own political theories and ideas and to propagate them and work for their establishment so long as he does not seek to do so by force and violence or contravene any provision of law. The demand for reservation for the members of the Patidar Patel community by itself is not an offence. It is open to the members of the Patidar Patel community to seek reservation, if available in law or the State Government, by way of a policy decision, deems fit to provide. It is also open to demand for reservation by peaceful means, ceaselessly fighting public opinion that might be against them and opposing those who desired the continuance of the existing order of the society and the Government. What is not permissible in order to attain such object is any act which have the effect of bringing or which attempt to bring into hatredness or contempt or excites or attempts to excite disaffection towards the Government established by law. As observed by the Supreme Court in Kedar Nath Singh (supra) that the "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. The continued existence of Page 13 of 42 HC-NIC Page 13 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT the Government established by law is an essential condition of the stability of the State. That is why "sedition", as the offence in Section 124A, has been characterized, comes to Chapter VI relating to offences against the State. The question which arises for consideration is whether the statement made or the words spoken or the advice given by the applicant to one Shri Desai in the presence of many of people and media can be said to be seditious, that is to say of such a nature that the same would be punishable under Section 124A of the Indian Penal Code. The determination of this question depends on the true scope and ambit of Section 124A which defines the wellknown offence of sedition with which many in this country were only too familiar during the days of British rule. The offence of sedition is the resultant of the balancing of two contending forces : namely, freedom and security. Freedom and security in their pure form are antagonistic poles : one pole represents the interest of the individual in being afforded the maximum right of selfassertion free from Governmental and other interference while the other represents the interest of the politically organized society in its selfpreservation. It is impossible to extend to either of them absolute protection for as observed by Mr. Justice Frankfurter, "absolute rules would inevitably lead to absolute exceptions and such exceptions would eventually corrode the rules". It is now a generally accepted postulate that freedom of speech and expression which includes within its fold Page 14 of 42 HC-NIC Page 14 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT freedom of propagation of ideas lies at the foundation of all democratic organizations, for without free political discussion, no public education so essential for the proper functioning of the processes of popular Government is possible. It is the matrix, the indispensable condition, of nearly every other form of freedom and because it has the capacity of unfolding the truth, it is indispensable to the democratic process. Now freedom of such amplitude might involve risks of abuse but as pointed out by Patanjali Shastri, J., in Romesh Thapper v. State of Madras, AIR 1950 SC 124 "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 noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits";" (quoted in Near v. Minnesotta, (1930) 283 US 697. While conceding the imperative necessity of freedom of speech and expression in its full width and amplitude, it is necessary at the same time to remember that the first and most fundamental duty of every Government is the preservation of order, since order is a condition precedent to all civilization and the advance of human happiness. The security of the State and organized Government are the very foundation of freedom of speech and expression which maintains the opportunity for free political discussion to the end that Government may be responsive to the will of Page 15 of 42 HC-NIC Page 15 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT the people and it is, therefore, essential that the end should not be lost sight of in an overemphasis of the means. The protection of freedom of speech and expression should not be carried to an extent where it may be permitted to disturb law and order or create public disorder with a view to subverting Government established by law. It is, therefore, necessary to strike a proper balance between the competing claims of freedom of speech and expression on the one hand and public order and security of the State on the other. This balance has been found by the Legislature in the enactment of Section 124A which defines the offence of sedition for our country. [See: Manubhai Tribhovandas Patel and others v. State of Gujarat [1972 Cri. L. J. 373] 9 The interpretation of Section 124A has over the years gone through various vicissitudes and changes. The first case where it came up for consideration was the famous Bangobasi Case; QueenEmpress v. Jogendra Chunder (1892) ILR 19 Cal 35. The Section as it was in force at that time was the unamended Section which did not contain the words "brings or attempts to bring into hatred or contempt" and had only one composite explanation instead of the present three. The words of the Sec. which, therefore, fall for construction were :

"Whoever............ excites or attempts to excite feelings of disaffection to the Government established by law." Sir Comer Petheram. C.J. in his Page 16 of 42 HC-NIC Page 16 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT charge to the jury gave a very wide interpretation to the word "disaffection". He interpreted it to mean "contrary to affection" and observed that it would be sufficient for the purposes of the Section that the words used are calculated to excite feelings of illwill against the Government, Strachey, J. gave a further expansion to this meaning in Queen Empress v. Bal Gangadhar Tilak, (1898) ILR 22 Bom 112, when he said : "I agree with Sir Comer Petheram in the Bangobasi case that disaffection means simply the absence of affection" which he explained by saying : "It means hatred, enmity, dislike, hostility, contempt and every form of illwill to the Govt. 'Disloyalty' is perhaps the best general term, comprehending every possible form of bad feeling to the Government". He proceeded to observe, interpreting the Section : "The offence consist in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small... even if he ("that is the accused") neither excited nor intended to excite any rebellion or outbreak of 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".

This charge to the jury was expressly approved by the Judicial Committee of the Privy Council while dismissing the application preferred by Bal Gangadhar Tilak for special leave to appeal against his Page 17 of 42 HC-NIC Page 17 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT conviction by the Bombay High Court. This interpretation gave a very wide sweep to Section 124A and made it a formidable Section. It was obviously an interpretation calculated to reserve power in the British Government to prosecute their political opponents and stifle opposition to the British rule. It reflected the anxiety of the British to retain their stranglehold on this country and continue their exploitation by crushing all forms of opposition by making it penal even to excite feelings of ill will against the Government, as if by punishing words or deeds calculated to produce illwill, they could command goodwill from a subject people. [See: Manubhai Tribhovandas Patel (supra)]. 10 This broad and sweeping interpretation of Section 124A held the field until 1942, when in the leading case of Niharendu Dutt Majumdar v. Emperor, AIR 1942 F.C. 22. Sir Maurice Gwyer. C.J., an eminent British Judge who presided over the Federal Court of India in its early years, reviewed the position and attempted to restrict the scope of the Section by interpreting it according to the "external standard" applied by Judges in England. He recognised the great change that had taken place in the concept of Government since the days of enactment of the Section and since its interpretation in Bal Gangadhar Tilak's case (1898) ILR 22 Bom 112. He quoted with approval the following passage from the speech of Lord Summer in Bowman v. Secular Society Ltd., (1917) AC Page 18 of 42 HC-NIC Page 18 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT 406 : "The words as well as the acts which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before" and pointed out that "many judicial decisions in particular cases which were no doubt correct at the time when they were given may well be inapplicable to the circumstances of today." He felt that in the changed circumstances of the country "bad feeling" or ''illwill" towards the Government could not be regarded as the basis of sedition. He pointed out that the language of Section 124A must be interpreted in the light of the broad principles underlying the concept of sedition as formulated in English law and referring to the classic statement of these general principles in Mr. Justice Fitzgerald's charge to the jury in Rex v. Sullivam (1868) 11 Cox. C.C. 54. he concluded by saving that the offence of sedition "is the answer of the State to those who, for the purpose of attacking or subverting it, seek........................ 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 Page 19 of 42 HC-NIC Page 19 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT 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 Governments, but because where Government and the law cease to be obeyed and 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 that is their intention or tendency. "The Federal Court thus emphasized the need for dynamic interpretation of the section appropriate to the modern concept of Government and accepted a narrower interpretation than the one given in the earlier cases by laving down that unless the acts or words have a tendency to create public disorder, they cannot be considered seditious, as sedition is essentially an offence against public order. [See: Manubhai Tribhovandas Patel (supra)].

11 But this progressive and enlightened view taken by the Federal Court was overruled by the Judicial Committee of the Privy Council in King Emperor v. Sadashiv Narayan. 74. Ind App 89 : (AIR 1947 PC 82). The Judicial Committee held that incitement to disorder is not an essential element of the offence of sedition but it is enough to excite or attempt to excite feelings of disaffection, that is, illwill against the Page 20 of 42 HC-NIC Page 20 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT Government. They quoted with approval the relevant passage from Mr. Justice Strachey's charge to the jury in Bal Gangadhar Tilak's case, (1898) ILR 22 Bom 112 a passage from which we have also quoted earlier, and observed that they would adopt the language of Mr. Justice Strachey "as exactly expressing their view in the present case."[See: Manubhai Tribhovandas Patel (supra)].

12 The result was that when our Constitution was enacted there were two conflicting interpretations of Section 124A before the Indian Courts. One was the conservative interpretation placed by the Privy Council which gave wide power to the Government to curb free speech and expression even if it was calculated merely to produce bad feelings or feelings of illwill against the Government without any disturbance of public order : the other was the liberal interpretation accepted by the Federal Court which limited the right of the Government to interfere with free speech and expression and permitted its free and unrestricted exercise so long as it did not incite public disorder or have the intention or tendency to do so. The Supreme Court was called upon to consider in Kedar Nath v. State of Bihar, AIR 1962 SC 955, which of these rival interpretations must be accepted as the correct interpretation, for on the determination of this question depended the validity of Sec. 124A. If the interpretation placed by the Privy Council were the correct Page 21 of 42 HC-NIC Page 21 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT interpretation. Section 124A would be clearly ultra vires as offending Article 19(1)(a) since on such interpretation it would be outside the permissible limits of legislative restrictions which may be imposed on the fundamental right of free speech and expression under Article 19(2). It would not be possible to say on such interpretation that the Section has been enacted "in the interest of public order" : the restrictions, imposed by the section would go far beyond what is required "in the interest of public order." The interpretation approved by the Federal Court would on the other hand, make the section valid, for on that interpretation there would be direct nexus between the restrictions imposed by the Section and interest of public order and the Section would be saved by Article 19(2). The Supreme Court, after an exhaustive review of the case law on the subject accepted the interpretation placed by the Federal Court and held Section 124A to be valid. Sinha C.J. speaking on behalf of the Supreme Court gave the following reasons for preferring the interpretation accepted by the Federal Court :

".........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 of 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 clause (2) of Article 19. Sections 124A and 505 are clearly violative of Article 19(1)(a) of the Constitution. But then we have to see how far the saving clauses, namely. Clause (2) of Article 19 protects the sections aforesaid. Now as already pointed out, in terms of the amended Clause (2), quoted above, the expression 'in the interest of.........public order' are words of great amplitude and are much more comprehensive than the expression 'for the maintenance of as observed by this Court in the case of Virendra v. State of Page 22 of 42 HC-NIC Page 22 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT Punjab, 1958 SCR 308 at p. 317 : (AIR 1957 SC 896 at p. 899). 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 Article 19(1)(a) read with Clause (2). It is wellsettled 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) Bengal Immunity Co. Ltd. v. State of Bihar.

19552 SCR 603 : AIR 1953 SC 661 and (2) R.M.D. Chamarbaugwala v. Union of India, 1957 SCR 930 : AIR 1957 SC 628. 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."

It must therefore, be now taken as wellsettled that words, deeds or writings constitute sedition punishable under Section 124A only if they incite violence or disturb law and order or create public disorder or have the intention or tendency to do so. It is in the light of this interpretation of Sec. 124A that I have to determine whether the advice or the words Page 23 of 42 HC-NIC Page 23 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT uttered constitute seditious matter punishable under Section 124A. 13 Although I have quoted a passage from the judgment in the case of Kedar Nath Singh (supra), as referred to above, I deem it necessary to quote the entire paragraphs 24, 25 and 26 as under:

"24. In this case, we are directly concerned with the question how far 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 subclause (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 subclause in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."

It his 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. Now, the expression "the Government established by law" has to be distinguished from the persons for the time being engaged in carrying on the administration.

"Government established by law" is the visible symbol of the State. The very Page 24 of 42 HC-NIC Page 24 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT 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 if S. 124 A which have the effect of subverting the Government of bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the felling 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 feeling 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..

25. 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 qua 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 against becoming a licence for vilification and condemnation of the Government established by law, in words which incite Page 25 of 42 HC-NIC Page 25 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT 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 1942 FCR 38 : (AIR 1942 FC

22), 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. 19 of 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.

26. 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 cl. (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 an the expression "for the maintenance of",, as observed by this Court in the case of Virendra v. State of Punjab, 1958 SCR 308 at p. 317 : ((S) AIR 1957 SC 896 at p.

899). 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 Page 26 of 42 HC-NIC Page 26 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT 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 (l) (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 an 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) Bengal Immunity Co. Ltd. v State of Bihar, 19552 SCR 603 :

((S) AIR 1955 SC 661) and (2) R. M. D. Chamarbaugwala v. Union of India, 1957 SCR 930 : ((S) AIR 1957 SC 628). 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."

14 I should be mindful of the fact that the case in hand is one wherein the accused is praying for quashing of the F.I.R. at a stage when the investigation is in progress. I should look into the allegations levelled in the F.I.R., as they are without adding or subtracting anything from it. I am of the view that a speech or a statement, in which the speaker exhorts the persons, who are listening to him, to resort to violence, Page 27 of 42 HC-NIC Page 27 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT prima facie, could be said to be intended to excite disaffection towards the established Government and amounts to an offence under Section 124A of the Indian Penal Code. To put it in other words, to advise a person to persuade to violence as a means of attaining a particular goal or seeking revenge is not less objectionable then advising that person to commit violence himself for that purpose. In either case, the advice is to pursue a course of action, it is calculated to disturb the tranquility of the State. It is a recommendation to oppose the established Government by force.

15 I am not impressed by the submissions of the learned counsel appearing for the applicant that the advice alleged to have been given by the applicant to Shri Desai in the presence of the media and other people to kill 4 to 5 police officers had nothing to do so far as the Government is concerned. I am not impressed by the submission canvassed on behalf of the learned counsel appearing for the applicant that a police force at best could be termed as one of the agencies of the State Government, and any attack of any nature on the police force would not amount to subverting the Government established by law.

16 WHAT MEANING SHOULD BE ATTACHED TO THE EXPRESSION "THE GOVERNMENT ESTABLISHED BY LAW":

16.1 The Supreme Court in Kedar Nath Singh (supra) observed that the expression "the Government established by law" should be Page 28 of 42 HC-NIC Page 28 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT distinguished from the persons for the time being engaged in carrying on the administration.

16.1 This expression means Government rule and its representatives as such, the existing political system as distinguished from any particular set of administrators. The established authority which governs the country and administrators its public affairs includes the representatives to whom the task of government is ens trusted. It denotes "the person or persons authorized by law to administer Executive Government in any part of India...the feelings, which it is the object of section 124A to prohibit, may be excited towards the Government in a variety of ways, ... it is possible to excite such feelings towards the Government by an unfair condemnation of any of its services. Whether in a particular case the condemnation of any service is sufficient to excite any feeling of hatred or contempt or disaffection towards Government by law established in India, must depend upon the nature of the criticism, the position of the service in the administration and all the other circumstances of the case. It would be a question of fact to be determined in each case with reference to its circumstances." In this sense the 'Government' includes not only the Government of India but also Local Government. Government does not mean the person or persons in charge of administration for the time being. It means the person or persons collectively, in succession, who are authorized to Page 29 of 42 HC-NIC Page 29 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT administer Government for the time being. One particular set of persons may be open to objection, and to assail them and to attack them and excite hatred against them is not necessarily exciting hatred against the Government because they are only individuals, and are not representatives of that abstract conception which is called Government.

There is a clear distinction between the Government and the individual officers employed under the Government. Words bringing the former into hatred or contempt constitute sedition, but similar words directed against the latter can only infringe the law of libel. There may be instances of criticism of subordinate officials that would not offend the rule "to bring into hatred or contempt or excite disaffection towards"Government and it is also easy to image instances that would. No general rule can be laid down. No substantial distinction can be drawn between the "Government established by law in India" and the "Executive Government.

[See:

1 Sundar lal (1919) 42 All 233 (FB); Kshiteeshchandra Ray Chaudhuri (1932) 59 Cal 1197.

2 See Bal G Tilak AIR 1916 Bom 9: 18 Cri LJ 567, 605; Dhrendra Nath Sen (1938) 2 Cal 672.

3 Besant (1916) 39 Mad 1085 (SB); Kshiteeshchandra Ray Chaudhuri (1932) 59 Cal 1197.

4 Per Batty J, In Bhaskar Balvant Bhopatkar (1906) 8 Bom LR 421, 438: 4 Cri LJ 1: 30 Bom 421.

5 Raj Pal (1922) 3 Lah 405 (SB) Page 30 of 42 HC-NIC Page 30 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT 6 Sat Parkash AIR 1941 Lah 165: 42 Cri LJ 682 .

7 See Anadabazar Patrika (1932) 60 Cal 408 (SB); Kshiteeshchandra Ray Chaudhuri (1932) 59 Cal 1197."

17 The Government established by law acts through human agency and admittedly, the police service or force is itself a principal agency for the administration and maintenance of the law and order in the State. When a person makes a statement or gives an advice to resort to violence by killing 4 to 5 police officers, he could be said to have criticized the police force or the service en bloc. In such circumstances, whether one could be said to have excited disaffection against the Government or not would be a pure question of fact and such question can be determined only after the entire picture is clear i.e. after the investigation is over and the chargesheet is filed. 18 In the aforesaid context, I may usefully refer to and rely upon the decision of the Bombay High Court. A Division Bench of the Bombay High Court in the case of Bal Gangadhar Tilak v. Emperor [ AIR 1916 Bombay 9] held as under:

"First, the, it was said that there could be no excitement or disaffection in these speeches, inasmuch as the the speaker openly and sincerely professed his loyalty to His Majesty the KingEmperor and the British Parliament. To that I have only to say that, as I read S. 124A, it is clear that to a charge of exciting disaffection towards the Government established by law in British India a profession, however sincere, of loyalty to His Majesty and Page 31 of 42 HC-NIC Page 31 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT the British Parliament is no answer whatever.

Secondly, it was contended that the speeches could not in law offend against S. 124 A, because, the speaker's attack was made not on the Government nomination but on the Civil Service only. That, I think, is not quite so in fact. But assuming it to be so, it affords no answer to the charge. For the government established by law acts through human agency, and admittedly the Civil Service is its principal agency for the administration of the country in times of peace. Therefore where, as here, you criticise the Civil Service en bloc, the question whether you excite disaffection against the Government or not seems to me a pure question of fact. You do so if the natural effect of your words, infusing hatred of the Civil Service, is also to infuse hatred or contempt of the established Government whose accredited against the Civil Service is. You avoid doing so if, preferring appropriate language of moderation, you use words which do not naturally excite such hatred of Government. It is, I think, a mere question of fact.

Passing now to the speeches themselves must be read as a whole. A fair construction must be put upon them, straining nothing either for the Crown or for the applicant, and paying more attention to the whole general effect than to any isolated words or passages. The question is whether upon such fair construction these speeches offend under S. 124A or not. Now, first, as as to the general aim of the speaker it is, I think, reasonably clear that in contending for what he describes as swarajya his object is to obtain for Indians an increased and gradually increasing share of political authority and to subject the administration of the country to the control of the people or peoples of India. I am of opinion that the advocacy of such an object is not per se a infringement of the law, nor has the learned Advocate General contended otherwise."

"It would be a question of fact to be determined in each case with reference to its circumstances. But as a mater of law it cannot be said that the condemnation of a particular service under the Government by law established in British India can never be sufficient to excite any of the feelings prohibited by S. 124A. Towards such Government. I now come to the question as to whether the publication of the matter contained in these speeches is punishable under S. 124A. It is quite clear that the speaker must not bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection towards, His Majesty or the Government established by law in British India; and it is also clear that even in the case of comments falling under Expln.2 or 3 of the section, this essential condition must be observed. In the present case Mr. Jinnah has laid great emphasis on the fact that throughout the speeches, the speaker has expressed his loyalty to His Majesty. But this cannot avail him. He is not charged with exciting disaffection towards His Majesty. The Crown case is Page 32 of 42 HC-NIC Page 32 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT that he has attempted to bring into hatred or contempt or to excite disaffection towards the Government established by law in British India; and it is no answer to this charge to say that he has expressed his loyalty to His Majesty."

19 The learned counsel appearing for the applicant made a submission that what is alleged to have been uttered or spoken by the applicant was just a whisper in the ear of Mr. Desai. He submitted that although the media was present along with other people at the residence of Mr. Desai, but the utterance was in such a manner that hardly any other person could have heard the same.

20 Mr. Amin, the learned Public Prosecutor, on the other hand, submitted that the conversation recorded in the Compact Disc which has been collected by the Investigating Officer makes the picture very clear that it was not just a whisper in the ear of Shri Desai, but the intention was that the other people should also hear and resort to the same act i.e. killing of the police officers. Mr. Amin submitted that when the Compact Disc would come on record, the picture will be more than clear. I may only say that it is too early for this Court to comment anything in this regard. Prima facie, it could be said that the words spoken or the statement alleged to have been made by the applicant herein in the presence of the media and other people would amount to exhortation to our public, more particularly, the members of the Patidar Patel Page 33 of 42 HC-NIC Page 33 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT community to resort to violence or create public disorder with a view to subverting the Government by law established in the State of Gujarat. The applicant herein may not have stated in so many words that the members of the Patidar Patel community should overthrow the lawfully established Government in the State of Gujarat by force or violence but when the attack is on the police force which is one of the most important agencies of the State Government, then a prima facie case under Section 124A could be said to be made out.

21 There is one more argument on behalf of the applicant accused. The argument proceeds that the statement may involve the commission of offence if it incites or tends to incite violence in a reasonably normal person and in this context, the reaction of an extra sensitive individual is irrelevant. There is hardly any justification to infer that the prevailing atmosphere at the time the statement made was such that the same is capable of being interpreted to incite or tend to incite violence or disturb the law and order and create disorder. It was submitted that the applicant herein never intended the consequences of the act of his statement nor did he suggest any overact even obliquely. His statement at best reflected his injured feelings towards the police force of the State. He cannot be taken to have committed any offence under Section 124A of the Indian Penal Code by publicly airing his resentment against the Page 34 of 42 HC-NIC Page 34 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT police in the State.

22 I am afraid, I am unable to agree with such submission because the law and order situation had deteriorated to a considerable extent. As I have pointed out earlier, many innocent persons lost their lives which included a police officer. Many Police Stations, Public buses, etc. were set on fire. Extensive damage was caused to the Government properties. In this background, it would be appropriate to infer at this primary stage from the text and tenor of the statement or the words spoken by the applicant that the same was intended and it did bring the Government in the contempt with the likelihood of eruption of violence and public disorder. In terms of the ratio of the decision of the Supreme Court in the case of Kedar Nath Singh (supra), the applicant has yet to undergo the trial, if the chargesheet is filed. The fact of the matter is that the chargesheet has not been filed till this date, and the investigation is still in progress. It may not be appropriate to dilate on the merit of this case so far as Section 124A is concerned.

23 Thus, I hold that a prima facie case is made out so far as the offence of sedition punishable under Section 124A is concerned. As I have observed, the picture will be more clear at the end of the investigation.

Page 35 of 42 HC-NIC Page 35 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT 24 The above takes me to consider whether the other offences, as alleged, could be said to have been made out.

25 Let me look into the applicability of Sections 153A and 505(2) of the Indian Penal Code is concerned.

26 Section 153A was amended by the Criminal and Election Laws (Amendment) Act 1969 Act No. XXXV of 1969. It consists of three clauses of which clauses (a) and (b) alone are material now. By the same amending Act subsection (2) was added to Section 505 of the Indian Penal Code. Clauses (a) and (b) of Section 153A and Section 505 (2) are extracted below :

"153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. (1) Whoever

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or illwill between different religious, racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or ....................................

shall be punished with imprisonment which may extend to three years, or with fine, or with both."

"505(2) Statements creating or promoting enmity, hatred or illwill between classes. Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other Page 36 of 42 HC-NIC Page 36 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT ground whatsoever, feelings of enmity, hatred or illwill between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both."

The common ingredient in both the offences is promoting feeling of enmity, hatred or illwill between different religious or racial or linguistic or regional groups or castes or communities. Section 153A covers a case where a person by "words, either spoken or written, or by signs or by visible representations" promotes or attempts to promote such feeling. Under Section 505(2), promotion of such feelings should have been done by making and publishing or circulating any statement or report containing rumour or alarming news. [See: Bilal Ahmed Kaloo v. State of Andhra Pradesh (1997 Cri. L. J. 4091] 27 The Supreme Court has held in Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : (1995 AIR SCW 2803) that mens rea is a necessary ingredient for the offence under Section 153A. Mens rea is an equally necessary postulate for the offence under Section 505(2) also as could be discerned from the words "with intent to create or promote or which is likely to create or promote" as used in that subsection. [See: Bilal Ahmed Kaloo (supra)] 28 The main distinction between the two offences is that while Page 37 of 42 HC-NIC Page 37 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT publication of the words or representation is not necessary under the former, such publication is sine qua non under Section 505. The words "whoever makes, publishes or circulates" used in the setting of Section 505(2) cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, any one who makes a statement falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction. But the same is the effect with Section 153A also and then that Section would have been bad for redundancy. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction.[See: Bilal Ahmed Kaloo (supra)] 29 The common feature in both the sections being promotion of feeling of enmity, hatred or illwill "between different" religious or racial or language or regional groups or castes and communities it is necessary that at least two such groups or communities should be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections. [See: Bilal Ahmed Kaloo (supra)] 30 In view of the above and having regard to the case of the Page 38 of 42 HC-NIC Page 38 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT prosecution, I am of the view that although it could be said that the members of the Patidar Patel community have been provoked, but such provocation has nothing to do with any other religion, race or linguistic or regional group or community. The police force of the State cannot be brought within the purview of the term "community". 31 The above takes me to consider the question about the applicability of Section 115 of the Indian Penal Code. Section 115 of the Indian Penal Code reads as under:

"115. Abetment of offence punishable with death or imprisonment for life if offence not committed Whoever abets the commission of an offence punishable with death or a [imprisonment for life], shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine:

if act causing harm be done in consequence. And if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.

Illustration A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the punishment of death or a [imprisonment for life]. Therefore A is liable to imprisonment for a term which may extend to seven years and also to a fine; and, if any hurt be done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to fine."

32 This section punishes the abetment of certain offences which are either not committed at all, or not committed in consequence of abetment, or only in part committed. Abetment under this section need Page 39 of 42 HC-NIC Page 39 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT not necessarily be abetment of the commission of an offence by a particular person against a particular person.

33 Three different states of act may arise after an abetment : (1) No offences may be committed. In this case the offender is punishable under this section or section 116 for the mere abetment to commit a crime.

(2) The very act at which the abetment aims may be committed, and will be punishable under sections 109 and 110.

(3) Some act different, but naturally flowing from the act abetted may be perpetrated, in which case the abettor will fall under the penalties of sections 111, 112 and 113.

34 Prima facie, a case for the offence punishable under Section 115 of the Indian Penal Code could be said to have been made out. The applicant accused is alleged to have instigated a person to commit the offence of murder punishable with death or imprisonment for life. The abetment under Section 115 of the Indian Penal Code need not necessarily be abetment of the commission of an offence by a person against a particular person.

35 The following necessary ingredients are prima facie spelt out:

         (1)    Abetment of the commission of an offence;
         (2)    The offence abetted is punishable with death or imprisonment for 
                life;


                                              Page 40 of 42

HC-NIC                                      Page 40 of 42     Created On Wed Oct 28 00:15:49 IST 2015
                R/CR.MA/19858/2015                                                 CAV JUDGMENT




         (3)    The   offence   abetted   was   actually   not   committed;   nor   any   any

hurt / injury was caused in pursuance / consequence of such abetment.

36 For the foregoing reasons, this application is partly allowed. The First Information Report so far as the offence punishable under Sections 153A, 505(2) and 506 of the Indian Penal Code is concerned, is ordered to be quashed. So far as the offence punishable under Sections 124A and 115 is concerned, the investigation should proceed further in accordance with law.

37 I clarify that all my observations should be construed as prima facie in nature and they should not be construed as any final opinion or expression so far as the offence of sedition and abetment is concerned. As I have stated above that the investigation is at a very delicate stage. The materials are yet being collected. The picture will be more clear if ultimately the Investigating Officer decides to file the chargesheet. 38 I am told that the applicant is in the judicial custody. If any bail application is filed by him, then such bail application shall be considered on its own merit, and while deciding the same, the Court concerned shall not be influenced, in any manner, by any of the observations made by this Court, except the fact that a prima facie case is made out so far as Page 41 of 42 HC-NIC Page 41 of 42 Created On Wed Oct 28 00:15:49 IST 2015 R/CR.MA/19858/2015 CAV JUDGMENT Sections 124A and 115 is concerned. It is needless to clarify that the principles of grant of bail and quashing of an F.I.R. are absolute distinct and different.

39 So far as the draft amendment is concerned, which was allowed vide order dated 21.10.2015, the relief prayed for therein, appears to have become infructuous. So far as the evidentiary value of the voice spectrum test is concerned, the same shall be considered by the Court concerned at an appropriate stage in accordance with law. 40 With the above this application is disposed of.

(J.B.PARDIWALA, J.) chandresh Page 42 of 42 HC-NIC Page 42 of 42 Created On Wed Oct 28 00:15:49 IST 2015

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