# Arun Jaitley v. State of U.P. Opp. Party

- **Citation:** (2015) 3 ILRA 1521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-05
- **Case number:** Application U/S 482 No. 32703 of 2015
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-jaitley-v-state-of-u-p-opp-party-43414
- **Pages:** 12

## Headnote

INDIAN LAW REPORTS ALLAHABAD SERIES
Mr. V.B. Singh, Mr. Imran Ullah, Mr.
Akhilesh Singh
(A) Cr.P.C.-Section 196-Suo moto cognizance
taken by Magistrate u/s 190 (i)(a)(b)and (c)-
without prior permission from governmentheld-illegal-not sustainable.
Held: Para-10 & 13

## Text

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3 All.
 Arun Jaitley Vs. State of U.P.
1521
dismissed without assigning any reason.
The Magistrate under Section 204 of the
Code can take cognizance of an offence
and issue process if there is sufficient
ground for proceeding. In Mahesh Chand
(supra) the Hon'ble Apex Court relied on
the ratio in Pramatha Nath (supra) and
held that if the first complaint had been
dismissed the second complaint can be
entertained
only
in
exceptional
circumstances as has been pointed out in
Pramatha Nath (supra).
In Shiv Shankar Singh Vs State of
Bihar and another (2012) 1 SCC 130, the
Hon'ble Apex Court has held as under:
"It is evident that the law does not
prohibit filing or entertaining of the
second complaint even on the same facts
provided the earlier complaint has been
decided on the basis of insufficient
material or the order has been passed
without understanding the nature of the
complaint or the complete facts could not
be placed before the court or where the
complainant came to know certain facts
after disposal of the first complaint which
could have tilted the balance in his
favour. However, second complaint would
not be maintainable wherein the earlier
complaint has been disposed of on full
consideration
of
the
case
of
the
complainant on merit."
7. In the present matter, as is evident
from the record, after initiation of the
police investigation, complaint was also
filed by the complainant. Perusal of the
record also shows that no any complaint
was dismissed by the court concerned on
merit. The submission raised by the
learned counsel for the applicants that it is
a second complaint is not acceptable. It is
true that the complainant may file the
protest petition on the final report and the
court
dealing
with
the
matter
is
empowered to treat the protest petition as
complaint, but only on this basis the
complaint filed by the complainant cannot
be treated as second complaint. Learned
counsel for the applicants also did not
disclose the final result of the final report.
From perusal of the revisional court's
order dated 22.9.2015 (annexure 6 to the
affidavit accompanying the application),
it appears that court concerned has
consolidated both the matter. No any
benefit goes in favour of the the
applicants with the law laid down in the
above cited Jai Ram (Supra) case, rather it
helps to the complainant.
8. In view of the above, no ground
for quashing the proceedings of the
aforesaid case as well as the summoning
order is made out which may call for any
interference by this Court in exercise of
its inherent power under Section 482
Cr.P.C. as the same do not suffer from
any illegality or infirmity.
9. The Application u/s 482 Cr.P.C.
is devoid of merit and is accordingly
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.11.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Application U/S 482 No. 32703 of 2015
Arun Jaitley
 ...Applicant
Versus
State of U.P.
..Opp. Party
Counsel for the Applicant:
Mr. Tarun Agarwal, Mr. Manindar Singh
Gill, Mr. Ravi Kant, Mr. Nalin Kohli
Counsel for the Opp. Party:
1522
 INDIAN LAW REPORTS ALLAHABAD SERIES
Mr. V.B. Singh, Mr. Imran Ullah, Mr.
Akhilesh Singh
(A) Cr.P.C.-Section 196-Suo moto cognizance
taken by Magistrate u/s 190 (i)(a)(b)and (c)-
without prior permission from governmentheld-illegal-not sustainable.
Held: Para-10 & 13
10. In the opinion of the Court,
therefore, cognizance taken under either
of clauses (a), (b) or (c) of Section
190(1) would have to conform with the
requirements of Section 196. This clearly
flows from the opening words of Section
190 itself, which make it subject to the
provisions of Chapter XIV. Section 505 of
the Penal Code finds specific mention in
Section 196 Cr.P.C. Admittedly, Section
124A stands comprised in Chapter VI of
the Penal Code and would therefore,
stand covered in clause (a) of Section
196. It therefore, clearly follows that the
Magistrate
could
not
have
taken
cognizance except with the previous
sanction of the Government.
13. In light of the above, this Court
holds that the Magistrate clearly erred in
proceeding to exercise jurisdiction under
Section 190(1)(c) and therefore, the
order taking cognizance of the alleged
offence and issuance of summons cannot
be sustained.
(B) Indian Penal Code-Section 124-AOffence-what
Constitute?-explainedhealthy criticism or even intellectual
disagreement to judgment-not a crimeviews
printed
in
article
may
be
unacceptable or unpalatable to some
one-but not liable to be punished.
Held: Para-26
The Magistrate appears to have closed
his eyes to the well-settled view that
healthy criticism or even intellectual
disagreement with a particular view of a
judge contained in a judgment of the
court is not a crime. The view expressed
may
be
unacceptable
or
even
unpalatable to some. However the same
does not render it liable to prosecution
under the Penal Code.
Case Law discussed:
W.P. (Civil) No. 13 of 2015; (1993) 3 SCC 339;
(1999) 1 SCC 728; 1999 (3) ALD 193; AIR
1962 SC 955; (2003) 8 SCC 461; (2015) 5 SCC
1; (1974) 1 SCC 374; (1988) 3 SCC 177; 1993
(Supp) 1 SCC 499; (1998) 5 SCC 749; (2015)
1 SCC 749.
(Delivered by Hon'ble Yashwant Varma, J.)
1. The applicant seeks to invoke the
inherent powers of the Court conferred by
Section 482 Cr.P.C. for quashing of
Complaint Case No. 382 of 2015 and an
order dated 19.10.2015, passed by the
Judicial Magistrate, Kulpahar, Mahoba,
U.P.
A. BACKGROUND FACTS
2. The record reveals that the
Judicial Magistrate taking suo moto
cognizance has proceeded to summon the
applicant under Sections 124 A and 505
of the Penal Code. The concerned
Magistrate has taken cognizance of the
alleged offences on the basis of an article
written by the applicant and posted on his
Facebook page. The article is titled as
''NJAC Judgement-An Alternative View'.
The Magistrate has recorded that no
citizen has a right to disrespect the three
pillars of our democracy namely, the
Executive, Legislature and the Judiciary.
He then proceeds to record that an order
of a Court can be questioned only by
following a procedure prescribed by law.
The order then states that no person is
entitled to create or generate hatred or
contempt against an elected Government
established by law. The Magistrate upon
recording the above conclusions holds
that the comments made by the applicant
undoubtedly spread hatred and contempt
3 All.
 Arun Jaitley Vs. State of U.P.
1523
against a duly elected Government and
accordingly, in his opinion, the applicant
prima facie appears to have committed
offences under Section 124A and 505
I.P.C.
3. Referring to the provisions of
Section190(1)(c), the Magistrate recorded
that the above mentioned section of the
Criminal Procedure Code conferred upon
him a power to take suo moto cognizance.
He then records that the power to take suo
moto cognizance under clause (c) of subSection (1) of Section 190 of Cr.P.C. is
not
trammelled
by
the
territorial
jurisdiction of a Magistrate and that since
the comments made by the applicant were
widely published in the print and
electronic media throughout the nation, it
was open to a Magistrate anywhere in the
country to exercise suo moto powers. He
accordingly,
proceeded
to
take
cognizance under Section 190(1)(c) of the
Criminal Procedure Code and issued
summons to the applicant seeking his
appearance before the Court on 19
November 2015.
4.
The views expressed by the
applicant in the article authored by him and
dated 18 October 2015 is a critique of a
judgement rendered by a Constitution
Bench of the Supreme Court of India1
which ruled upon the validity of the
National
Judicial
Appointments
Commission Act, 2014 and the Ninety
Nineth Constitutional amendment. The
excerpts of the said article read as follows:
"The judgement ignores the larger
constitutional
structure
of
India.
Unquestionably,
independence
of
the
judiciary is a part of the basic structure of
the Constitution. It needs to be preserved.
But the judgement ignores the fact that there
are several other features of the Constitution
which comprise the basic structure. The most
important basic structure of the Indian
Constitution is Parliamentary democracy.
The next important basic structure of the
Indian
Constitution
is
an
elected
Government which represents the will of the
sovereign.
The
Prime
Minister
in
Parliamentary democracy is the most
important
accountable
institution.
The
Leader of the Opposition is an essential
aspect of that basic structure representing
the alternative voice in Parliament. The Law
Minister represents a key basic structure of
the Constitution; the Council of Ministers,
which is accountable to Parliament. All these
institutions, Parliamentary sovereignty, an
elected Government, a Prime Minister,
Leader of Opposition, Law Minister are a
part of the Constitution's basic structure.
They represent the will of the people. The
majority
opinion
was
understandably
concerned
with
one
basic
structureindependence of judiciary - but to rubbish all
other basic structures by referring to them as
"politicians" and passing the judgement on a
rationale that India's democracy has to be
saved from its elected representatives. The
Indian democracy cannot be a tyranny of the
unelected and if the elected are undermined,
democracy itself would be in danger. Are not
institutions like the Election Commission and
the CAG not credible enough even though
they are appointed by elected Governments?
The
judgement
interprets
the
provision of Article 124 and 217 of the
Constitution. Article 124 deals with the
appointment of Judges in the Supreme
Court and Article 217 deals with the
appointment of Judges of the High Court.
Both provide for the appointment to be
made by the President in consultation with the
Chief Justice of India. The mandate of the
Constitution was that Chief Justice of India is
1524
 INDIAN LAW REPORTS ALLAHABAD SERIES
only a 'Consultee'. The President is the
Appointing Authority. The basic principle of
interpretation is that a law may be interpreted
to give it an expanded meaning, but they
cannot be rewritten to mean the very opposite.
In the second Judge's case, the Court declared
Chief Justice the Appointing Authority and the
President a 'Consultee'. In the third Judge's
case, the courts interpreted the Chief Justice
to mean a Collegium of Judges. President's
primacy was replaced with the Chief Justice's
or the Collegium's primacy. In the fourth
Judge's case (the present one) has now
interpreted Article 124 and 217 to imply
'Exclusivity' of the Chief Justice in the matter
of appointment excluding the role of the
President almost entirely.
No principle of interpretation of law
anywhere in the world, gives the judicial
institutions the jurisdiction to interpret a
constitutional provision to mean the opposite
of what the Constituent Assembly had said.
This is the second fundamental error in the
judgement. The court can only interpret - it
cannot be the third chamber of the legislature
to rewrite a law.
Having
struck
down
the
99th
Constitutional Amendment, the Court decided
to re-legislate. The court quashed the 99th
Constitutional Amendment. The court is
entitled to do so. While quashing the same, it
re-legislated the repealed provisions of Article
124 and 217 which only the legislature can
do. This is the third error in the judgement.
5. The article then ends with the
following words:
As
someone
who
is
equally
concerned about the independence of
judiciary and the sovereignty of India's
Parliament, I believe that the two can and
must
co-exist.
Independence of the
judiciary is an important basic structure
of the Constitution. To strengthen it, one
does not have to weaken Parliamentary
sovereignty which is not only an essential
basic structure but is the soul of our
democracy."
B. SUBMISSIONS
6.
The learned Senior Counsel
appearing in support of this application has
raised both procedural as well as fundamental
objections to the proceedings initiated by the
Magistrate. Elaborating his submissions on
the aspect of the procedural flaws, he submits
that Section 124A as well as Section 505 IPC
are both offences which fall within the ambit
of Section 196 of the Criminal Procedure
Code. Referring to the provisions of Section
196, the learned counsel submits that there is a
complete bar on any Court taking cognizance
of an offence falling under Chapter VI of the
Penal Code as well as Section 505 without the
previous sanction of the Central Government
or of the State Government. It is, therefore, his
submission that the Magistrate clearly acted in
excess of jurisdiction in proceeding to take
cognizance and summoning the applicant
without complying with the provisions of
Section 196. Referring to a judgement
rendered by two learned Judges of the
Supreme Court in State of Maharashtra Vs. Dr
Budhikota Subbarao2, he submits that the use
of the words 'no' and ''shall' in Section 196
make it abundantly clear that the bar on the
power of a Court taking cognizance of an
offence is absolute and complete. He submits
that Section 196 therefore, clearly barred the
Magistrate from assuming jurisdiction or even
taking notice. He has also placed reliance on
an order of the Supreme Court in Manoj Rai
and Others Vs. State of M.P.3 to contend that
in a case where no sanction was given in
accordance with the provisions of Section
196, the entire proceedings were liable to be
3 All.
 Arun Jaitley Vs. State of U.P.
1525
quashed. On this aspect of the matter, he has
further placed reliance upon a judgement
rendered by a learned Single Judge of the
Andhra Pradesh High Court in Kandi Buchi
Reddy Vs. State of Andhra Pradesh4. This
was a case which dealt with a chargesheet
filed
against
the
petitioner
alleging
commission of offences under Section 124A
and 506 IPC. The issue of sanction as required
under Section 196 of the Code of Criminal
Procedure directly fell for consideration and
stood answered in the following terms
"Admittedly, Section 124-A IPC is an
offence contained under Chapter-VI of the
Indian Penal Code. Therefore, sanction of
the appropriate Government is a prerequisite for taking cognizance of the
offence under the said Section. The
learned Public Prosecutor has fairly
conceded that before the charge-sheet
was filed, no sanction has been obtained."
7. The second limb of the
submissions advanced by the learned
Senior Counsel was with respect to the
scope and ambit of Sections 124-A and
505 of the Penal Code. It was submitted
that the article written by the applicant
was a fair criticism of the judgement
rendered by the Constitution Bench and
that nothing contained therein would
qualify as amounting to a commission of
an offence either under Section 124A or
Section 505 of the Penal Code. The
article, he would submit, can by no stretch
of imagination be said to contain words
which were aimed to bring or attempted
to bring into hatred or contempt a
Government established by law. Referring
to the ingredients of Section 505 of the
Penal Code, he submits that the article
neither caused nor was it intended to
cause any fear or alarm amongst the
general public nor did it in any manner
tend to induce any person to commit an
offence against the State or against public
tranquillity. He further submits that the
applicant had authored the article bonafidely
and in exercise of the fundamental rights
guaranteed under Article 19(1)(a) of the
Constitution of India. He submits that
criticism of a judgement is not contempt and
in any view of the matter can never be
described as sedition.
8. The learned Advocate General who
appeared in the proceedings stated that no
sanction had been accorded for the initiation
of proceedings by the concerned Magistrate
and that the suo moto cognizance taken by
him as well as the issuance of summons was
not preceded by any order having been made
under Section 196 of the Criminal Procedure
Code.
C. PROCEDURAL ILLEGALITY
9. The provisions of Sub Section 190
of the Criminal Procedure Code are
prefaced by the words ''subject to the
provisions of this Chapter'. Clause (c) of
sub-Section (1) confers a power on the
Magistrate to take cognizance of an offence
upon information received from any person
other than a police officer or upon his own
knowledge that such offence has been
committed.
The
jurisdiction
of
the
Magistrate therefore, to take suo moto
cognizance of an offence is not in doubt.
What however, falls for consideration is
whether such suo moto cognizance can be
taken without following the procedure
prescribed under Section 196 of the Code of
Criminal Procedure. The Court must take
note of the fact that Section 190(1)(c) is not
given
overriding
effect
over
other
provisions falling in Chapter XIV of the
Criminal Procedure Code. Neither does
Section 196 carve an exception in respect
1526
 INDIAN LAW REPORTS ALLAHABAD SERIES
thereof or exclude clause (c) of Section 190
(1) from the width of its operation.
10.
In the opinion of the Court,
therefore, cognizance taken under either of
clauses (a), (b) or (c) of Section 190(1)
would
have
to
conform
with
the
requirements of Section 196. This clearly
flows from the opening words of Section 190
itself, which make it subject to the provisions
of Chapter XIV. Section 505 of the Penal
Code finds specific mention in Section 196
Cr.P.C. Admittedly, Section 124A stands
comprised in Chapter VI of the Penal Code
and would therefore, stand covered in clause
(a) of Section 196. It therefore, clearly
follows that the Magistrate could not have
taken cognizance except with the previous
sanction of the Government.
11. The language employed in Section
196 is para materia to that used in Section
197, which provision fell for consideration
before the Supreme Court in State of
Maharashtra (supra). Their Lordships held the
requirements of that provision to be of a
mandatory character. Taking note of the use
of the words ''no' and ''shall' in the said
provision, their Lordships proceeded to hold
that it was abundantly clear that the bar on the
exercise of the power of the Court to take
cognizance of any offence is absolute and
complete. The bar was held to stand extended
to a Court from entertaining a complaint or
even taking notice or exercising jurisdiction.
The principles enunciated in State of
Maharashtra (supra) stands applied in Manoj
Rai (supra) and Kandi Buchi Reddy (supra).
12.
The requirement of sanction as a
prerequisite for taking cognizance was a
principle which was reiterated by a learned
Judge of the Calcutta High Court in Aveek
Sarkar Vs. State of West Bengal5. The
learned Judge held that the absence of
sanction was fatal and could not be brought
within the pale of section 460 (e) of the
Criminal Procedure Code or in other words
characterized as an irregularity of procedure
which would not vitiate proceedings.
13.
In light of the above, this Court
holds that the Magistrate clearly erred in
proceeding to exercise jurisdiction under
Section 190(1)(c) and therefore, the order
taking cognizance of the alleged offence and
issuance of summons cannot be sustained.
14. The order of the Magistrate in
light of the submissions advanced before
this Court is liable to be tested on its
merits also. The expression of views by
the applicant in the article in question is
stated to have in the opinion of the
Magistrate resulted in a prima facie
commission of offences referable to
Section 124A and Section 505 IPC.
D.
SEDITION
AND
PUBLIC
TRANQUILITY
15. The article is on record and
stands appended to the paper book as
Annexure-3. Having gone through the
same, this Court now proceeds to examine
as to whether its contents can by any
stretch of imagination be said to have
resulted in commission of offences under
Section 124A or Section 505 of the Penal
Code. Section 124 A of the Penal Code
reads as under:
"Whoever by words, either spoken or
written,
or
by
signs
or
by
visible
representation, or otherwise, brings or
attempts to bring into hatred to contempt, or
excites or attempts to excite disaffection
towards the Government established by law in
India shall be punished with transportation
for life or any shorter term to which fine may
3 All.
 Arun Jaitley Vs. State of U.P.
1527
be added or with imprisonment which may
extend to three years, to which fine may be
added, or with fine.
Explanation
1.
The
expression
"disaffection" includes disloyalty and all
feelings of enmity.
Explanation 2. Comments expressing
disapprobation of the measures of the
Government with a view to obtain their
alteration by lawful means, without
exiting or attempting to excite hatred,
contempt or disaffection do not constitute
an offence under this section.
Explanation 3. Comments expressing
disapprobation of the administrative of other
action of the Government without exciting or
attempting to excite hatred, contempt or
disaffection, do not constitute an offence
under this section."
16.
The ingredients of an offence
referable
to
Section
124A
fell
for
consideration before a Constitution Bench of
the Supreme Court in Kedar Nath Singh Vs.
State of Bihar6. Their Lordships lucidly dwelt
upon the interplay between Section 124 A of
the Penal Code and Article 19 of the
Constitution of India and declared the law in
the following terms:
"24. In this case, we are directly
concerned with the question how for the
offence, as defined in s. 124A of the
Indian Penal Code, is consistent with the
fundamental right guaranteed by Art.
19(1)(a) of the Constitution, which is in
these terms :
"19. (1) All citizens shall have the
right.
(a) to freedom of speech and
expression..."
This guaranteed right is subject to the
right of the legislature to impose
reasonable restrictions, the ambit of which
is indicated by clause (2), which, in its
amended form, reads as follows :
"(2) Nothing in sub-clause (a) of clause
(1) shall affect the operation of any existing
law or prevent the State from making any
law, in so far as such law imposes reasonable
restrictions on the exercise of the right
conferred by the said sub-clause in the
interests of the security of the State, friendly
relations with foreign States, public order,
decency or morality, or in relation to
contempt of court, defamation or incitement
to an offence."
It has not been questioned before us that
the fundamental right guaranteed by Art.
19(1)(a) of the freedom of speech and
expression is not an absolute right. It is
common ground that the right is subject to
such reasonable restrictions as would come
within the purview of clause (2), which
comprises (a) security of the State, (b)
friendly relations with foreign States, (c)
public order, (d) decency or morality, etc.,
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 clause (2) of Art. 19 with
particular reference to security of the State
and public order, the section, it must be
noted, penalises any spoke 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
person's for the time being engaged in
carrying on the administration. "Government
established by law" is the visible symbol of
the State. The very existence of the State will
be in jeopardy if the Government established
by law is subverted. Hence the continued
1528
 INDIAN LAW REPORTS ALLAHABAD SERIES
existence of the Government established by
law is an essential condition of the stability
of the State. That is why 'sedition', as the
offence in s. 124A has been characterised,
comes under Chapter VI relating to offences
against the State. Hence any acts within the
meaning of s. 124A 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 Government, without exciting those
feelings which generate the inclination to
cause public disorder by acts of violence,
would not be penal. In other words,
disloyalty to Government established by law
is not the same thing as commenting in
strong terms upon the measures or acts of
Government, or its agencies, so as to
ameliorate the condition of the people or to
secure the cancellation or alteration of those
acts or measures by lawful means, that is to
say, without exciting those feelings of enmity
and disloyalty which imply excitement to
public disorder or the use of violence.
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 spoke 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
view to punishing offences against the State,
is undertaken. Such a legislation has, on the
one hand, fully to protect and guarantee the
freedom of speech and expression, which is
the sine quo non of a democratic form of
Government that our Constitution has
established. This Court, as the custodian and
guarantor of the fundamental rights of the
citizens, has the duty cast upon it of striking
down any law which unduly restricts the
freedom of speech and expression with
which we are concerned in this case. But the
freedom has to be guarded against becoming
a licence for vilification and condemnation of
the Government established by law, in
words, which incite violence or have the
tendency to create public disorder. A citizen
has a right to say or write whatever he likes
about the Government, or its measures, by
way of criticism or comment, so long as he
does not incite people to violence against the
Government established by law or with the
intention of creating public disorder. The
Court, has, therefore, the duty cast upon it of
drawing a clear line of demarcation between
the ambit of a citizen's fundamental right
guaranteed under Art. 19(1)(a) of the
Constitution and the power of the legislature
to impose reasonable restrictions on that
guaranteed right in the interest of, inter alia,
3 All.
 Arun Jaitley Vs. State of U.P.
1529
security of the State and public order. We
have, therefore, to determine how far the
Sections 124A and 505 of the Indian Penal
Code could be said to be within the
justifiable limits of legislation. If is held, in
consonance with the views expressed by the
Federal Court in the case of Niharendu Dutt
Majumdar v. The King Emperor (1942)
F.C.R. 38 that the gist of the offence of
'sedition' is incitement to violence or the
tendency or the intention to create public
disorders 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 clause (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 load 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
clause (2) aforesaid."
17. The Supreme Court in Nazir
Khan Vs. State of Delhi7 explained
"sedition" in the following words: -
"37. 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. ........The
object 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..."
18.
The above guiding principles laid
down by the Supreme Court in the judgments
noted above came to be followed in a recent
judgment of the Bombay High Court. Two
learned judges of the Bombay High Court in
Sanskar Marathe Vs. State of Maharashtra8
were faced with a case of a political cartoonist
who was alleged to have defamed Parliament.
The criminal complaint alleged that the
cartoons apart from being defamatory also
amounted to acts of sedition. The Division
Bench after noticing the law laid down by the
Supreme Court on the subject held: -
"15... A citizen has a right to say or
write whatever he likes about
the
Government or its measures, by way of
criticism or comments, so long as he does
not incite people to violence against the
Government established by law or with
the intention of creating public disorder..."
16...But for that reason, the freedom of
speech and expression available to the third
respondent to express his indignation against
corruption in the political system in strong
terms or visual representations could not be
encroached upon when there is no allegation
of incitement to violence or the tendency or
the intention to create public disorder."
19. Now for words written or spoken to
fall within the meaning of sedition, the words
would have to be held to have the effect of
subverting the Government by violent means
or tend to bring about public disorder or the
use of violence or incitement to violence. The
words or action in order to fall within the
meaning of sedition, it was held by the
Constitution Bench, would have to travel or
stand raised to a degree of revolution against
the Government in order to fall within the
mischief of the penal provision. At the same
1530
 INDIAN LAW REPORTS ALLAHABAD SERIES
time, the Supreme Court held that words
however, strongly worded or words which
used strong terms with respect to the measures
or acts of the Government, strong speech,
strong criticism would clearly be outside the
scope of the section. It was held that a citizen
had a right to say or write whatever he likes
about the Government or its measures by way
of criticism or comments so long as he did not
incite people to resort to violence against the
Government established by law or with the
intention of creating public disorder. In fact, it
was upon these considerations that their
Lordships held that if the words or actions in
question had not intended to or had not been
employed to create disturbance of law and
order and yet been restricted from being aired
or voiced then such an interpretation would
render the provisions of Section 124 A
unconstitutional in view of Article 19.
20.
From the above exposition of the
law by the Constitution Bench, it is clear that
the section aims at rendering penal only such
activity which is intended to or which would
have a tendency to create disorder or
disturbance of public peace. In order for the
words written or spoken to fall within the
ambit of section 124A, they would necessarily
have to be of a category which would qualify
as having a ''pernicious tendency' of creating
public disorder or disturbance of law and
order. Only then would the law step in to
prevent such activity.
21. The contents of the article written by
the applicant can by no stretch of imagination
be said to be intended to create public disorder
or be designed or aimed at exciting the public
against a Government established by law or an
organ of the State. The article merely seeks to
voice the opinion and the view of the author of
the need to strike a balance between the
functioning of two important pillars of the
country. It is surely not a call to arms.
22. For the aforesaid reasons, this
Court is of the firm opinion that none of
the ingredients essential for invoking the
provisions of Sections 124A or 505 of the
Penal Code stood attracted to the article in
question. The Magistrate has committed a
manifest illegality in forming an opinion
that an offence under the above provisions
stood prima facie committed.
E. THE FREEDOM OF SPEECH
23.
The freedom of speech and
expression guaranteed by our Constitution to
all citizens requires us to tolerate even
unpopular views. The free flow of ideas and
opinions is an essential concomitant for the
intellectual growth of the citizenry. Plurality
of views and opinions is an essential facet of a
democracy and of great societal importance. It
is this underlying theme that envelopes the
concept of the ''market place of ideas'. In
Shreya Singhal Vs. Union of India9 the
Supreme Court quoted with approval the
views expressed by Brandies J. in Whitney v.
California [274 US 357] who explained the
contents of the right to free speech in the
following words: -
".... Fear of serious injury cannot alone
justify suppression of free speech and
assembly. Men feared witches and burnt
women. It is the function of speech to free
men from the bondage of irrational fears....."
24. In Shreya Singhal (supra) the
Supreme Court after noticing the body of
precedents rendered by different Courts of
the world held:-
"13. This leads us to a discussion of
what is the content of the expression
"freedom of speech and expression". There
are three concepts which are fundamental
in understanding the reach of this most
3 All.
 Arun Jaitley Vs. State of U.P.
1531
basic of human rights. The first is
discussion, the second is advocacy and the
third is incitement. Mere discussion or even
advocacy of a particular cause howsoever
unpopular is at the heart of Article
19(1)(a)."
25. The article in question therefore was
liable to be tested on the above principles. The
Court notes that the order of the Magistrate
does not record that the contents penned by
the applicant would tend to incite the people
to insurrection or rebellion. Disrespect, even if
it were assumed that the article did so, does
not render the action liable to prosecution for
offenses under section 124A or section 505.
The right to air an opinion, to dissent,
intellectual discourse are the heart and soul of
the freedom of speech and expression which
stands conferred upon all citizens by our
Constitution.
26.
The Magistrate appears to have
closed his eyes to the well-settled view that
healthy
criticism
or
even
intellectual
disagreement with a particular view of a judge
contained in a judgment of the court is not a
crime.
The
view
expressed
may
be
unacceptable or even unpalatable to some.
However the same does not render it liable to
prosecution under the Penal Code. The
Magistrate would have done well to remember
the words of the venerable Justice Krishna
Ayer in Baradakant Mishra v. Registrar of
Orissa High Court10 who observed:-
" 409.....Vicious criticism of personal
and administrative acts of Judges may
indirectly mar their image and weaken the
confidence of the public in the judiciary,
but the countervailing good, not merely of
free speech but also of greater faith
generated by exposure to the actinic light
of
bona
fide,
even
if
marginally
overzealous,
criticism
cannot
be
overlooked. Justice is no cloistered
virtue."
It was in the above light that the
Supreme Court in P.N. Duda v. P. Shiv
Shankar11 quoted with approval the
following extract from the judgment of
Lord Atkin in Ambard v. Attorney
General of Trinidad and Tobago [(1936) 1
All ER 704] "Justice is not a cloistered
virtue: she must be allowed to suffer the
scrutiny and respectful, even though
outspoken, comments of ordinary men".
F. THE CAUTION
27. One last aspect of the matter which
must necessarily be adverted to in the opinion
of the Court is this. The initiation of criminal
prosecution has serious consequences. It
relates to the life and liberty of a citizen and
carries with it grave consequences. Viewed in
that light it is obvious that the exercise of
power by the Magistrate must be preceded by
due application of mind and circumspection.
A note of caution in this regard was sounded
by our Supreme Court as far back as in Punjab
National Bank v. Surendra Prasad Sinha12.
This judicial interpose was reiterated in Pepsi
Foods Ltd. v. Special Judicial Magistrate13
and more recently in P.S. Meherhomji v. K.T.
Vijaykumar14.
28. However in the facts of the present
case this Court finds that the assumption of
jurisdiction and the issuance of process failed
to adhere to the principles laid down in the
judgments aforementioned. The Magistrate
failed to bear in mind the impact of the
prohibition under section 196 of the Criminal
Procedure Code. Compliance with its
provisions was a prerequisite for taking
cognizance. The contents of the article in
question was liable to be scrutinized on the
touchstone
of
whether
it
contained
statements which met the basic ingredients
1532
 INDIAN LAW REPORTS ALLAHABAD SERIES
required to qualify as an act of ''sedition' or
an act intended to induce persons to commit
an offense against the State. Was the article a
call to arms, rebellion, insurrection? The
answer must obviously be in the negative.
The Magistrate in the opinion of the Court
clearly failed to apply judicial mind, acted
irresponsibly and failed to bear in mind the
caution and circumspection which should
have preceded his assuming jurisdiction and
issuing summons.
G. OPERATIVE DIRECTIONS
29. For the aforesaid reasons, the
instant application shall stand allowed.
Consequently all proceedings relating to
Complaint Case No. 382 of 2015 State v.
Arun Jaitley u/s 124A, 505 IPC P.S.
Kulpahar District Mahoba pending in the
court of the Judicial Magistrate Kulpahar
Mahoba U.P. as well as the order issuing
summons dated 19 October 2015 shall
stand quashed and set aside.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2015
BEFORE
THE HON'BLE MRS. RANJANA PANDYA, J.
Application U/S 482 No. 32940 of 2015
Mohit Chaudhary
 ...Applicant
Versus
State of U.P. & Anr.
.....Opp. Parties
Counsel for the Applicant:
Samit Gopal
Counsel for the Opp. Parties:
G.A.
Cr.P.C.-Section 482-Quashing of criminal
proceeding including summoning orderoffence u/s 213 Gangsters & Anti Social
Activities (Prevention) Act 1986-on ground
all charge sheet relied by authoritiesconcluded
in
acquittal-petitioner
being
Addl.