TaxTMI 
TaxTMI 
2021 (6) TMI 1203
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....d Sharma, AOR JUDGMENT UDAY UMESH LALIT, J. 1. This petition under Article 32 of the Constitution of India prays for following principal reliefs :- "a. Quash FIR No.0053 dated 06.05.2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh. b. Direct that henceforth FIRs against persons belonging to the media with at least 10 years standing be not registered unless cleared by a committee to be constituted by every State Government, the composition of which should comprise of the Chief Justice of the High Court or a Judge designated by him, the leader of the Opposition and the Home Minister of the State." 2. FIR No.0053 dated 06.05.2020 was registered pursuant to Complaint made by respondent No.3 herein to the following effect :- "On 30th March, 2020, Mr. Vinod Dua, in his show namely The Vinod Dua Show on YouTube, has made unfounded and bizarre allegations (details of particular moments are provided below) by stating following facts at 5 minutes and 9 seconds of the video, he has stated that Narendra Modi has used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds of the video, he claims that the govern....
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....ions 124-A, 268, 501 and 505 of the Indian Penal Code, 1860 (IPC). Unless strict action is taken, it will result in unrest in public and go against public tranquillity. Hence, you are requested to take strict appropriate legal action against Mr. Vinod Dua and punish him accordingly." 3. The FIR dated 06.05.2020 thus pointedly referred to two segments in the talk show uploaded on 30.03.2020 - one at 5 minutes 9 seconds and the other at 5 minutes 45 seconds and generally dealt with the drift of the assertions made by the petitioner in said talk show to submit that the actions on part of the petitioner amounted to offences punishable under penal provisions referred to in the FIR. The transcript of the relevant episode of the talk show has been placed on record and the translation of the relevant portions is :- "At present I am talking about the ongoing corona virus and whatever has happened in its context - how was our preparedness, when we were alerted and despite which why we were in slumber. When I refer to WE then I refer to the government. I present a small analysis on which a few things have been stated by P. Chidambaram in an article in the Indian Express, some of t....
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....the migrant labour which is a huge issue, the people who leave their distant villages to earn their livelihoods here, who are the backbone of the cities, who help in running our lives, our drivers, our daily wagers, construction workers, tailors, all those who do small odd jobs and somehow send money back home. There are certain states like Bihar which also run on money order economy where it caused huge disruption and who started returning home. When people started returning from Mumbai on 10 March, that should have been a big signal for the government about the effect the complete lockdown in the whole country can bring about but no lessons were learnt. Besides, police did not get any instructions about how to handle this, the face of brutality and inhumanity of the police was seen and now the face of the police is also seen while distributing food and also their face of shaming those not following the lockdown. These steps could have been taken earlier also because using force is not the only way of the police. 4. Certain factual developments that occurred after the registration of the FIR were noted in the Order dated 14.06.2020 passed by this Court as under :- "A N....
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....stances on record, we deem it appropriate to direct as under: (a) Pending further orders, the petitioner shall not be arrested in connection with the present crime; (b) However, the petitioner in terms of the offer made by him in his communication dated 12.06.2020, shall extend full cooperation through Video Conferencing or Online mode; and (c) The Himachal Pradesh Police shall be entitled to carry on the investigation including interrogation of the petitioner at his residence after giving him prior notice of 24 hours and complying with the Social Distancing norms prescribed during Covid-19 Pandemic. The affidavit in reply filed on behalf of the State shall indicate the steps taken during investigation and a complete Status Report shall be filed before the next date of hearing. The concerned Investigating Officer shall remain personally present in case the open Court hearing is resumed by this Court or shall be available in case the proceedings are taken up through Video Conferencing mode." 5. Some of the grounds raised in the instant writ petition relating to the prayers quoted hereinabove are: "A. Because the contents in the video i....
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....all on conviction, be punishable with imprisonment which may extend to one year or with fine." Thereafter, the affidavit indicated following steps taken by the Investigating machinery: "Having found that complaint disclosed cognizable offence, the FIR was registered. In respectful submission of the respondent, since a FIR discloses prima facie commission of cognizance offence, no interference may be warranted. That after registration of FIR, on 07.05.2020 the complainant was called in the Police Station but he did not appear as he was out of station. On 08.05.2020 complainant joined the investigation in the Police Station and produced one DVD containing telecast dated 30.03.2020 as referred in the FIR which was taken into possession by the Investigating Officer through seizure memo and statement of Sh. Ajay Shyam was recorded u/s 161 Cr. P.C. That on 11.05.2020, Investigating Officer visited Cyber Crime Police Station from where Notice u/sec 91 Cr. P.C. was sent to Google and YouTube through e-mail for obtaining information in respect to URL of the channel and URL of the post." 7. The original complainant (Respondent No.3) stated in his respon....
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....ns of Section 124A of the IPC [The Indian Penal Code, 1860] would not get attracted at all. C) As a journalist, the petitioner was entitled to and did nothing more than critical analysis of the functioning of the Government. D) The ingredients constituting offences under Sections 501 and 505 of the IPC3 were also not established. E) Consequently, the criminal proceedings initiated against the petitioner being abuse of the process and being violative of the fundamental rights guaranteed under the Constitution of India, the same be quashed. 10. In support of the second prayer made in the petition, Mr. Singh submitted: - In Jacob Mathew v. State of Punjab and Another [(2005) 6 SCC 1], this Court issued certain guidelines with regard to prosecution of Medical Professionals accused of rashness or negligence while discharging their professional duties; which decision was not only affirmed by the Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh and Others [(2014) 2 SCC 1] but this Court went on to explain that a preliminary inquiry could validly be insisted upon in certain categories of cases. The case of journalists a....
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....68 of 2020 (Alakh Alok Srivastava v. Union of India)] passed by this Court. B) The bar under Section 195 of the Code with respect to cases falling under Section 188 of the IPC would be relatable to the stage of cognizance by Court and not to anterior stages and as such the matter be allowed to be investigated into. C) Norms of Journalistic Conduct framed by the Press Council of India (2010 Edition) obliged the petitioner to check the facts and data thoroughly from authentic sources and only thereafter he could make any publication relating to the pandemic in a manner which was bereft of sensationalization or exaggeration. The conduct of the petitioner was completely wanting in this respect. Paragraph 39 of said Norms, on which reliance was placed, reads :- "39. Reporting on Natural Calamities (i) Facts and data relating to spread of epidemics or natural calamities shall be checked up thoroughly from authentic sources and then published with due restraint in a manner bereft of sensationalism, exaggeration, surmises or unverified facts. (ii) Natural or manmade hazards become disasters through acts of commission and omission of the....
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....ction 505 IPC3 and were within his Right of Free Speech and Expression guaranteed under Article 19 (1)(a) of the Constitution of India. B) The complainant along with the State brought down their case from Section 124-A and Section 505 to Section 188 IPC in their attempt to show that some cognizable offence was committed by the petitioner. The allegation that the petitioner disobeyed the order dated 31.03.20207 passed by this Court was rather absurd as the telecast was issued prior to the directions of this Court. C) The offences under the DM Act1 and Section 188 of the IPC were not made out and, in any case, in the absence of a complaint in terms of Section 60 of the DM Act1 and Section 195 of the Code, the submissions made by the respondents called for rejection. D) Further, the order dated 31.03.20207 gave liberty to the media to have a free discussion about the pandemic; and that there was no unverified news nor was there any disobedience by the Petitioner. The information in the telecast was based on the information available in the public domain. The interview of former Chief Statistician, Mr. Pronab Sen reported on 28.3.2020 and the notification dat....
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.... 3. It is also requested that provisions of the Guidelines issued in this regard, on the measures to be taken for containment of COVID-19 epidemic in the country, as annexure to MHA Order No.40-3/2020-D dated 24.03.2020 may be suitably disseminated amongst the public. All measures may be taken to allay apprehensions and maintain peace and tranquillity." g. On 26.03.2020 the PM had announced Pradhan Mantri Garib Kalyan Anna Yojna under which 5 Kg of Rice or wheat (according to regional dietary preferences) per person and 1 kg of dal would be provided to each family holding a ration card. This successful scheme covers 80 crore people and has now been extended till November 2020. It is recognised inter alia by the WHO as the largest food security programme in the world. h. Two days before impugned telecast by the Petitioner, the MHA issued Consolidated Guidelines on 28.03.2020. As per guidelines: "2. Offices of the State/Union Territory Governments, their Autonomous Bodies, Corporations, etc. shall remain closed. Exceptions: h. Agencies engaged in procurement of agriculture products, including MSP operations. i. 'Mandi....
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....c. While dealing with so sensitive subject on more than one occasion, it was incumbent upon the petitioner as a responsible journalist and by virtue of the Press Council Norms to keep himself abreast with Government orders, guidelines pertaining to the pandemic. Indeed, his telecast and written submission indicate that he had express knowledge of some Government notifications, issued prior to the telecast of 30.3.2020." 17. At the outset, we must consider whether the instant challenge raised through a petition under Article 32 of the Constitution and the prayers made in the petition can be entertained and considered specially when the investigation into the alleged crime has not yet resulted in a report under Section 173 of the Code. 18. It is the contention of the respondents that the petitioner be relegated to the remedies under the Code rather than entertain the instant petition under Article 32 of the Constitution. Since the first prayer in the petition seeks quashing of the FIR, reliance is placed on the decision of this Court in Arnab Ranjan Goswami vs. Union of India and Others [(2020) 14 SCC 12] in which the relief was granted against multiple FIRs arising from the sa....
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....priate for the Court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR No. 164 of 2020 under investigation at N.M. Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the petitioner's liberty are governed by the CrPC. Despite the liberty being granted to the petitioner on 24-4-2020 [Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 51], it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC, which we hereby do. The petitioner has an equally efficacious remedy available before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-p....
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....of India and Others [(2004) 4 SCC 666] (ii) Rini Johar and Another vs. State of Madhya Pradesh and Others [(2016) 11 SCC 703] (iii) Monica Kumar and Another vs. State of Uttar Pradesh and Others [(2017) 16 SCC 169] (iv) Priya Prakash Varrier and Others vs. State of Telangana and Another [(2019) 12 SCC 432] (v) Laxmibai Chandaragi B. and Another vs. State of Karnataka and Others [(2021) 3 SCC 360] 20. In Priya Prakash Varrier, the nature of relief claimed was set out in paragraph 1 of the decision whereafter this Court relied upon the dictum of the Constitution Bench in Ramji Lal Modi vs. State of U.P. [AIR (1957) SC 620] that for an offence to come within the parameters of Section 295-A of the IPC3, the crime ought to have been committed with deliberate and malicious intention of outraging the religious feelings of a class. Finding such element to be completely absent, the relief prayed for was granted by this Court. The relevant observations of this Court were :- "1. In the instant writ petition preferred under Article 32 of the Constitution of India, the petitioners, namely, the actor, producer and director of the movie, have prayed....
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....nsults i.e. those which may lead to public disorders as well as those which may not. The law insofar as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of clause (2) of Article 19, but insofar as it covers the remaining variety will not fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void. We are unable, in view of the language used in the impugned section, to accede to this argument. In the first place clause (2) of Article 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression "in the interests of public order", which is much wider than "for maintenance of" public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction "in the interests of public order" although in some cases those activities may not actually lead to a breach of public o....
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....ble legislative action affecting the fundamental right guaranteed by Article 19(1)(a) of the Constitution. The emphasis was laid on the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. ..... ..... ..... 15. In view of the aforesaid, we allow the writ petition and quash FIR No. 34 of 2018. We also direct that no FIR under Section 154 or any complaint under Section 200 of the Code of Criminal Procedure should be entertained against the petitioners because of the picturisation of the song. However, there shall be no order as to costs." Notably, this decision rendered by a three Judge Bench of this Court was in the context of right claimed under Article 19(1)(a) of the Constitution, where the offence alleged was one under Section 295-A of the IPC3. Apart from quashing the FIR, this Court also directed that no FIR or complaint should be entertained against the petitioners because of the picturisation of the concerned song. 21. In the celebrated case of Romesh Thappar v. The State of Madras [1950 SCR 594], a Constitution Bench of this Court dealt with the pre....
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....right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point." 22. The aforestated dictum was followed by another Constitution Bench of this Court in Daryao and others v. The State of U.P. and others [(1962) 1 SCR 574] as under: " There can be no doubt that the fundamental right guaranteed by Art. 32(1) is a very important safeguard for the protection of the fundamental rights of the citizens, and as a result of the said guarantee this Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country. The fundamental rights are intended not only to protect individual's rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of l....
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.... not ordinarily entertain writ petitions unless the High Court has first been approached. 5. As a matter of self-imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22-6-2019 which means that the petitioner's husband Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media. 6. We are not inclined to sit back on technical grounds. In exercise of power under Article 142 of the Constitution of India this Court can mould the reliefs to do complete justice. 7. We direct that the petitioner's husband be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate. It is made clear that this order is not to be construed as an approval of the posts/tweets in the....
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.... and that the Prime Minister garnered votes through acts of terrorism, the F.I.R. stated, "This directly amounts to inciting violence amongst the citizens and will definitely disturb public tranquillity. This is an act of instigating violence against the Government and the Prime Minister." It was also stated, "the petitioner creates panic amongst the public and disturbs public peace by trying to spread false information, such as ... the Government does not have enough testing facilities which is absolutely false." According to the F.I.R. " ... by making such false statements, Mr. Vinod Dua spread fear amongst the people. This video will only create a situation of unrest amongst the public which will result in panic and people not obeying the lockdown to come out and hoard essentials which is absolutely unnecessary ..... The rumours were spread with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity." 27. On facts, it has been established that the statements attributed to the petitioner that the Prime Minister had u....
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....mpress v. Jogendra Chunder Bose [(1892) I.L.R. 19 Cal. 35]) and Queen-Empress v. Balgangaddhar Tilak [(1898) I.L.R. 22 Bom. 112.], as under: "The first case in India that arose under the section is what is known as the Bangobasi case (Queen- Empress v. Jogendra Chunder Bose28 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 man'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 hearers or readers, he will be guilty of the o....
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....h attempting to excite such feelings. You will observe that the 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 feelings 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 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. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within Section 124-A, 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....
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.... 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 laid down by Sir Comer Petheram in Calcutta in the Bangaboshi 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....
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....f 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 sedi....
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.... 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 or 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 exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section. Explanation 3, Comments expressing disapprobation of the administrative or 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 th....
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....urse 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 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 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 c....
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....t established by law is an essential condition of the stability of the State. That is why "sedition", as the offence in Section 124-A has been characterised, comes, under Chapter VI relating to offences against the State. Hence, any acts within the meaning of Section 124-A which 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 Gov....
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....marcation between the ambit of a citizen's fundamental right guaranteed under Article 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 Sections 124-A 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. King-Emperor31 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 Section 124-A into the Indian Penal Code in 1870 as aforesaid, the law will be within the permissible limits laid down in clause (2) of Article 19 of the Co....
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....er 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 legisla....
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....nion, applied to the case in hand insofar 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." (Emphasis supplied) 28.7 It may be noted here that the appeal of Kedar Nath Singh was dismissed by this Court, affirming the view taken by the Courts below that the speech, taken as a whole, was seditious. 28.8 This Court, thus, did not follow the decisions of the Privy Council in Balgangadhar Tilak vs. Queen Empress and in King Emperor vs. Sadashiv Narayan Bhalerao but held that the operation of Section 124A of the IPC must be limited only to such activities as come within the ambit of the observations of the Federal Court. 29. It may, therefore, be necessary to deal with the aforesaid decisions of the Privy Council and that of the Federal Court in some detail. 30. Accused, Sadashiv Narayan Bhalerao had distributed certain pamphlets on 26.01.1943 in respect of which he was tried for having committed offence punishable under Rule 38(5) read with Rule 34....
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.... not occur either in S. 124A or in the Rule; it is only found as a marginal note to S. 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restricting the contents of the section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when you have a statutory definition of that which is termed sedition, as we have in the present case. ..... ...... ...... In Wallace-Joshnson v. The King [(1940) A.C. 231] under sub-s.8 of S.326 of the Criminal Code of the Gold Coast, "seditious intention" was defined as an intention "to bring into hatred or contempt or to excite disaffection against. .... the Government of the Gold Coast as by law established." It was held by this Board that the words were clear and unambiguous, and that incitement to violence was not a necessary ingredient of the crime of sedition as thereby defined. In conclusion, their Lordships will only add that ....
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....der Bose and Others. It was contended that Tilak's comments had not exceeded what in England would be considered within the functions of a public journalist. It was further contended that the misdirection complained of was of the greatest importance, not merely to the petitioner, but to the whole of the Indian press, and also to all the Indian subjects of the Crown. It affected injuriously the liberty of the press, the right to free speech and public meeting, and the right to petition for redress of grievances." 31.1 In this respect, the address ["Trial of Tilak": 2nd Edition., published by Publications Division, Ministry of Information and Broadcasting, Government of India.] made by Balgangadhar Tilak to the Jury, during the course of his trial, may also be noted. Some of the passages from the address were :- "To excite feelings of disaffection means that by your act you must heighten feelings of disaffection when they exist or create them when they do not. If you do not do anything to excite feelings, if you merely express, if you merely report, if you only express sentiments which exist at the time, surely your act does not come under Section 124A. Nay, ....
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....at meaning? So far as ideals are concerned they do not come under the Penal Code. I may say that a certain system of administration is better suited to the country and may try to spread that opinion. You may not agree with me but that is not the point. I have to express my opinion and so long as I do not create any disaffection I am allowed to express it freely. There can otherwise be no progress; progress would be impossible unless you allow intelligent gentlemen the right to express their opinion, to influence the public and get the majority of the public on their side. .... ..... ..... The question is, do you really intend as guardians of the liberty of the Press to allow as much liberty here in India as is enjoyed by the people of England? That is the point that you will have to very carefully consider. I wish to show you that mine is an Article written in controversy as a reply to an opponent. It was penned to defend the interests of my community. You may not agree with me in my views. Different communities have different views. And every community must have opportunity to express its own views. I have not come here to ask you any grace. I am prepared to stan....
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....rally, even with the explanations attached to it, would suffice to make a surprising number of persons in this country guilty of sedition; but no one supposes that it is to be read in this literal sense. The language itself has been adopted from English law, but it is to be remembered that in England the good sense of jurymen can always correct extravagant interpretations sought to be given by the executive Government or even by Judges themselves, and if in this country that check is absent, or practically absent, it becomes all the more necessary for the Courts, when a case of this kind comes before them, to put themselves so far as possible in the place of a jury, and to take a broad view, without refining overmuch in applying the general principles which underlie the law of sedition to the particular facts and circumstances brought to their notice. What then are these general principles? We are content to adopt the words of a learned Judge, which are to be found in every book dealing with this branch of the criminal law: Page: "Sedition ...... embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State an....
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....f the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal." ..... ..... ...... d) "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." ..... e) "The provisions of the Sections [The reference was to Sections 124A and 505 of the IPC] 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." ..... ..... ...... f) "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." ..... ...... ...... g) "we propose to limit its operation only to such activities as come w....
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....arantee and secure to all the people of India among others freedom of thought and expression. He also stated elsewhere that "I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press" [See D.R. Mankekar: The Press under Pressure (1973) p. 25]. The Constituent Assembly and its various committees and sub-committees considered freedom of speech and expression which included freedom of press. also as a precious right. The Preamble to the Constitution says that it is intended to secure to all citizens among others liberty of thought, expression, and belief. It is significant that in the kinds of restrictions that may be imposed on the freedom of speech and expression, any reasonable restriction imposeable in the public interest is not one enumerated in clause (2) of Article 19. In Romesh Thappar v. State of Madras and Brij Bhushan case [AIR 1950 SC 129 : 1950 SCR 605] this Court firmly expressed its view that there could not be any kind of restrictions on the freedom of speech and expression other than those mentioned in Article 19(2) and thereby made it clear that there could not be any interference w....
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.... Court to protect freedom of expression is unlikely to be substantially curtailed unless the whole structure of our democratic institutions is threatened." 34. What is stated above applies to the Indian courts with equal force. In Romesh Thappar case, Brij Bhushan case, Express Newspapers (Private) Ltd. v. Union of India [AIR 1958 SC 578 : 1959 SCR 12], Sakal Papers (P) Ltd. v. Union of India [AIR 1962 SC 305 : (1962) 3 SCR 842] and Bennett Coleman case [(1972) 2 SCC 788 : AIR 1973 SC 106 : (1973) 2 SCR 757] this Court has very strongly pronounced in favour of the freedom of press. Of these, we shall refer to some observations made by this Court in some of them. 35. In Romesh Thappar case20 this Court said at p. 602: " ... (The freedom) lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse .... (But) '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 ....
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.... out what is there. They elaborate their prejudice instead of increasing their knowledge." 43. Brandies, J., in Whitney v. California [274 US 357, 375-78 (1927) : 71 L Ed 1045] propounded probably the most attractive free speech theory: " ... that the greatest menace to freedom is an inert people; that public discussion is a political duty ;. .. It is hazardous to discourage thought, hope and imagination; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones." 45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. 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....
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.... as he then was, after citing the observation of Stephen in his Criminal Law of England, states: "Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in Article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression .... " The learned Judge continued to state: "The Constitution thus requires a line to be drawn in the f....
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....nt, this Court explained the scope of Romesh Thapper's case in State of Bihar v. Shailabala Devi [(1952) SCR 654]. That case was concerned with the constitutional validity of Section 4(1)(a) of the Indian Press (Emergency Powers) Act, 1931. It deals with the words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence. Mahajan, J., as he then was, observed at p. 660: "The deduction that a person would be free to incite to murder or other cognizable offence through the press with impunity drawn from our decision in Romesh Thapper case could easily have been avoided as it was avoided by Shearer, J., who in very emphatic terms said as follows: 'I have read and re-read the judgments of the Supreme Court, and I can find nothing in them myself which bear directly on the point at issue, and leads me to think that, in their opinion, a restriction of this kind is no longer permissible."" The validity of that section came up for consideration after the Constitution (First Amendment) Act, 1951, which was expressly made retrospecti....
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....ce is likely to be caused, and the latter was enacted to authorise the Lord Chamberlain to prohibit any stage play whenever he thought its public performance would militate against good manners, decorum and the preservation of the public peace. The reason underlying all the decisions is that if the freedom of speech was not restricted in the manner the relevant Acts did, public safety and tranquillity in the State would be affected. 11. But in India under Article 19(2) this wide concept of "public order" is split up under different heads. It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression 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. All the grounds mentioned therein can be brought under the general head "public order" in its most comprehensive sense. But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other. "Public order" is therefore something which is dema....
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....as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. 17. In Ramesh v. Union of India [(1988) 1 SCC 668] this Court held that TV serial Tamas did not depict communal tension and violence and the provisions of Section 153-A IPC would not apply to it. It was also not prejudicial to the national integration falling under Section 153-B IPC. Approving the observations of Vivian Bose, J. in Bhagwati Charan Shukla v. Provincial Govt. [AIR 1947 Nag 1] the Court observed that: "the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. ... It is the standard of ordinary reasonable man or as they say in English law 'the man on the top of a Clapham omnibus'." (Ramesh case55, SCC p. 676, para 13)" B) In Patricia Mukhim vs. State of Meghalaya and Others [2021 SCC OnLine SC 258], the requisite intention to bring out the basic ingredient of offenc....
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....the offences as alleged are made out: - "i) Our biggest failure has been that we do not have enough facilities to carry out testing. ii) Till now we do not have any information how many (PPE suits, N95 masks and masks of 3 ply) we have and how many will become available by when. iii) The Ventilators needed in other countries and in India, respiratory devices and sanitisers were being exported till 24.3.2020 instead of keeping these for use in our country. iv) That supply chains got disrupted due to blockage of roads and now it is being heard that transportation of essential goods has been allowed. v) It is not difficult to imagine that when the supply chains have been closed, when the shops are closed, some people had gone to the extent of fearing food riots which have not happened in our country could happen. vi) When people started returning from Mumbai .... That should have been a big signal for the Government about the effect the complete lockdown in the country can bring about, but no lessons were learnt." 39. We now consider these statements. A) It is common knowledge that the countries all over the world found thems....
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.... of migrant workers had already started and was at the peak. 40. It may be relevant to note here that Writ Petition (C) No.468 of 2020 (Alakh Alok Srivastava v. Union of India etc.) and connected petition [Writ Petition (C) No.469 of 2020 (Rashmi Bansal v. Union of India)], filed on 29.03.2020 by two Advocates, sought to highlight the plight of migrant workers. These matters came up on 31.03.2020 before this Court when it was observed :- "In the instant writ petitions, we are concerned about the migrant labourers who have started leaving their places of work for their home villages/towns located at distant places. For example, thousands of migrant labourers left Delhi to reach their homes in the States Uttar Pradesh and Bihar, by walking on the highways. We are informed that the labourers who are unemployed due to lock down were apprehensive about their survival. Panic was created by some fake news that the lock down would last for more than three months. ..... ..... ..... During the course of hearing, the Solicitor General of India made a statement that the information received by the Control Room today at 2.30 A.M. showed that 21,064 relief ....
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....he directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety. In particular, we expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments." 41. The developments referred to in the aforementioned Order show that the movement of migrant workers back to their hometown or villages had posed an alarming situation. The writ petitions did bring out those issues, in response to which the concern shown by the Government and the steps undertaken by the authorities were placed on record. This Court suggested that a daily bulletin by the Government of India be made active so that correct and precise information was made available....
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....ision in Kedar Nath Singh and against the backdrop of the circumstances when they were made, can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence. The petitioner was within the permissible limits laid down in the decision of this Court in Kedar Nath Singh. It may be that certain factual details in the 3rd statement regarding the date when the ban came into effect were not completely correct. However, considering the drift of the entire talk show and all the statements put together it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh2. 44. We are, therefore, of the firm view that the prosecution of the petitioner for the offences punishable under Sections 124A and 505 (1) (b) of the IPC3 would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and any prosecution in respect th....
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.... (set out earlier in paragraph 14) and thereby committed offences under Section 188 of the IPC3. 49. The response of Mr. Vikas Singh, learned Senior Advocate for the petitioner was that by virtue of Section 60 [60. Cognizance of offences.-No court shall take cognizance of an offence under this Act except on a complaint made by- (a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or (b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid] of the DM Act1, the offences punishable under the provisions of the DM Act1 could be taken cognizance of only upon a complaint being made by the certain designated officials or functionaries. Similarly, in respect of offence under Section 188 of the IPC3, by virtue of Section 195 of the Code, cognizance ....
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....20207 to submit that this Court had issued certain directions and expected the media to maintain strong sense of responsibility and ensure that unverified news capable of causing panic was not disseminated. First, the direction was issued on 31.3.2020 i.e. after the episode was uploaded on 30.3.2020 and secondly, we have not found any infirmity or illegality in the statements made by the petitioner, on the basis of which it could be possibly be said that he was attempting to disseminate any news capable of causing panic. Consequently, the provisions of Section 188 of the IPC3 would not get attracted at all. B) Section 52 of the DM Act1 deals with the lodging of a false claim by a person for obtaining any relief, assistance, etc., which provision has nothing to do with the present fact situation. Section 54 deals with cases where a person makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. We have already held that the statements made by the petitioner were within the limits prescribed by the decision of this Court in Kedar Nath Singh2 and that the statements were without any intent to incite people for creating public disor....
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....not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the....
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....a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence o....
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....several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie [(1988) 18 Con LR 1] test in the following words: (Con LR p. 79) "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The ....
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.... frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of me....
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....r filing a false FIR." Thereafter, directions were issued in paragraph 120 of the decision and direction 120.6 was as under: "Conclusion/Directions 120. In view of the aforesaid discussion, we hold: ..... ..... 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry." 59. We may now notice the relevant observations in P. Sirajuddin, Etc. vs. State of Madras, Etc. [(1970) 1 SCC 595], which were :- "17. In our view the procedure adopted against the appellant before the laying of the first information rep....
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....ng on the issue involved. It is only thereafter that a charge-sheet is submitted and a full- scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be restored to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report. ..... ..... ....... 21. In our view the enquiring officer pursued the investigation with such zeal and vigour that he even enquired into and took down statements as persons who were supposed to have provided the appellant with articles of food worth trifling sums of money long before the launching of the enquiry. The whole course of investigation as disclosed in the affidavits is suggestive of some pre-determination of the guilt of the appellant. The enquiring officer was a high- ranking police officer and it is surprising that s....
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....harma and others v. State of Uttar Pradesh and another [(2018) 10 SCC 472] a Bench of two Judges of this Court (to which one of us, Lalit, J. was a party) issued following directions in cases where the offence alleged was one punishable under Section 498-A of the IPC :- "19. Thus, after careful consideration of the whole issue, we consider it fit to give the following directions: 19.1 In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority. 19.2. The Committees may be constituted out of paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing. 19.3. The Committee members will not be called as witnesses. 19.4. Every complaint under Section 498-A received by the police or the Magistrate be referred to and looked into by such Committee. Such Committ....
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.... red corner notice should not be a routine. 19.16. It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the court to whom all such cases are entrusted. 19.17. Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by videoconferencing without adversely affecting progress of the trial. 19.18. These directions will not apply to the offences involving tangible physical injuries or death." Direction No.19.4 had thus contemplated referral of every complaint under Section 498A IPC to a Committee and it was only after the report of the Committee, arrest if at all, could be effected. In terms of direction 19.12 it was directed that all complaints under Section 499A IPC be investigated only by a Designated Investigating Officer of the area. While issuing these directions, this Court had inter alia relied upon the decision in Arnesh Kumar v. State of Bihar ....
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....f law. A criminal proceeding which is not compoundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bona fide of the petition, may quash the same. The power rests with the High Court. In this regard, we may reproduce a passage from a three-Judge Bench in Gian Singh v. State of Punjab [(2012) 10 SCC 303], In the said case, it has been held that: "61. ... Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz .: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc.....
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....in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. That cannot be considered at that stage. Therefore, we do not find anything erroneous in Directions 19.14 and 19.15. So far as Directions 19.16 and 19.17 are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought. ....... ..... ..... 42. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar, D.K. Basu, Lalita Kumari5 and Arnesh Kumar. It will also be appropriate to direct the Director General of Police of each State to ensure that the investigating officers who are in charge of investigatio....
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.... 662]; 79.3. In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention. 79.4. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. 79.5. Any violation of Directions 79.3 and 79.4 will be actionable by way of disciplinary action as well as contempt. 79.6. The above directions are prospective." During the course of its decision, the Bench had noticed paragraph 120.6 of the decision in Lalita Kumari5 as well as the decision in P. Sirajuddin69. In terms of directions in paragraph 79.3 and 79.4, it was directed that an arrest of a public servant could be effected only after approval of the appointing authority and that of a non-public servant....
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....ether it would be appropriate for appointing authority to look into case diary in a case where its sanction for prosecution may not be required in an offence which has not happened in the discharge of official duty. Approaching appointing authority for approval of arrest of a public servant in every case under the 1989 Act is likely to consume sufficient time. The appointing authority is not supposed to know the ground realities of the offence that has been committed, and arrest sometimes becomes necessary forthwith to ensure further progress of the investigation itself. Often the investigation cannot be completed without the arrest. There may not be any material before the appointing authority for deciding the question of approval. To decide whether a public servant should be arrested or not is not a function of the appointing authority, it is wholly extra-statutory. In case the appointing authority holds that a public servant is not to be arrested and declines approval, what would happen, as there is no provision for grant of anticipatory bail. It would tantamount to taking away functions of court. To decide whether an accused is entitled to bail under Section 438 in case no prim....
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....cannot be said that misuse of law takes place by the provisions of the 1989 Act. In case the direction is permitted to prevail, days are not far away when writ petition may have to be filed to direct the appointing authority to consider whether the accused can be arrested or not and as to the reasons recorded by the appointing authority to permit or deny the arrest. It is not the function of the appointing authority to intermeddle with a criminal investigation. If at the threshold, approval of the appointing authority is made necessary for arrest, the very purpose of the Act is likely to be frustrated. Various complications may arise. Investigation cannot be completed within the specified time, nor trial can be completed as envisaged. The 1989 Act delay would be adding to the further plight of the downtrodden class. In re : Approval of arrest by the SSP in the case of a non- public servant 66. Inter alia for the reasons as mentioned earlier, we are of the considered opinion that requiring the approval of SSP before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the Act. Apart from....
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....ary inquiry concludes that allegations are false or motivated, FIR is not to be registered, in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis- à-vis to the complaints lodged by members of upper caste, for later no such preliminary investigation is necessary, in that view of the matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act, 1989. 70. We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of the Constitution of India. Resultantly, we are of the considered opinion that Directions 79.3 and 79.4 issued by this Court deserve to be and are hereby recalled and consequently we hold that Direction 79.5, also vanishes. The review petitions are allowed to th....