# Bhagwan Das v. The State of Rajasthan Kapur ]

- **Citation:** [1957] 1 S.C.R. 860
- **Court:** Supreme Court of India
- **Decided:** 1956-10-25
- **Case number:** CRIMINAL JuRrsDrcnoN : Petition No. 252 of 1956
- **Bench:** S. R. Da5 C.J, Jafer Imam, S. K. DAs, GoVINDA MEN0"1, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwan-das-v-the-state-of-rajasthan-kapur-1378
- **Pages:** 9

## Headnote

Insult to Religion-f_,atu making such insult an offence-Conrtitutional validity-If violates
freedo1n of speech and express;.011lndian Penal Code (Act XLV of 1860), s. 295A-Constitm1011 of
fodio, Arts. 19(1)(a), J9(2), 25, 26.
This \Vas a petition challenging the constitutional validity of
s. 29'5.\ of the Jndi;in Penal Code and for quashing the pcfitioner's
con\"iction
thereunder for
publishing
an
article in a
1-:ionthly
rnag:.izinc of \Vhich he \Vas the printer, publisher and the editor.
It
\',"ls
contended on
his
behalf that
the
impugned
section
infringed his fundamental right to freedom of speech and expression conferred by Art. l~(l )(a) of the Constitution and \Vas not a
hnv
i1np~sing reasonable restrictions on the right in the interests
of public order under d. (2) of Art. 19, which alone could have
afforded a justification for it.
field, that s. 295A of the Indian Penal Code was well with
the protection of cl. (2) of Art. 19 of the Constitution and
its
validity \Vas beyond question.
The expression "in the interests of" occurring in the amended
cl. (2) of Art. J 9 had the effect of making the protection afforded..
by that clause very wide and a law
not
directly
desigr.ed
to
maintain public order would well be
within
its
protection
if
such acti\•ites as it
penalised had a
tendency to
cause p·ublic
disorder.
Debi Soron v. The State of Bihar, A.LR. ( 1954) Pat. 254,
referred
to.
It was absurd to suggest that insult to religion as an offence
could have no bearing on public order so as to attract cl. (2) of
Art. 19 in view of the provisions of Arts. 25 and 26 of the constitution which, while guaranteeing freedom of religion, expressly
made it subject to public order.
S.C.R.
SUPREME COURT REPORTS
861 .
Nor, having regard to the language and ingredients of s. 295A
of the Indian Penal Code, could it be contended that the restnctions imposed by it _could be used for purposes other than those
falling within the limits of the Constitution.
Romesh Thappa1· v. The State of Madras, (1950) S.C.R. 594;
Brij Bushan v. The State of Delhi, (1950) S.C.R. 605 and Chintaman
Rao v. The State of Madhya Pradesh, (1950) S.C.R. 759, held ,
inapplicable.
ORIGINAL
CRIMINAL
JuRrsDrcnoN : Petition
No.
252 of 1956.
Petition under Article 32 of the Constitution for the
enforcement of fundamental rights.
Veda Vyasa, S. K. Kapur and Ganpat Rai, for the
petitioner.
G. C. Mathur and C. P. Lal, for the respondent.
1957. April 5. The Judgment of the Court was
deliverd by
DAs C.J.-This is a petition fiied under Art. 32. of
the Constitution of India praying for a declaration that
s. 295A of the Indian Penal Code is ultra vires and unconstitutional and for a writ in the nature of certiorari
quashi11g the petitioner's .mnviction under that
section
and for ancillary reliefs.
The material facts lie within a narrow compass. The
petitioner is the editor, printer and
publisher of a
monthly magazine called Gaurakshak. The
magazine
is devoted to cow protection. In July or August, 1954,
a Hindi Daily newspaper named 'Amrit Patrika' of
Allahabad printed and published an article or a cartoon
about a donkey on which an agitation -was started by
the muslims of Uttar Pradesh. The editor and printer
and publisher of 'Amrit Patrika' were prosecuted by the
State,
but
they
have
been
eventually
acquitted
by the High Court of Allahabad.
In the meantime,
in its issue for the month of Kartik Samvat 2009,
corresponding
to
November,
1952,
an article
was
published in the petitioner's magazine 'Gaurakshak.' On
December 12, 1952, the State Government ordered the
prosecution of the petitioner on the basis of the said
article._ Accordingly on June 8, 1953, a complaint was
filed in •he court of the District Magistrate, Kanpur,
1957
Ramji Lal Modi
v.
The State of U.P,
DasC,J.
1957
Ramji Lal Modi
v.
The State of U.P.
DasC.j.
862
SUPREME COURT REPORTS
[1957]
by
the
Senior
Superintendent
of
Police,
Kanpur,
against the petitioner for offences under ss. 153A and
295A of the Indian l>enal Code. Th

## Text

1957
Bhagwan Das
v.
The State of
Rajasthan
Kapur ].
1957
April 5.
860
SUPREME COURT REPORTS
[1957]
We would, therefore, allow this appeal, set aside the
judgment of the Rajasthan High Court, restore that of
the Sessions
Judge
and order the acquittal of the
accused.
Appeal allowed.
RAMJI LAL MODI
v.
THE STATE OF U.P.
(S. R. DA5 C.J., JAFER IMAM, S. K. DAs, GoVINDA
MEN0"1 and A. K. SARKAR JJ.)
Insult to Religion-f_,atu making such insult an offence-Conrtitutional validity-If violates
freedo1n of speech and express;.011lndian Penal Code (Act XLV of 1860), s. 295A-Constitm1011 of
fodio, Arts. 19(1)(a), J9(2), 25, 26.
This \Vas a petition challenging the constitutional validity of
s. 29'5.\ of the Jndi;in Penal Code and for quashing the pcfitioner's
con\"iction
thereunder for
publishing
an
article in a
1-:ionthly
rnag:.izinc of \Vhich he \Vas the printer, publisher and the editor.
It
\',"ls
contended on
his
behalf that
the
impugned
section
infringed his fundamental right to freedom of speech and expression conferred by Art. l~(l )(a) of the Constitution and \Vas not a
hnv
i1np~sing reasonable restrictions on the right in the interests
of public order under d. (2) of Art. 19, which alone could have
afforded a justification for it.
field, that s. 295A of the Indian Penal Code was well with
the protection of cl. (2) of Art. 19 of the Constitution and
its
validity \Vas beyond question.
The expression "in the interests of" occurring in the amended
cl. (2) of Art. J 9 had the effect of making the protection afforded..
by that clause very wide and a law
not
directly
desigr.ed
to
maintain public order would well be
within
its
protection
if
such acti\•ites as it
penalised had a
tendency to
cause p·ublic
disorder.
Debi Soron v. The State of Bihar, A.LR. ( 1954) Pat. 254,
referred
to.
It was absurd to suggest that insult to religion as an offence
could have no bearing on public order so as to attract cl. (2) of
Art. 19 in view of the provisions of Arts. 25 and 26 of the constitution which, while guaranteeing freedom of religion, expressly
made it subject to public order.
S.C.R.
SUPREME COURT REPORTS
861 .
Nor, having regard to the language and ingredients of s. 295A
of the Indian Penal Code, could it be contended that the restnctions imposed by it _could be used for purposes other than those
falling within the limits of the Constitution.
Romesh Thappa1· v. The State of Madras, (1950) S.C.R. 594;
Brij Bushan v. The State of Delhi, (1950) S.C.R. 605 and Chintaman
Rao v. The State of Madhya Pradesh, (1950) S.C.R. 759, held ,
inapplicable.
ORIGINAL
CRIMINAL
JuRrsDrcnoN : Petition
No.
252 of 1956.
Petition under Article 32 of the Constitution for the
enforcement of fundamental rights.
Veda Vyasa, S. K. Kapur and Ganpat Rai, for the
petitioner.
G. C. Mathur and C. P. Lal, for the respondent.
1957. April 5. The Judgment of the Court was
deliverd by
DAs C.J.-This is a petition fiied under Art. 32. of
the Constitution of India praying for a declaration that
s. 295A of the Indian Penal Code is ultra vires and unconstitutional and for a writ in the nature of certiorari
quashi11g the petitioner's .mnviction under that
section
and for ancillary reliefs.
The material facts lie within a narrow compass. The
petitioner is the editor, printer and
publisher of a
monthly magazine called Gaurakshak. The
magazine
is devoted to cow protection. In July or August, 1954,
a Hindi Daily newspaper named 'Amrit Patrika' of
Allahabad printed and published an article or a cartoon
about a donkey on which an agitation -was started by
the muslims of Uttar Pradesh. The editor and printer
and publisher of 'Amrit Patrika' were prosecuted by the
State,
but
they
have
been
eventually
acquitted
by the High Court of Allahabad.
In the meantime,
in its issue for the month of Kartik Samvat 2009,
corresponding
to
November,
1952,
an article
was
published in the petitioner's magazine 'Gaurakshak.' On
December 12, 1952, the State Government ordered the
prosecution of the petitioner on the basis of the said
article._ Accordingly on June 8, 1953, a complaint was
filed in •he court of the District Magistrate, Kanpur,
1957
Ramji Lal Modi
v.
The State of U.P,
DasC,J.
1957
Ramji Lal Modi
v.
The State of U.P.
DasC.j.
862
SUPREME COURT REPORTS
[1957]
by
the
Senior
Superintendent
of
Police,
Kanpur,
against the petitioner for offences under ss. 153A and
295A of the Indian l>enal Code. The Magistrate by
his order dated August 5, 1953, charged the petitioner
under ss. 153A and 295A and committed the petitioner
to the Sessions Court of Kanpur for trial. The petitioner pleaded not guilty. The learned Sessions Judge,
by his judgment dated November 16, 1953, acquitted
the petitioner of the charge under s. 153A but convicted
him under s. 295A and sentenced him to 18 months
rigorous imprisonment and a fine of Rs. 2,000 and, in
default of payment of the fine, to further rigorous
imprisonment of 4 months. The petitioner filed
an
appeal to the High Court at Allahabad. The learned
Single Judge, by his judgment dated October 25, 1956.
held that the article was published with the deliberate
and malicious intention of outraging the religious feelings of muslims and that the petitioner was
guilty
under s. 295A of the Indian Penal Code. The learned
Judge, however, reduced the sentence of imprisonment
to 12 months and the fine from Rs. 2,000 to Rs. 250
only. An application for certificate to appeal to
this
Court under Arts. 132 and 134 having been rejected by
the High Court on October 30, 1956, the petitioner
moved this Court for special leave to appeal from the
judgment of the Allahabad High Court dated October
25, 1956.
The petitioner also on December 5, 1956,
presented the present petition under Art. 32 for the
reliefs mentioned above. The petitioner also made an
application in this Court along with the writ petition
for stay of the sentence passed on him. On December
18, 1956, both the stay application and the petition for
special leave were dismissed by this Court. The petition under Art. 32 has now come up for hearing.
Presumably
the
petitioner has
surrendered
and
is
undergoing the sentence of imprisonment.
Learned counsel appearing in support of this petition
urges that s. 295A of the Indian Penal Code is ultra
vires and void inasmuch as it interferes with the pertitioner's right to freedom of speech :rnd
expression
guaranteed to him as a citizen of India by Art. 19( l) (a)
of our Constitution. The contention is that this section
t-
S.C.R.
SUPREME COURT REPORTS
863
cannot be
supported
as a law
imposing reasonable
restnct1ons on the exercise of the right conferred by
Art. 19(1) (a) as provided in cl. (2) of the said Article.
Learned counsel says that the interest of public order
· is the only thing in cl. (2) which may possibly be relied
upon by the State as affording a justification for its claim
for the validity of the impugned section. A law interfering with the freedom of speech and expression and
imposing
a
punishment for
its
breach
may,
says
counsel, be "in the interests of public order" only if the
likelihood of public disorder is made an ingredient of
the offence and the prevention of public disorder is a
matter of proximate ancl
not
remote
consideration.
Learned counsel points out that insulting the religion
or the religious beliefs of a class of citizens of India
may not lead to public disorder in all cases although
it may do so in some case. Therefore, where a law
purports, as
the
impugned section does, to authorise '
the imposition of restriction on the
exercise
of
the
fundamental right to freedom of speech and expression
in language wide enough to cover restrictions
both
within and without
the limitation of constitutionally
permissible legislative action affecting such right, the
court should not uphold it even in so far as it may be
applied within
the
constitutionally permissible
limits
as it is not severable. So long as the possibility of its
being applied for purposes not sanctioned by the Constitution cannot be ruled out it must, according
to
learned counsel, be held to be wholly unconstitutional
and void.
Reference has been made to the cases of
Ramesh Thappar v. The State of Madras( 1 )
and Brii
Rushan v. The State of Delhi( 2 ).
In Ramesh Thappar's case, in exercise of powers
conferred on him by s. 9(1-A) of the Madras Maintenance of Public Order Act, 1949, the Governor of Madras,
being satisfied that for the purpose of securing public
safety and the maintenance of public order it was
necessary so to do, prohibited the entry into or the
circulation, sale or distribution in the State of Madras
or any part thereof of the newspaper entitled
'Cross
Roads',
an
English Weekly
published
at
Bombay.
< 1) 1950 s.c.R. 594.
(2) 1950 s.c.R. 605.
1957
Ramji Lal Modi
v.
Tk Mate of U.P.
DasC.J.
1957
RanVi Lal Modi
v.
Tire State of U.P
DtU C. J.
864
SUPREME COURT REPORTS
[1957]
The impugaed section-s. 9(1-A)-was a law enacted
for the purpose of securing the public safety and tht·
maintenance of public order. 'Public order' was said
to be an expression of wide connotation and to signify
that state of tranquillity which prevailed among the
members of a political society as a result of the internal
regulation enforced by the Government which they had
established.
'Public safety' used in that section
was
taken as part of the wider concept of 'public order'.
Clause (2) of Art. 19, as it stood then, protected a law
relating, inter alia, to a matter which undermined the
securitv of or tended to overthrow
the State.
Some
breach. of public
safety
or pubHc
order may
conceivalily undermine the security of or tend to overthrow
the State, but equally
conceivably many
breaches of
public
sofety
or public order may
not
have
that
tendency. Therefore, a law which imposes restrictions on
the freedom of speech and expression for preventing a
breach of public safety or public order which may not
undermine the security of the State or tend to o\erthrow the State cannot claim the protection of cl. (2) of
Art. 19.
Section 9(1-A) was challenged as it embraced
both species of activities referred to above and as . the
section was not sever
th' whole section was held
to be bad.
In Brij
Bushan's case
(supra)
the validity of
s. 7(1) (c) of the East Punjab Public Safety Act, 1949,
as extended to
the Province of Delhi, came up for
consideration.
Thit
section
provided
th3t
('t1•e
Provincial Government or any ~uthority authorised
!)y
it in this behalf, if satisfied that such action is necessary
for
preventing
or
combating
any
activity
prejudicial to the public safety or the maintenance of
public order, may, by order in writing addressed to the
. printer, publisher or editor, require that anv matter
relating to a particular subject or class of subjects shall
before publication be submitted for scrutiny".
It was
held by this Court (Fazl Ali f. dissenting) that inasmuch as
the
section
authorised
the
imposition
of
restrictions on the· fundamental right to freedom
of
speech and expression guaranteed by Art. 19(1) (a) for
the purposes
of preventing activities
prejudicial
to
S.C.R.
SUPREME COURT REPORTS
865
public safety and maintenance of public order, it was
not a law solely relating to a matter which undermined
the security of or tended to overthrow the State within
the meaning of cl. (2) of Art. 19 as it then stood. The
principles laid down in Rome sh T hap par's case were
applied to this case and the law was held to be void.
The case of Chintaman Rao v. The State of Madhya
Pradesh(1) has also been relied upon in support of the
contention that where the language employed in the
Statute is wide
enough
to cover
restrictions
on
a
fundamental right both within and without the limits
of constitutionally permissible legislative action affecting the right and the possibility of its being applied for
purposes not sanctioned by the Constitution cannot be
ruled out, the law must be held to be wholly void .
. After this Court decided the cases of Romesh Thappar
(supra) an<l Brij Bushan (supra), cl. (2) of Art. 19 of
the Constitution was amen<led. Clause (2), as amende<l,
protects a law in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by
sub-cl. (a) of cl. (1) of Art. 19 "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." The question for our consideration is whether
the impugned section can be properly said to be a law
imposing reasonable restrictions on the exercise of the
fundamental right to freedom of speech and expression
in the interests of public order. It will be noticed that
the language employed in the amended clause is "in the
interests of" :ind not "for the
maintenance of".
As
one of us i'ointed out in Debi Soron v. The State of
Bihar(
2 ), the expression "in the interests of" makes the
ambit of the protection very wide.
A law may
not
have been designed to ·directly maintain public order
and yet it may have been enacted in the interests of
public order.
It is pointed our that s. 295A has been included in
chapter XV of the Indian Penal Code which deals with
(I) 1950 S.C.R.F59.
(2) A.l.R. 1954 Patna 254.
1957
Ramji Lal M,,J;
v.
T"4 Stat1 1/ U.P.
Das C. 7.
1957
Rarriii Lal Modi
v.
The State of U.P.
DasC.]·
866
SUPREME COURT REPORTS
(1957}
offences relating to religion and not in chapter VIII
which deals with offences against the public tranquillity
and from this circumstance it is faintly sought to be
urged, therefore, that offences relating to religion have
no bearing on the
maintenance of public order or
tranquillity
and,
consequently,
a
law
creating an
offence relating to religion and imposing restrictions on
the right to freedom of speech and expression cannot
claim the protection of cl. (2) of Art. 19. A reference
to Arts. 25 and 26 of the Constitution, which guarantee
the right to freedom of religion, will show that the
argument is utterly untenable. The right to freedom
of religion assured by those Articles is expressly made
subject to public order, morality and health. Therefore,
it cannot be predicated that freedom of religion can
have no bearing whatever
on
the
maintenance
of
public order or that a law creating an offence relating
to religion cannot under any circumstances be said to
have been enacted in the interests of public order.
These two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed hy them
in the interests of public order.
Learned counsel then shifted his ground and formulated his objection in a slightly different way.
Insults
to the religion or the religious beliefs of a class
of
citizens of India may, says learned
counsel, lead to
public disorders in some cases, but in many cases they
may not do so and, therefore, a law which imposes
restrictions on the citizem' freed om
of
speech
and
expression by
simply making insult to religion
an
offence will cover both varieties of insults, i.e., those
which may lead to public disorders as well as those
which mav not. The law in so far as it covers the first
variety m~y be said to have been
enacted in the
interests of public order within the meaning of cl. (2) ot
Art. 19, but in so far 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,
S.C.R. ·
SUPREME COURT REPORTS
867
to accede to this argument. In the first place cl. (2) of
Art. 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 order. In the next
place s. 295A does not penalise any and every act of
insult to or attempt to
insult the
religion
or the
reiigious beliefs of a class of citizens but it penalises
onlv those acts
of insults
to or those
varieties of
attempts to insult the religion or the religious beliefs
of a class of citizens, which are perpetrated with the
deliberate and
malicious intention of outraging the
religious
feelings of that class.
Insults to religion
offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious
feelings of that class do not come within the section.
It only punishes 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.
The
calculated
tendency
of
this
aggravated form of insult is clearly to disrupt the
public order and the section, which penalises such
acti\'ities, is well within the protection of cl. (2) of Arr.
19 as being a law imposing reasonable restrictions on
the exercise of the right to freedom of speech
and
expression guaranteed by Art. 19( 1 )(a). Having regard
to the
ingredients
of the
offence
created
bv
the
impugned section, there cannot, in our opinion, be any
possibility of this law being applied for purposes not
sanctioned by the Constitution.
In other words, the
language employed in the section is not wide enough
to cover restriction_ both within and without the limits
of constitutionally permissible legislative action affecting the fundamental right guaranteed by Art. 19(l)(a)
and consequently, the question of severability does not
3-8() S. C. Indial59
1957
Ramji Lal Modi
v.
The Stale of U.P.
Das C.J.
19~7
Ramji Lai Modi
v.
Tht State of U.P.
Das C. J.
1957
April 5·
868
SUPREME COURT REPORTS
(1957]
arise and the decisions relied upon by learned counsel
for the petitioner have no application to this case.
For the reasons stated above, the impugned section
falls well within the protection of cl. (2) of Art. 19 and
this application must, therefore, be dismissed.
'
Application dismissed.
THE ST A TE OF MAD HY A PRADESH
fl.
VEERESHW AR RAO AGNIHOTRY
(S. R. DAs C.J., JAFER IMAM, S. K. DAs, GoVINDA
MENON and A. I).. SARKAR JJ.)
Autrefois acquit-Trial for offences under s. 409 of the Indian
Penal Code and s. 5(2) of the Prevention of Corruption ActAcquittal of charge under s. 5(2)-Whether conviction under s. 409
barred-Code of Criminal Procedure s. 403-Constitution of India
Art. 20(2 )-General Clauses Act s. 26.
'fhe accused was tried by a Special Judge for offences under
s. 409 of the Indian Penal Code and s. 5(2) of the Prevention of
Corruption Act.
He was convicted under s. 409 but the Judge
held that the accused could not be tried under s. 5(2) as there had
been no investigation by a police officer not below the rank of a
Deputy Superintendent of Police.
Upon appeal by the accused
against the conviction under s. 409, the High Court applying the
doctrine of autrefois acquit held that the order of
the Judge in
respect of the charge under s. 5(2) was tantamount to an acquittal
for that offence and on the same facts no conviction coul<l be had
under s. 409 :
Held, that the offences under s. 409 of the Indian Penal Code
and under s. 5(2) of the Prevention of Corruption Act were distinct
and separate and there could be no objection to a trial and convic·
tion under s. 409 even if the accused had been acquitted under
s. 5(2).
Om Prakash Gupta v. The State of U.P., [1957) S.C.R.423,
applied.
Section 403( I) of the Code of Criminal Procedure has no
application where there is only one trial for several offences, of
some of which the accused person is acquitted though convicted
of one.
Article 20 of the Constitution also docs not apply where
the accused had not already been\ tried and acquittl"'r' for the same
offence ·in an earlier trial.
•