# KEDAR NATH SINGH v. STATE OF BIHAR

- **Citation:** [1962] Supp. 2 S.C.R. 769
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. RAJAGOPALA AYYANGARand J.R. MunHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kedar-nath-singh-v-state-of-bihar-2343
- **Pages:** 44

## Headnote

Sedition-Content of-Siatute pa11aliai11g
lfeditian and
statement• e-0nduci11g to public mischief-Constitutio11alit11 ofWhetkerinfringesfreedom cf apeech--lndian l'e•al Code, 1860
(Act XLV of 1860), ss. 12!A, 50j-Constitution of India,
Art6. (19)(l}(a}, 19(2).
Secdon 124:\ of the Indian Penal Code which makes
sedition an offence is· constitutionally valid. Though the
section imposes restrictions on the fundam,ntal freedom of
I96t
A. lie ,j/)tfuJhdlr
v.
Tiu 8tat1 of Kerola
Blah J.
1~1
li•ti•r N•tA Sin1h
..
Slldl •f BWir
770
SUPREME COURT REPORTS (1962) SUPP.
speech and expression, the restrictions are in the interest of
public order and are within the ambit of permissiblr. legislati\'e intrrferrnce with the fundamental right. Th<re is a
confli.ct on the <juestion of the ambit of s. 124A between
decision of the Federal Court and of the Privy Council. The
Federal Court has hdd that words, deeds or writings constitutrd an offence nuder s. 12-!A only when they had the intention
or tendency to disturb public tranquility. to create public
disturbance or to promote disorder; whilst the Privy Council
has taken the view that it was not an essential ingredient of
the offence of sedition under s. 124A that the words etc,
should be intended to or be likely to incite public disorder.
Either view can he taken and supported on good reasonss.
If
the view taken by the Federal Court was accepted s. 124A
\vould be use constitutional but if the view of the Privy Council
'''as accepted it would he unconstitutional. It is well settled
that if c~rtain provisions of law construed in one way \\·ould
n1ake then1 cr1nsiste-nt \\·ith the constitution, and another
i11terpretatirin \vould render them unconstitutional, the Court
v.·otild Jean in favour of the former construction.
Keeping in
mind the ""'ons for the introduction of•· 124A and the history
of sedirion the ~cction must be so construed as to limit its
application to acts involving intention or tendency to crcat
disorder, or disturbance of law and order; or incitement to
violence.
Niharrndu Dult Majumcla.r v. King Emptror, (1942)
F. C. R. 38, followed.
King Rmptror v. Sada.hivNarayan Bha/erao, (1947) L.R.
74 I.A. 89 and WaUaa Johnson '" The King (1940) A. C. 231,
not followed.
Romes/, T!.apar v. The Stale of Madras. (1050) S. C R.
594. Rrij mu.•han v. Ti.e State of Ddhi. (1950) S. C.R. 605
and R,,mji lo/ Modi v. Th• State U. l'. (1957) S. C.R. 860,
f('ferred to.
,.
The l}:w~aUmmunit11 Company Limited v. The State of
J,•hur, (10.1:1;. S. C R. (,1)3 and R. M. D. Cl,amar6a11gu-a/.a v.
'/'/,., t•,,;,,,, rf India, [1957] S. C.R. 936 applied.
Each one of the c:on<.tituent elements of the offence
of 1~akin.g, pu.blbhi~g or circulating: !ltatements conducing to
public: much 1ef.
pur11sh~tble under s . .505 of the Indian Pchal
Code, ~ad reference. tn,
~rid a dirt~ct efrer:t ~n_. the security
of the State nr pulilir; c1r<.1-r.
1-len<:c the provhtons of s. 505
wt-rr clearly s:lvcd by .i\rt. I 111 ~}.
f;nun".u. ArrEJ.L\T1·: .T1•1:1~11w1 ,.,.._ :- f;rimiual
Appeal No. Hill of l!Jli7.
2 s.c.R.
SUPREME COURT REPORTS
771
Appeal by special leave from the judgment
and order dated the April II, 195tS, of the Patna
High Court in Cr. A. No. 445 of 1955.
WITH
Criminal Appeals Nos. 124 to 126of1958.
Appeals from the judgment and order dated
May 16, 1958, of the Allahabad High Court in
Criminal Appeals Nos. 76 and 108 of 1955 and Cr.
M. Writ No. :!~71 of 1955.
Janar<lan Sharma for appellant in Criminal
Appeal No. 169 of 1957 :-The appellant has been
convicted under ss, l 24A and 50.5 Indian Penal
Corle.
Both these sections are ultra vires as they
contrayene the provisions of Art. 19(l)(a) of the
Constitution. A speech may disturb public order
or it may not, but both are made punishable under
section 124A.
The section hits speeches of both
varieties-permissible speeche.s and impermissible
speeches. The explanation to section 124A do not
affect the interpretation of the main section. In a
democratic set up a citizen is enti

## Text

_Characters 0–39,947 of 84,333. This is a partial read: ask again with offset=39947 for what follows._

~ S.C.R.
SUPREME COURT REPORTS
769
framed thereunder which required licences to be
taken out for storage of tobacco and for payment of
licence fee in respect thereof and to that extent the
provisions imposing an obligation to take out
licences and to pay licence fees under the Tobacco
Acts of Travancore and the Cochin States were
superseded and the State of Travancore-Cochin had
no authority to promulgate rules 14, 15 and 16
under the Notification issued in the TravancoreCochin Government Gazett.e dated January 25, 1951,
and to levy licence fee for storage of tobacco.
It is unnecessary to ·consider whether the
remaining provisions of the Travancore and the
Cochin Tobacco Acts and th~ Rules framed thereunder were law correspondirrg with the Central
Excises and Salt Act, 1944.
For these reasons I agree that the appeals be
allowed, and the order passed by the High Court be
set aside. In each petition a writ will issue declaring that the levy of licence fee undPr the Notification dated January 25, 1951, is without authority
of law, and that the State of Travanc.1re-Cochin
do forbear from levying and collecting the licence
fee.
Appeals allowed.
KEDAR NATH SINGH
v.
STATE OF BIHAR
(B. P. SINHA, C,J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGARand J.R. MunHOLKAR, JJ.)
Sedition-Content of-Siatute pa11aliai11g
lfeditian and
statement• e-0nduci11g to public mischief-Constitutio11alit11 ofWhetkerinfringesfreedom cf apeech--lndian l'e•al Code, 1860
(Act XLV of 1860), ss. 12!A, 50j-Constitution of India,
Art6. (19)(l}(a}, 19(2).
Secdon 124:\ of the Indian Penal Code which makes
sedition an offence is· constitutionally valid. Though the
section imposes restrictions on the fundam,ntal freedom of
I96t
A. lie ,j/)tfuJhdlr
v.
Tiu 8tat1 of Kerola
Blah J.
1~1
li•ti•r N•tA Sin1h
..
Slldl •f BWir
770
SUPREME COURT REPORTS (1962) SUPP.
speech and expression, the restrictions are in the interest of
public order and are within the ambit of permissiblr. legislati\'e intrrferrnce with the fundamental right. Th<re is a
confli.ct on the <juestion of the ambit of s. 124A between
decision of the Federal Court and of the Privy Council. The
Federal Court has hdd that words, deeds or writings constitutrd an offence nuder s. 12-!A only when they had the intention
or tendency to disturb public tranquility. to create public
disturbance or to promote disorder; whilst the Privy Council
has taken the view that it was not an essential ingredient of
the offence of sedition under s. 124A that the words etc,
should be intended to or be likely to incite public disorder.
Either view can he taken and supported on good reasonss.
If
the view taken by the Federal Court was accepted s. 124A
\vould be use constitutional but if the view of the Privy Council
'''as accepted it would he unconstitutional. It is well settled
that if c~rtain provisions of law construed in one way \\·ould
n1ake then1 cr1nsiste-nt \\·ith the constitution, and another
i11terpretatirin \vould render them unconstitutional, the Court
v.·otild Jean in favour of the former construction.
Keeping in
mind the ""'ons for the introduction of•· 124A and the history
of sedirion the ~cction must be so construed as to limit its
application to acts involving intention or tendency to crcat
disorder, or disturbance of law and order; or incitement to
violence.
Niharrndu Dult Majumcla.r v. King Emptror, (1942)
F. C. R. 38, followed.
King Rmptror v. Sada.hivNarayan Bha/erao, (1947) L.R.
74 I.A. 89 and WaUaa Johnson '" The King (1940) A. C. 231,
not followed.
Romes/, T!.apar v. The Stale of Madras. (1050) S. C R.
594. Rrij mu.•han v. Ti.e State of Ddhi. (1950) S. C.R. 605
and R,,mji lo/ Modi v. Th• State U. l'. (1957) S. C.R. 860,
f('ferred to.
,.
The l}:w~aUmmunit11 Company Limited v. The State of
J,•hur, (10.1:1;. S. C R. (,1)3 and R. M. D. Cl,amar6a11gu-a/.a v.
'/'/,., t•,,;,,,, rf India, [1957] S. C.R. 936 applied.
Each one of the c:on<.tituent elements of the offence
of 1~akin.g, pu.blbhi~g or circulating: !ltatements conducing to
public: much 1ef.
pur11sh~tble under s . .505 of the Indian Pchal
Code, ~ad reference. tn,
~rid a dirt~ct efrer:t ~n_. the security
of the State nr pulilir; c1r<.1-r.
1-len<:c the provhtons of s. 505
wt-rr clearly s:lvcd by .i\rt. I 111 ~}.
f;nun".u. ArrEJ.L\T1·: .T1•1:1~11w1 ,.,.._ :- f;rimiual
Appeal No. Hill of l!Jli7.
2 s.c.R.
SUPREME COURT REPORTS
771
Appeal by special leave from the judgment
and order dated the April II, 195tS, of the Patna
High Court in Cr. A. No. 445 of 1955.
WITH
Criminal Appeals Nos. 124 to 126of1958.
Appeals from the judgment and order dated
May 16, 1958, of the Allahabad High Court in
Criminal Appeals Nos. 76 and 108 of 1955 and Cr.
M. Writ No. :!~71 of 1955.
Janar<lan Sharma for appellant in Criminal
Appeal No. 169 of 1957 :-The appellant has been
convicted under ss, l 24A and 50.5 Indian Penal
Corle.
Both these sections are ultra vires as they
contrayene the provisions of Art. 19(l)(a) of the
Constitution. A speech may disturb public order
or it may not, but both are made punishable under
section 124A.
The section hits speeches of both
varieties-permissible speeche.s and impermissible
speeches. The explanation to section 124A do not
affect the interpretation of the main section. In a
democratic set up a citizen is entitled to criticise
the Government with a view to change it. Two
questions arises in the case, namely ( i) does s. 124A
enact a law which is in the interest of public ordAr
and (ii) does this section impose reasonable restrictions in the interest of public order. The decision
in I. L. K (1958) !! All. !l4 which has declared
s. 124A to be ultra i·ires takes the correct law.
R. C. Prasad, for respondent in
Criminal
Appeal No. 169 of 1957 :-Hefer.red to the decision
in Ramji Lal'ilfodi v. State of U.P. [1957] S.C.R. 860.
Stated that he would adopt the submissions to be
made by Shri C. B. Agarwala.
0. B. Agaru-aln for the appellant in Criminal
Appeals Nos. 124 to 126 of 1958 :-The correct
meaning of the provisions of s. 124A in the context
1962
Kida• Nati Binp
••
Slol1 of Biho
11181
K«iar Nat!i SU.,4
Y.
Sia/• of Bi.6"'
772 SUPREME OOURT REPORTS (19fi2] SUPP.
of tha present set up and the Constitution is that
giv11n b.v the Federal Court in Niharendu Dutt's ca~e.
1942 F. C. R. 38 and not the meaniniz l(iven to
them by the Privy Council in Bhalerao'~ caae 74
I. A. 89. Intepretation by Courts of words of
stPtutes to a particular set of facts has been changing with the change in tho social and political
e~ructure of societ.y and the opinion of its reasonnble
members. Section I ~4A is in a. chapter which deals
with offonces against the State. Therefore, it is
not a. case of libel against a.ny officer but of an
offence &!!ainst tho .State. Words in tho i<}nglish
law relating to sedition are the same as in s. I 24A
vide Stophen's COmmentary on the law of England,
Vol. 4, page 141, Halshury's Law of England 3rd
Edition, Vol. IO, page 169, Jowitt's Dictionary of
f'~nglish law, page 1605, Stephen's History of Criminal La.w, Vol. 2, page 2!)8 and 301 Chapter 24.
Under English La.w a tendency to create tumult or
disorder is an eseentia.l elAment of sedition. Kussel
on Crimes, Vol. I, p. 22!), R. v. Collins, 173 E . .H.
910.
R. v. Sullivan, 11 Cox. 44.
Section 124A
has been taken from the English Law (see 22
Bom. 15:!). Section 124A must, therefore, be interpreted in the same manner as sedition is interpreted
in England and it must be held that a. tendency to
disturb public order is an essential element of the
offence under s. 124A. Articles 1:13 and 133A of
the Canadian Criminal Codo which
dee.I with
sedition have been given the samo interpretation,
1931, Canadian .S. C. R. 265. The view taken in
Tilak's caAe 22 Bom. ll 12, in Bhalerao's caso 74
I.A. 89 and in Wallice Johnsons CME' (1910] A.C. 231
that inritement to violpnce or a tendency to di~turh
public ardor wa.a not n necessary ingredient of
s. l24A, is not the correct view.
194~ F. C. R. 3?!
takes tho correct view a.nd Jays down that the
tendency to disturb public order is a. ne(){'ssary
ingredient of the offence under s. 12-lA.
Devi
Sara.n's cast' 32 Pat. 1124 also t~k<'s tho ~am<' vit·w.
2 S.C.R.
SUPREME COURT REPORTS
773
There are two interpretations of s. l24A before the
Court, one taken b:v the Federal Court and tho
other taken by the
0 Privy Council. This Court
should acce11t the interpretation given by the
Federal Court, as that interpretation would make
the section constitutional. Even if the interpretation put by the Privy Council be accepted ad correct
one, section 124A will still be valid. The section
certainly contemplates cases where the speech is
likely to disturb public order and as such the section
in the interest of public order as contemplated in
Art. 11!(2) and the mere fact that some cases in
which the public order is not likely to be disturbed
are also
included
therein,
eannot invalidate
the section. This court took a similar view in
Ramjilal Modi's case [1957J S. C. H.. 860 and in
Virendra's case [1958) 8. C. R. il08, the decision in
Lohia's case [1960) 2 ::;. C. R. 821 does not affect
this case, as in that case it was found that the
provisions curtailing freedom of speech were not in
the interest of public order as the connection between the provisions and disturbance of public order
was too remove. Even if the section be held
according to the Privy Council view to include
cases whieh threaten public order and those which
do not, the section can be held valid with respect
to cases where public order is threatened as the two
types of cases are severable. [1957) S. C.R. 930,
A. I. R. (1941] F. C. 72 [1951] S. C. R. 682, [1953]
S. C. R. 1059 and 65 L. Ed, 1139.
S. P. Verma for the AttornE'y-General of
India :-Article 374(2) of the Constitution provides
that decision of the Federal Court shall have the
same effect as the decision of the Supreme Court.
The decision of the Federal Court in 1942 F.C.R. 38
should be deemed to be a decision of this Court and
should be held binding. A tendency to disturb
public order is inherent in s. 124A itself.
Gopal Bihari for respondent in Criminal Appeal
No. 124 of 1958 :-The interpretation of s. 124A by
1962
Kttlar N' th Sinih
v.
Stal• ef .aiMr
JHt
~- N.U. Bi.,A
...
SW.of Bu
774 SUPH.EME OOURT REPORTS [1962] SUPP.
the Privy Council has been accepted by tho High
Court. Even in English Law sedition does not
neoessarily include an intention to disturb publio
order, 79 C. L. R. IOI. Explanations (2) .and (3)
would be redund~nt if section l 24A is interpreted
to incorporate the English view of sc dition. The
Allahabad High Court as well as other High Courts
have given the same interpretation of s. l24A as the
Privy Council has. See 1941 All. 156, 1930 Lah. 309,
56 Cal. 1085 and IO Luck. 712.
The decision in
Lohia's case [1960] 2 S.C.R. 821 governs the present
case also Section l24A punishes such speeches also
as have no tendency to disturb public order and
oontravenes Art. 19( l)\a.). · It is not saved by Art.
19(2) as placing of restriction on such speechos is
not in the interest of public order. It is not open to
the Court to rewrite the section by removing from
its purview such speeches as have no tendency to
disturb public order and to confine it to such
speeches as have a tendency to disturb public
order. The whole section must fail;
it cannot
be dissected.
C. B. Agarwala in reply :-In English law it
is a necessary ingredient of seditious intention that
it mWlt have a tendency to cause tumult or disorder
R. v. Aldred, 22 Cox. C. C. l, R. v. Burdott, 106 E. R.
873; R. v. O'Brien, 6 St. Tr. (N. S.) 571. The Privy
Council has only said that actual incitement to
violence was not a necessary ingredient of s. l 24A.
It has not gone further and has not laid down that
tendency to disturb public order was not a neceseary
ingredient of s. 124A. Even though public disorder
is not an ingrodient of the offence under s. 124A,
there is a tendency to disturb public order in
speeches or writings which bring or attempt to
bring into hatered or contempt or excite or attempt
to excite dissatisfaction towards the Government
established by law.
1962. January 20. The Judgment of the court
was delivered by
2 S.C.R.
SUPREME COURT REPORTS
775
SINHA, C. J,-In these appeals the main question in controversy is whether ss. 124A and 505
of the Indian Penal Code have become void in view
of the provisions of Art. l!l(l)(a) of the Constitution.
The constitutionality of the provhions of s. 124A,
which was mainly canvassed before us, is common
to all the appeals, the facts of which may shortly
be stated separately.
In Criminal Appeal 169 of 1957, the appellant
is one Kedar Nath Singh, ·who was prosecuted before a Magistrate, 1st Class, at Begusarai, in the
district of Monghyr, in Bihar. He framed the following charges against the accused person, which are
set out in extenso in order to bring out the gravamen of the charge against him.
•'First.-That you on 26th day of May,
1953 at village Barauni, P. S.
Taghra
(Monghyr) by speaking the words, to wit, (a}
To-day the dogs of the C. I. D. are loitering
round Barauni. Many official dogs are sitting
even in this meeting. The people of India
drove out the Britishers from this country
and elected these Congress goondas to the gaddi
and seated them on it. To-day these Congress
goondas are sitting on the gaddi due to mistake
of the people. When we drove out the Britishers, we shall strike and turn· out these
Congress goondaa as well. These official dogs
will also be liquidated along with these Congress goondas. These Congress goondas are
banking upon the American dollars and
imposing various kinds of taxes on the
people to-day. The blood of our hrothersmazdoors and Kishans is being sucked. The
capitalists and the zamindars of this country
help these Congress goondas. These zamindars
and capitalists will also have to be brought
before the people's court along with these
Congress goondas.
1968
K1dar N •lh Singh
••
Slate of Bihar
Sinha C. J.
1162
Xtd"' lt•U Si"IA
••
S tot, •J Bii<'
sw..c. J,
776 SUPRE;\IE COURT llEPORTS [1962) SUPP.
(b}
On th1> strength of the organisation
and unity of Kisans and mazdoors the Forward Communists Party will expose the black
deeds of the Congress goondas, who are just
like the Britishers. Only tho colour of the
body has changed. They have to·d,_y established a rule of la.this and bullets in the country, The Britishers had to go away from this
land. They had aeroplanes, guns, bombs and
other weapons with them.
(c) The Forward Communist Party does
not believe in the doctrine of vote itself. The
party had always beon believing in revolution
and does so evon at present. We believe in
that revolution, which will come and in the
flames of which the capitalists, za.mindars and
tho Congreas leaders of India, who have ma.de
it their profession to loot the country, will be
rnduced to ashes and on their a.shes '\\'ill be
established a Government of the poor and tho
downtrodden people of India.
(d) It will boa mhltake to o:i:pect any·
thing from the Congrell8 rclers. They (Cullgress rulers) have set up V. Bhavc in tho
midst of the people by causing him w· .. ~· a
laugoti iu order to divert the people's att<>ntion from their mistakts. Tu-day Vmova is
playing a • :rama on the stage uf Indian politics. Cvnfw.ion is being crt>ated among the
peopk. I \fant to tell Vinova and advice his
agents, "you should understand it that the
people cannot be deceived by this Y ojna,
illusion and fraud of Vi nova". l shall advise
Vinova not to become a puppet in tho hands
of the CongrBBll men. These persons, who
understand the Yojna of Vinova, realise that
Vinov<l. is an agent of tho Congress Govern·
ment.
(c)
I tt.JI you that th.ib CongreBS Government will do no good to you.
2 s.c.R.
SUPREME COUR'r REPORTS
777
(f) I want to tell the last word even to
the Congress Tyrants, "you play with the
people and ruin them by entangling them in
the mesh of bribery, black-marketing and
corruption. To-day the children of the poor
are hankering for food and you Congress men
are assuming the attitude of N awabs sitting
on the chairs ... "
Brought or attempted
to bring into
hatred or contempt or excited or attempted
to exc'te disaffection towards the Government
established by law in the Indian Union and
thereby committed an offence punishable
under section 124A of the Indian Penal Code
and within my cognizance.
Secondly.-That you on the 26th day of
May, 1953 at village Barauni, P. S. 1'egra
(Monghyr) made the statement, to wit,
(a)
To-day the dogs of the U. I. D. are
loitering round Barnuni. Many official dogs
are sitting even in this meeting.
The people
of India drove out the Britishers from this
count.ry, and elected these Congress Goondas
to the gaddi and seated them on it. To-day
these Congress Goondas are sitting on the
gaddi due to the mistake of the people. When
we have driven out the Britishers, we shall
strike and turn out these Congress Goondas
as well. These official dogs will also be liquidated along with these Congress Goondas.
These Congress Goondas are banking upon
the American dollars and impoHing various
kinds of taxes on the people to-day. The
blood of our brothers l\!Iazdoors an"d Kisans
is being sucked. Th'3 capitalists and the
zamindars of this country help these Congress
Goondas.
These zamindars and capitalists
will also have to be brought before the people's
Court
along
with
those
Congress
Goondas.
1962
Kedar NGth Sing~
v.
Stat4 of Bihar
1
tJinha C J.
JHJ
K• Noa SllWA
v.
8W.•JBW.
SW.. C. J.
778 Sl'.PRE:ME C'OtRT REI ORTS [1962) SUPP.
(b) On the strength of organisation and
unity of kisans and mazdoors the Forward
Communist Party will expose the black-deeds
of the Congrr88 Goondas, who are just like
the Briti8hern. Only the colour of tho body
has changed. They have, to-day, established
a rule of lathis and bullets jn the country.
The Britishers had to go a.way from this land.
Tht>y had aeroplanes, guns, bombs, a.nd othor
reasons with them.
(c) The Forward Communist party docs
not believe in the doctrine of voteA itself.
The party had always been bl•lieving in
revolution a.nd does eo even at present.
We
believe in that revolution, which will come
a.nd in the flames of which the capitalists,
zamindars and the CongreBB leaders of India,
who have made it their profession to loot the
country, will be reduced to ashes, and on
their aahes will be established a Government
of the poor and the downtrodden people of
India.
(d) It will be a mistake to expect anything frem
the Congress
rulers.
They
(Congress rulers) ha,·e set up V. Bhav11 in the
mid8t of the people by causing him wear a.
langoti in order to divert the attention of the
people from their mistakes. To-day Vinoba
is playing a drama on the stage of Indian
politics. Confusi011 is being created among
the people.
I want to tell Vinova and advise
his agents, "You should understand it that
the people cannot be deceived by this Yojna,
illusion and fraud of Vinova.
I shall advise
Vinova not to become a puppet in the hande
of the Congress men. Those persons who
understand the Y ojna of Vin ova, realise that
Vinova is an agent of Congress Government.
2 S.C.R.
SUPREME COURT REPORTS
779
(e) I tell you that no good will be done
to you by this Congress Government.
( f) I want to teJI the last word even to
Congress tyrants "you play with tho people
and ruin them by entangling them in the mesh
of bribery, black-marketing and corruption.
To-day the children of the poor are hankering
for food and you {Congress men) are assuming
the attitude of Nawabs
sitting
on
the
chairs" .......
with intent to cause or which was likely
to cause fear or alarm to the public whereby
any persons might be induce to commit an
offence against the State of Bihar and against
the public tranquility, and thereby committed
an offence punishable under section 505(b) of
the Indian Penal Code and
within
my
cognizance.''
After recording a substantial volume of oral
evidence, the learned Trial Magistrate convicted the
accused person both under ss. l24A and 505(b) of
the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year. No separate
sentence was passed in respect of the conviction
under the latter section.
The convicted person preferred an appeal to the
High Court of Judicature at Patna, which was heard
by the late Mr. Justice Naqui lm'.ctm, sitting singly.
By his judgment and order dated April 9, 1956, he
upheld the convictions and the sentence and dismissed the appeal. In the course of his Judgment, the
learned Judge observed that the subject matter of the
charge against the appellant was nothing but a
vilification of the Government ; that it was full of
incitements to revolution and that the speech taken
as a whole was certainly seditious. It is not a speech
criticising any particular policy of the Government
or criticising any of its measures. He held that the
offences both under ss. l24A and 505(b) of the
Indian Penal Code had been made out.
J96B
Kedar N •IA Singh
v.
Slala of Bihar
Sinlra C J,
1H2
Irr/or N •lh Hn&h
Y.
StMt e/ Bihar
SiaAa c. J.
780 SUPREME COURT P.EFORTS [I 9f.2] SUPP.
The convicted person moved this Court and
obtained special leave to appeal. It will be noticed
that the constitutionality of tho provisions of the
aections under which tho appellant was convicted
had not bet•n oonvassed before the High Court. But
in the petition for Rpecial leav11, to this Court, the
ground was ta.ken that ss. 124A and 505 of the
Indian Penal Code "are inconsistent with Art .. 19(1)
(a) of tho Constitution". The appeal was heard in
this Court, in tho first instance, by a Division Bench
on ~fay 5, l!l59. The Banch, finding that the learned coun8el for the appellant had raised the consti·
tutional issue as to the validity of S&. I 24A and 505
of the Indian Penal Code, directed that the appeal
be plaeed for hearing by a Constitution Bench. The
case was then placed before a Constitution Bench,
on November 4, 1960, when that Bench directed
notice to issue to the Attorney General of India
under r. I, 0.41 of the Supreme Court Rules. Tho
matter was once again placed before a constitution
Bench on February 9, 1961, when it waii adjourned
for two months in order to enable the State Govern·
ments concerned with this appeal, as also with the
connected Criminal Appeals Nos. 124-126 of 1958
(in which the Government of Uttar Pradesh is the
appellant) to make up their minds in respect of the
prosecutions, as also in view of the report that the
Law Commission was considering the quf.'stion of
amending the law of sedition in view of the new
set-up. As tho States concerned have instructed
their counsel to press the appeals, the matter has
finally come before us.
In Criminal Appeals 124·126 of 1958, the
State of Uttar Pradesh is the appellant, though the
reapondents are diff'erent. In Criminal Appeal 124
of 1958, the accused person is one Mohd. Ishaq Ilmi.
He was prosecuted for having delivered a speech at
Aligarh as Chairman of the Reception Committee
of the All India Muslim Convention on October 30,
•
2$.C.R.
SUPREME COudT REPORTS
781
-\95:l. His speech on that occasion, was thought to ·be
seditious. Aft ir the necessary sanction, the l\fagistrate held an enquiry, and finding a prima fucie case
m "'de out against the accused, commi_tted him to the
Court of Session. The learned St'ssions Ju Ige, by
his Judgment dated January R, 1955, acq11itted him
of the charge under s. 153A, but convicted him of
the other charge under s. 124A, of the Indian Penal
CJde, and sentenced him to rig.>rous imprisonment
for one year. The c0nvicted purson preferred an
appeal to the High Court.. In the Hiuh Court the
constitutionality of s. l:HA of the Indian Penal
Code was challenged.
In Criminal Appeal No. 125 of 1958, the facts
are that on M'l.y 29, l9:i4, a meeting of the Bolshovik Party was organised in village Hanumang~nj,
in the District of Basti, in Uttar Pradesh. On that
occasion, the respondent Hama Nand was found to
have delivered an objectionable speech in so far as
he advoc&ted the use of violence for overthrowing
the Government est,iblished by law.
After the
sanction of the Governnient to the prosecution had
been obtained, the learned Magistrate held an
enquiry
and
ultimately
committed
him
to
take his trial
b9fore
the Court of Sessinn•.
In dne course, the learned Sessions ,Judge c 11wi.-ted
the accused person under s. 124A of t ht· Indian
Penal Code and sentenced him to ri'.~orc111• imprisonment for three years.
He hel1l tl1.it the accused
person had committed the 1 r.·~nce by inciting the
audience to an open violent rebellion against the
Government established by law, b.v the use of arms.
Against the aforesaid order of conviction and
sentence, .the ac0used person preferred an appeal
to the High Court of Allahabad.
In Criminal Appeal I ~6 of 1958, the respondent is one Pa.rasnath Tripathi.
Hfl is alleged to
have delivered a speech in
villag~ l\fansapur,
P.S. Akbarpur, in the district of Faizabad, on
September 26, 1955, in which he is said to have
Kedar Natll Sintli
••
si.11 of Bi,,.,
Sinh• C. J,
J ...
X• N-11 BU.,h
v.
si.i. •I /liMI
Sio"4 C. J.
782
SUPREME OOURT REPOR'l'!I! [19Cl2] SUPP.
exhortrd the audience to organise a volunteer army
and re,ist the Governmeut and its servants by
violent means. He is also sa.id to have excited
the 1mdicnoe with intent
to create
feelings
of hatred and enmity against the Government.
When he was placed on trial for an offence under
s. 124A of the Indian Penal Code, the accused
person applied for a writ of Habeas r'orpus in the
High Court of Judicature at Allahabad on the
ground that his de!l'ntion was illegal inasmuch a.s
the provisions s. 124A of tho India11 Penal Crde
were void as being in contranntion of his fundamental 1 ights of free specl'h aud <'Xpression under
Art.
I !li l )(a) of the C1rnstitution.
This matter,
along with the appeals which havt· givPn rise to
appeals Xos. 1:!4 and 125, as afon•said, were ultimately placc>d before a Full Bench, consisting of
Dtsai, Gurtu and Beg, JJ. The learned judges,
iii separate but concurring judgmcnls, tut k the view
that s. I 24A of the Iurlian Penal Code was ultra
tires Art. Hl(l)(a) of the Constitution. In that view
of the matltr, they acquittocl the accussed persons,
eonvictL>d as afor~sa.id in the two appea.11 Xos. 124
and
I 2:"i, and granted the writ petition of the
accu8ed in Criminal Appeal No. J 20. In a.II these
cases the High
Court gr.rnted the
necessary
ccrtifi<":ctc
that the ease
involved important
questions of law relating tn the
int~rpretation
of the Constitution. That is how these appeals aro
before us on a ccrtificatt' uf fitne.>8 granted by the
High Court.
f'hri C.B. Ag.1rwala, wh'> apJ><';IJ'f'<l on behalf
of the ~tate of Vttar l'rnd1·sh in ,;11pport uf tho
nppeiil,; a!!'ainst th'• ordnr,; of •~··•1'1ittal passed by
the Hic:h Court. 1·oi1tw1d··cl th11t th,1 j•ulgmont of
the High Court (n"w l'"J'"ltPd in fl,,,,, .\'a!lrfon \'.
Sltlt~ ( ') ) in whi..J1 it. ll'ils laid du\\'n hy the Full
n .. neh thats. 12-IA ,,,. tlw Indian Pt•nal Coile
WI~~
ultm i·ires Art. I !I( I)( a) of the
(~on~t it.ut.ion and,
(I) J.L.R. (19;8) 2 All. Bi.
•
;.
28.C.R.
SUPREME COURT REPORTS
783
therefore, void for the reason that it was not in the
interest of public order and that the rPstrictions
imposed thereby were not reasonable restrictions on
the freedom
of speech and expression, was
erroneous. He further contended that the section
impugned came within the saving ol. (2) of
Art. 19,
and
that
the
reasons
given
by
the High Court to the contrary were erroneous.
He relied upon the observations of the Federal
Court in Niharendu Dutt Majumdar v. The King
Emperor ('). He also relied on
~tephen's Commentaries on the La.wa of Enghnd, Volume IV,
21st Edition, page 141, and the Statement of the
Law in Halsbury's Laws of. England, 3rd Edition,
volume 10, page 569, and the cases referred to in
those volumes. Mr. Gopal Behari, appearing on
behalf of the respondents in the Allahabad cases has
entirely relied upon the full Bench decision of the
Allahabad High Court in his favour.
Shri Sharma
appearing on behalf of the appdlant in the appeal
from the Patna High Court has similarly relied
upon the decision aforesaid of the Allahabad
High Court.
Before dealing with the contentions raised
on behalf of the parties, it is convenient to set out
the history of the law, the amendments it has
undergone and t.he interpretations placed upon
the provisions of s. I 24A by the Courts in India,
and by their Lordships of the judicial Committee
of the Privy Council. The section corrPsponding
to s. 124A was originally s. 113 of Macauhy's
Draft Penal Code of 1837-39, but the section was
omitted from the Indian Penal Code as it was enacted in 1860. The reason for the omission from the
Code as enacted is not clear, but perhaps the legislative body did not foe! sure above its authority
to enact such a provision in the Code.
B~ that
as it may, s. 1:!4A was not placed on the Statute
Book until 1870, by Act Xx:vrr of 1870.
There
(I) [1943) F.C.R. 38.
lHB
Kdar Nalh Slo,A
••
St"" of Bilw
BW.oC.J.
19G2
K,dar J..."'ath Singh
v.
-
Stal1 ~f Riha;
'Sinha C. J.
i84 Sl!l REiliE COURT REPORTS [l!l62] SUPP.
was a considerable amount of discussion at the
time the amendment was introduced by Sir James,
Ktephen, but what he said while introducing the
·b1tl in the .legislature may not be relevant for our
present purposes.
The section as then enacted
ran as follo~s :'
'!]24A. Exciting DisaffectionWhoever by words, either spoken or
intend.0 d to be read, or by signs, or by visible
;cprC'Hentation,
or
otherwise,
exci~s, or
'n.tfem pts to excite, feelings of disaffection to
the
Government
established by law in
Britifh India, shall be punished with transportati<m for life or for a.ny term, to which
fine may· be added, or with imprisonment
for a term which may extend to three years,
to which fine may be added, or with fine.
Explanation-Such a disapprobation of
the measures of the Government as is compatible with a disposition to render obedience
to the lawful nuthority of the Government
and to support the lawful authority of the
Governmenb
again~t nn lawful attempts to
rn hN•rt or resist that 1!-Uthority, is not disaffection. Then·fore, the making of CO!lJments
on the. measures of the Government, with
the intention of PXciting only this species
of disapprobation, is not an offence within
this clauBr."
The firHt case in India that arose under the
srction ia wh\)-t is known as the Bangobasi case
(Quen,-!','111.j.i·e.('.S
v,
Jogendra Chiinrler
Bose ('))
which wns triQ-0 by a ,Jury before Ri!' Comer Pethernni, C .1. while charging the jury, the learned
Chief Jwiti•'e explained the Jaw to the jury in these
(p1·ms:
(1)-(1892) LL. R- 19 CaL 35,
t,
·1
-
2. S.C.R. SUPREME COURT REPORTS
785
"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 men'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 dii;position
in his bearers or readers, he will be guilty
of the offence of attempting to excite disaffection within the meaning of the section
though no disturbance is brought about by
his words or any feeling of disaffection, in
fact, produced by them. It is sufficient for
the purposes of the section that the words
used are calculated to excite feelings of ill·
will against the Government and to hold it
up to the hatred and contempt of the people,
and that they were used with the intention to
create such feeling."
The next case is the celebrated case of
Queen-Empress v. Balqanq_addhar Tilak (1)
which
came before the Bombay High Court. '.l'he ca8e
was tried by a jury bofore Strachey, J. The learned
judge, in the course of his charge to the jury, explain the law to them in these terms :
"The offence as defined by the first
clause is exciting or attempting to excite
feelings of disaffection to the Government.
What are
"feelings of disaffection" ? I
agree with Sir Comer Petheram in the Bangobasi ease tha.t disaffection means simply the
(1) (1898) l.L.R. 22 Born. 112.
1962
Kedar Neth Sin1,h
v.
State of Bt'liat
ifinh.a 0. J.
19'1
K1w Not.'/I. Sillgh
v,
SW.o/BN
sw..c.J.
786 SUPREME COURT REPOR~ [1962) SUPP.
absence of affection. It means hatred, enmitv
dislike, hostility, contempt and every from of
ill-will to the Government. "Disloyalty" is
perhaps the best general term, comprehending
every p088ible
form of bad feeling to the
Government. That is what the law means
by the disaffection whith a. man must not
excite or attempt to excite ; he must not
make or try to make others feel enmity of
any kind towards the Government.
You will
observe that the amount or intensity of the
disaffection is absolutely immaterial except
perhaps in dee.ling with the question Qf punishment: if a man excites or a.twmpts to excite
feelings of disaffection, great or small, he is
guilty under the section, In the uoxt place, it
is absolutely immaterial whether any feelings
of disaffection have been excited or not by the
publication in question. It is true that there
ia before you a. charge against each prisoner
that he has actually excited feelings of disaffection to the Government. If you are
satisfied that he has done so, you will, of
course, find him guilty. But if you should
hold that that charge is not made out, and
that no one is proved to have been excited to
entertain
feelings
of disaffection to the
Government by reading these articles, still
that alone would not justify you in acquitting the prisoners.
For each of them is
nharged not only with exoiting feelings of
disaffection,
but also with attempting to
excite such feelings. You will observe that tho
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
prisonere has tried to excite such feeling in
others, you must convict him even if there is
nothing to show that he sucooded. Again, it is
•
' '
2 S.C.R. SUPREME COURT HEPOHTS
787
important that you should fully rPalise anothn
point. The offence consists in exciting or
attempting to excite in others certain bad feeling 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 articlea, is absolutely immaterial. If the accused intended by
the articles to excite rebellion or disturbance,
his act would doubtless fall within section
124A, 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
under the section. I am aware that some distinguished persons have thought that there
can be no offence against the srntion unless
the aecused either counsels or suggests rebellion or forcible resistance to the Government.
In my O!Jinion, that view is absolutely opposed to the express words of the section itself,
which as plainly as possible makrs the £ xciting or attempting to excite certain feelings,
and not tile inducing or attempting to induce
to any course of action such as rebellion or
forcible resistance, the test of guilt.
I can
only account for such a view by attributing
it to a complete misreading of the explanation attached to the section, and to a misa,pplication of the explanation beyond its true
scope."
The long quotation has become necessary in view
of what followed later, namely, that this statement of the law by the learned judge came in
for a great deal of comment and judicial notice.
We have omitted the charge to the jury relating
;962
Kedu NaJh SingA
·v ..
Staie of Bil.or
Sinlw C. J.
1'6Z
/C.W N•tA Siofh
v.
Slo#•fBiW
SW. C. J,
788 SUPREME COURT REPORTS (11162) SUi>P
to the explanation to
s. 124A because
that
explanation has
now yielded place to three
separate explanations in view of judicial opinions
expre11Se<l later. The jury, by a majority of six
to three, found Shri Balgangadhar Tilak guilty.
Subsequently, he, 'on ccnviction, applied under
cl. 41 c,f the Letters .Patent for leave to appeal
to the Privy Council. The application was heard
by a Full
Bench consisting of Farran, C. J.,
Candy and Strachey, JJ. It was contended before
the High Court at the leave stage, inter alia, that
the sanotion givon by the Government was not
sufficient in law in that it had not set out tho
particulars of the offending articles, and, secondly,
that the judge misdirected the jury as to the meaning of the word "disaffection" insofar as he said
that it might be equivalent to "absence of affection". With regard to the second point, which is
only relevant point before us; tho Full Bench
expressed itself to the following effect :
"The other ground upon which
Mr.
Russell has asked as to certify that this is a
fit case to be sent to Her Majesty in Council,
is that there has been a misdirection, and
he based his argument on one major and two
minor grotmds. The major ground was that
the section oannot be 'laid to have been contravened unlcBB there is a direct incitement
to stir up disorder or rebellion. That appears
to us to be going muoh beyond the words of
the seotion, and we need not say more uvon
that ground. The first of the minor points
is that Mr. J ustiee Strachey in summing up the
case to the jury stated that disaffection meant
tho "absence of affection". But although if
that phrase had stood alone it might have
misled the jury, yet 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
2 S.C.R.
SUPREME COURT REPORTS
789
law as led down by Sir Comer Petheram,
in Calcutta in the Bangobashi case. There
the Chief Justice instead of using the words
"absence
of affection"
used the words
· "contrary to affection". If the words "con·
trary
to
affection"
had
been
used
instead of "absence of affection" in this
case there can ·be no doubt that the summ·
ing 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 11egation
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 remember·
ed 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
,T udicial Committee. Before their Lordships of
the Privy Council, Asquith, Q. C., assisted by
counsel of gn1at experience and eminence like
Mayne, W. C. Bonnerjee and others, contended
that there was a misdirection as to the meaning of
section 124A of the Penal Code in that the offence
had been defin"d in terms to wide to the effect that
"disidfeotion" meant simply "absence of affection"
and that it comprehended every possible form of
bad feeling to the Government. In this connection
reference was made to the observations of Petheram, C.J. in Qiteen-TiJmpres8 v . .!ogender Bose (1). It
was n.lso contended that the appellant'B comments
(I) (1892) I. L. R. 19. Cal.