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Sec. 8 (3) of the RI for three years & fine Act, 2005 Rs.1,000/-, in default additional RI for three months.

Sec. 8 (5) of the RI for five years & fine of Act, 2005 Rs.1,000/-, in default additional RI for three months.

Sec. 39 (2) of the RI for five years & fine of Act, 1967 Rs.1,000/-, in default additional RI for three months.

4. Mr. Ram Jethmalani arguing for appellant Binayak Sen submits that although at the stage of considering suspension of sentence and grant of bail, the appellate Court is not required to consider entire evidence in detail, but the appellate Court is required to consider prima facie existence of legal evidence against the appellant showing commission of offence by him.

8. Mr. Ram Jethmalani contends that by written defence appellant Binayak Sen has categorically explained the entire situation, the circumstances of his working, his meeting with Narayan Sanyal, possession of documents and fabrication of documents by police authorities. This is evidence against the prosecution and unless it is proved false, same is admissible in evidence under the law. Mr. Ram Jethmalani further contends that every circumstance which the prosecution proposes to rely and which may be treated against the accused is required to be put to the accused for obtaining his explanation/answer under Section 313 of the Code, and if the circumstances are not put before the accused under Section 313 of the Code, same cannot be used against the accused. Mr. Ram Jethmalani also contends that if it is considered that the appellant has criticized the action and activities of the government or police, and even if he had gone to the extent of saying that the Government missionaries have failed, then also same would be within the ambit of Right to Freedom of speech and expression protected under Articles 19 (1) (a) & 19 (2) of the Constitution of India.

9. Mr. Ram Jethmalani placed reliance in the matter of Sharad Birdhichand Sarda v. State of Maharashtra2 in which the Supreme Court has held that circumstances not put to the appellant in his statement under Section 313 of the Code must be completely excluded from consideration because the appellant did not have any chance to explain them. Mr. Ram Jethmalani further placed reliance in the matter of Kedar Nath Singh v. State of Bihar3 in which the Supreme Court has held that "the explanations appended to the main body of S. 124A 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 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. Viewed in that light, the provisions of the sections should be so construed as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence".

10. Mr. Ram Jethmalani further submits that possession of handbooks, publications or publication of hand book containing the view of any writer by itself is not the act of sedition punishable under Section 124A of the IPC, unless they incite violence or disturb law and order or create public disorder or have the intention or tendency to do so. Mr. Ram Jethmalani also placed reliance in the matter of Manubhai Tribhovandas Patel and others v. State of Gujarat and another4 in which by placing reliance in the matter of Kedar Nath (supra), Gujarat High Court has held that words, deeds or writings constitute sedition punishable under Section 124A of the IPC only if they excite violence or disturb law and order or create public disorder or have the intention or tendency to do so. Gujarat High Court further held that possession of a book containing 184 extracts of speeches from Mao Tse Tung expounding his philosophy about communism by itself is not sedition punishable under Section 124A of the IPC.