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Vinod Dua vs Union Of India on 3 June, 2021

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Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

1
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.154 OF 2020

VINOD DUA …PETITIONER

VERSUS

UNION OF INDIA ORS. …RESPONDENTS

JUDGMENT

UDAY UMESH LALIT, J.

1. This petition under Article 32 of the Constitution of India prays for

following principal reliefs:-

“a. Quash FIR No.0053 dated 06.05.2020 registered at
Police Station Kumarsain, District Shimla, Himachal
Pradesh.

b. Direct that henceforth FIRs against persons belonging
to the media with at least 10 years standing be not
registered unless cleared by a committee to be
constituted by every State Government, the composition
of which should comprise of the Chief Justice of the
High Court or a Judge designated by him, the leader of
the Opposition and the Home Minister of the State.”
Signature Not Verified

Digitally signed by Dr.
Mukesh Nasa
Date: 2021.06.03
15:26:34 IST
Reason:

Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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2. FIR No.0053 dated 06.05.2020 was registered pursuant to

Complaint made by respondent No.3 herein to the following effect:-

“On 30th March, 2020, Mr. Vinod Dua, in his show namely
The Vinod Dua Show on YouTube, has made unfounded and
bizarre allegations (details of particular moments are
provided below) by stating following facts at 5 minutes and
9 seconds of the video, he has stated that Narendra Modi has
used deaths and terror attacks to garner votes. At 5 minutes
and 45 seconds of the video, he claims that the government
does not have enough testing facilities and has made false
statements about the availability of the Personal Protective
Kits (PPE) and has stated that there is no sufficient
information on those. Further, he also went on to state that
ventilators and sanitizer exports were stopped only on 24th
March 2020. A true copy of the video link is: https:/
/www.youtube.com/watch?vvijFD_tgvv8. That the said
allegations are false and the claims are bizarre and
unfounded. Mr. Vinod Dua has spread false and malicious
news by stating that the PM has garnered votes through acts
of terrorism. This directly amounts to inciting violence
amongst the citizens and will definitely disturb public
tranquillity. This is an act of instigating violence against the
government and the Prime Minister. He also creates panic
amongst the public and disturbs public peace by trying to
spread false information, such as, the government does not
have enough testing facilities which is absolutely false. The
government has sufficient facilities to curb the pandemic and
have been taking all the measures to control the pandemic.

By making such false statements, Mr. Vinod Dua spread fear
amongst the people. This video will only create a situation
of unrest amongst the public which will result in panic and
people not obeying the lockdown to come out and hoard
essentials which is absolutely unnecessary. Mr. Vinod Dua
has circulated these rumours with the intent to defeat the
Lockdown by creating an impression that there is a complete
failure of the institution and it will become hard to survive
this lockdown, if not acted upon immediately. It is
unfortunate that during such a pandemic, which is of such a
magnitude, instead of helping out the citizens and
encouraging them to stay at home, the show and the host,
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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Mr. Vinod Dua, is only interested in raising his show’s TRP
and making it successful. The rumours were spread with
intent to cause, or which is likely to cause, fear or alarm to
the public or to any section of the public, whereby any
person may be induced to commit an offence against the
state or against the public tranquillity. Since the matter
relates to Public health, considering the gravity and
seriousness of the matter, this dishonest and fraudulent act
of the Mr. Vinod Dua should be taken with utmost
seriousness. The aforesaid act of Mr. Vinod Dua is an
offence punishable under
Sections 124-A, 268, 501 and 505
of the Indian Penal Code, 1860 (
IPC). Unless strict action is
taken, it will result in unrest in public and go against public
tranquillity. Hence, you are requested to take strict
appropriate legal action against Mr. Vinod Dua and punish
him accordingly.”

3. The FIR dated 06.05.2020 thus pointedly referred to two segments

in the talk show uploaded on 30.03.2020 – one at 5 minutes 9 seconds and

the other at 5 minutes 45 seconds and generally dealt with the drift of the

assertions made by the petitioner in said talk show to submit that the actions

on part of the petitioner amounted to offences punishable under penal

provisions referred to in the FIR. The transcript of the relevant episode of

the talk show has been placed on record and the translation of the relevant

portions is :-

“At present I am talking about the ongoing corona virus and
whatever has happened in its context – how was our
preparedness, when we were alerted and despite which why
we were in slumber. When I refer to WE then I refer to the
government. I present a small analysis on which a few things
have been stated by P. Chidambaram in an article in the
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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Indian Express, some of this we have also seen and you
understand all of the rest very well. …..

Now, the national lockdown, desh bandhi, note bandhi, GST
are the three big events. Our work as media, we do not stoop,
we are not darbari, we are not from the government, our job
is not to denigrate, our job is not also to criticize, our job is
to do critical appraisal of government’s work. We do not
need anything from the government or anyone’s
complaisance. Media has to do this work but unfortunately
most of the media is towing the line of the government or
their stoogas. They look for support in everything to turn
everything into an event of the Pradhan Sewak and to tout
that as a big success. In the case of attacks on India on
Pathnakot and Pulwama the same were used as political
events to garner votes, surgical strikes were also used as gain
politically. The air strikes by India on Balakot were also
used as means of getting votes. To seek votes by turning
everything into an event has become the hallmark of this
government, this is our call of duty and our dharma to
present these before you, so we are saying these.

Further, our biggest failure has been that we do not have
enough facilities to carry out testing. Undoubtedly, ICMR
and Health Ministry maintain that corona in India is still in
2nd stage and has not reached in 3rd stage when community
transmission takes place. At the present juncture India needs
7 lakh PPE suits, 6 lakh N95 masks and 8 crore masks of
three ply. Till now we do not have any information how
many we have and how many will become available by
when. The ventilators needed in other countries and in India,
respiratory devices and sanitizers were being exported till 24
March instead of keeping these for use in our country.
Supply chains got disrupted due to blockage of roads and
now it is being heard that transportation of essential goods
has been allowed. It is not difficult to imagine that when the
supply chains have been closed, when the shops are closed,
some people had gone to the extent of fearing food riots
which have not happened in our country could happen.
Therefore the government is now taking steps which should
have been taken at least 15 days earlier. On 11 February,
ICMR had forewarned, later Rahul Gandhi did the same by
writing a letter on 12 February and again 13 February but the
government kept sleeping.

Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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Now, the migrant labour which is a huge issue, the people
who leave their distant villages to earn their livelihoods here,
who are the backbone of the cities, who help in running our
lives, our drivers, our daily wagers, construction workers,
tailors, all those who do small odd jobs and somehow send
money back home. There are certain states like Bihar which
also run on money order economy where it caused huge
disruption and who started returning home. When people
started returning from Mumbai on 10 March, that should
have been a big signal for the government about the effect
the complete lockdown in the whole country can bring about
but no lessons were learnt. Besides, police did not get any
instructions about how to handle this, the face of brutality
and inhumanity of the police was seen and now the face of
the police is also seen while distributing food and also their
face of shaming those not following the lockdown. These
steps could have been taken earlier also because using force
is not the only way of the police.

4. Certain factual developments that occurred after the registration of

the FIR were noted in the Order dated 14.06.2020 passed by this Court as

under:-

“A Notice for Appearance dated 11.06.2020 was issued by
the office of Station House Officer, Police Station
Kumarsain, District Shimla, Himachal Pradesh, under
Section 160 Cr.P.C. to the following effect:

“A Case FIR No.53/2020 Dated 06.05.2020 U/s
124A, 268, 501, 505
IPC has been registered in Police
Station Kumarsain, Distt. Shimla, HP on the
complaint of Sh. Ajay Shyam, Vill PO Kiara,
Tehsil Theog, Distt. Shimla HP against (You) Mr.
Vinod Dua Journalist, HW News Network. In above
said case your presence is required for interrogation.

Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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So you are therefore directed to join investigation at
Police Station Kumarsain on or before 13/06/2020 at
10 am sharp.”

A response to the above notice was sent by the petitioner on
12.06.2020 stating inter alia:

“I have received your notice dated 11.06.2020
seeking my physical presence for the interrogation of
FIR dated 06.05.2020, on 13.06.2020 before the
police station in Kumarsain, Himachal Pradesh.

I wish to bring to your notice as per Himachal Pradesh
covid guidelines dated 11.05.2020, any person
coming from the red zone is directed to be in
institutional quarantine for a period of 14 days. Since
I reside in New Delhi which is currently a red zone, I
would be forced to be in quarantine for a period of 14
days.

Further, I wish to bring to your kind notice that I am
66 plus years old. Therefore, as per MOH guidelines,
all citizens of 65 plus age are asked not to travel due
to health safety risks.

Further I suffer from Thalassemia minor with Iron
deficiency anaemia, pancytopenia (low red white
blood cell and low platelet count), chronic liver
disease with portal hypertension splenomegaly,
diabetes and hypothyroidism. I also have oesophageal
varices with a high risk of bleeding. Therefore doctors
have stated that stepping out of my house would be
life endangering. I am attaching my medical
certificate herewith.

Meanwhile, I would join the investigation through
email or any other online mechanism.”

While issuing notice in the petition, the Order dated 14.06.2020

recorded further: –

“Mr. Vikas Singh, learned Senior Counsel appearing for the
petitioner submitted that the Himachal Pradesh Police had
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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contacted the petitioner day before yesterday in connection
with the investigation in the crime referred to above.

Considering the circumstances on record, we deem it
appropriate to direct as under:

(a) Pending further orders, the petitioner shall not be arrested
in connection with the present crime;

(b) However, the petitioner in terms of the offer made by him
in his communication dated 12.06.2020, shall extend full
cooperation through Video Conferencing or Online mode;
and

(c) The Himachal Pradesh Police shall be entitled to carry on
the investigation including interrogation of the petitioner at
his residence after giving him prior notice of 24 hours and
complying with the Social Distancing norms prescribed
during Covid-19 Pandemic.

The affidavit in reply filed on behalf of the State shall
indicate the steps taken during investigation and a complete
Status Report shall be filed before the next date of hearing.
The concerned Investigating Officer shall remain personally
present in case the open Court hearing is resumed by this
Court or shall be available in case the proceedings are taken
up through Video Conferencing mode.”

5. Some of the grounds raised in the instant writ petition relating to

the prayers quoted hereinabove are:

“A. Because the contents in the video is pure and
simple critical analysis by the Petitioner of the functioning
of the Government and cannot by any stretch of
imagination be said to be offences under
Sections 124-A,
268, 501, 505 of IPC.

B. Because the decisive ingredient for establishing
the offence of sedition under
Section 124-A IPC is the
doing of certain acts which would bring to the Government
established by law in India hatred or contempt etc. which
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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would incite violence or create public disorder. In the
present case, there is not even a suggestion that the
Petitioner did anything against the Government of India or
any other Government of the State.

R. Because seeking quashing of the FIR dated
06.05.2020 is part prayer, the petitioner through this
petition is also seeking guidelines from this Hon’ble Court
in respect of lodging of FIRs against persons belonging to
the media of a particular standing as done in the case of
medical professionals vide judgment in
Jacob Mathew v.
State of Punjab (2005) 6 SCC 1 para 51, 52 affirmed by the
Constitution Bench Judgment in
Lalita Kumari v.
Government of Uttar Pradesh and others (2014) 2 SCC 1
para 115.”

6. The affidavit in reply filed on behalf of the State referred to

Sections 52 and 54 of the DM Act1 as under:

“At this juncture, it may be noticed that the entire world is
passing through an unprecedented international crises in the
form of a pandemic. India also is no exception. In case of a
pandemic, any false news necessarily have a tendency of
creating panic and, therefore, the
Disaster Management Act
provides for certain offences and penalties.
Sections 52 and
54 of the Disaster Management Act read as under:-

Section 52. Punishment for false claim.-

Whoever knowingly makes a claim which he
knows or has reason to believe to be false for
obtaining any relief, assistance, repair,
reconstruction or other benefits consequent to disaster
from any officer of the Central Government, the State
Government, the National Authority, the State
Authority or the District Authority, shall, on
conviction be punishable with imprisonment for a
term which may extend to two years, and also with
fine.

1

The Disaster Management Act, 2005
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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Section 54. Punishment for false warning.-

Whoever makes or circulates a false alarm or warning
as to disaster or its severity or magnitude, leading to
panic, shall on conviction, be punishable with
imprisonment which may extend to one year or with
fine.”

Thereafter, the affidavit indicated following steps taken by the

Investigating machinery:

“Having found that complaint disclosed cognizable offence,
the FIR was registered. In respectful submission of the
respondent, since a FIR discloses prima facie commission of
cognizance offence, no interference may be warranted.

That after registration of FIR, on 07.05.2020 the
complainant was called in the Police Station but he did not
appear as he was out of station. On 08.05.2020 complainant
joined the investigation in the Police Station and produced
one DVD containing telecast dated 30.03.2020 as referred in
the FIR which was taken into possession by the Investigating
Officer through seizure memo and statement of Sh. Ajay
Shyam was recorded u/s 161 Cr.P.C.

That on 11.05.2020, Investigating Officer visited Cyber
Crime Police Station from where Notice u/sec 91
Cr.P.C.
was sent to Google and YouTube through e-mail for
obtaining information in respect to URL of the channel and
URL of the post.”

7. The original complainant (Respondent No.3) stated in his response

as under:

“It is submitted that, on 30.03.2020, the petitioner in his
show, ‘The Vinod Dua Show’ telecasted on You Tube in
Episode No.255 made false allegations regarding
preparedness for the pandemic Covid-19 which were clearly
in violation of
Sections 124-A, 268, 501 and 505 IPC. The
entire content/transcript of the episode has been reproduced
in the Writ Petition at pages 45 onwards at Annexure A-2.

Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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It is submitted that, on 21.04.2020, when the respondent was
surfing on the internet on his mobile that, he had the occasion
to watch the said alleged video of the petitioner. He strongly
felt that the contents of the video had a tendency to create
disturbance of public peace against the government
established by law.

……

It is submitted that, in the present case, prima facie the
offences u/s 124-A, 268, 501 and 505 of the
IPC are clearly
made out and more serious offences will emerge once the
material supplied by the answering respondent is
investigated, and therefore, there is no ground for quashing
the present FIR. If the statements in the video are seen in its
entirety, then the mala fide intention of the petitioner is
apparent and all is being said to incite people and create
disaffection and hatred in the minds of the people against the
Government of India and that too during these difficult times
of pandemic Covid-19.”

Respondent No.3 then referred to the other episodes of talk show of

the petitioner uploaded on 02.03.2020, 31.03.2020, 01.04.2020 and

01.06.2020 to emphasize the alleged tendency on part of the petitioner of

making statements which were devoid of truth.

8. The Status Report placed for perusal of this Court in pursuance of

the order dated 14.06.2020, inter alia, gave details about HW News owned

by Theo Connect Private Ltd.

Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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9. Appearing for the petitioner, Mr. Vikas Singh, learned Senior

counsel submitted: –

A) The statements in the FIR that, “Hon’ble Prime Minister used

threats and terror acts to garner votes”; and “Prime Minister garnered votes

through act of terrorism” were factually incorrect. No such assertions were

made by the petitioner.

B) The basic allegations in the FIR were required to be seen in the light

of the law laid down by this Court in Kedar Nath Singh vs. State of Bihar2

and subsequent cases. Viewed thus, the provisions of Section 124A of the

IPC3 would not get attracted at all.

C) As a journalist, the petitioner was entitled to and did nothing more

than critical analysis of the functioning of the Government.

D) The ingredients constituting offences under Sections 501 and 505

of the IPC3 were also not established.

2

(1962) Supp. 2 SCR 769
3

The Indian Penal Code, 1860
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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E) Consequently, the criminal proceedings initiated against the

petitioner being abuse of the process and being violative of the fundamental

rights guaranteed under the Constitution of India, the same be quashed.

10. In support of the second prayer made in the petition, Mr. Singh

submitted: –

In Jacob Mathew v. State of Punjab and Another4, this Court

issued certain guidelines with regard to prosecution of Medical

Professionals accused of rashness or negligence while discharging their

professional duties; which decision was not only affirmed by the

Constitution Bench of this Court in Lalita Kumari v. Government of Uttar

Pradesh and Others5 but this Court went on to explain that a preliminary

inquiry could validly be insisted upon in certain categories of cases. The

case of journalists as a category be considered on similar lines, so that the

journalists can, without any hindrance or fear of unwarranted prosecution

fulfil their duties. The protection suggested in the second prayer would

afford and ensure protection against such unwarranted prosecutions.

11. Mr. Tushar Mehta, learned Solicitor General of India appeared for

State of Himachal Pradesh and submitted: –

4

(2005) 6 SCC 1
5
(2014) 2 SCC 1
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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A) The instant petition under Article 32 of the Constitution of India,

seeking quashing of the FIR may not be entertained and the petitioner be

relegated to remedies available under the Code6.

B) At the present stage, the allegations made in the FIR were required

to be presumed to be true and the matter be allowed to be investigated into.

C) The attempts on part of the petitioner were to spread

misinformation or incorrect information and cause panic in the perception

of the general public; for example, the statement that some people feared

that there could be food riots post lockdown was without any basis and had

clear potential of spreading panic. Such action would be covered and be

punishable under Sections 52 and 54 of the DM Act1.

D) Whether such statements were deliberate or unintended and

innocent assertions, would be a matter for investigation and as such no case

was made out for interference at the present stage.

E) The episode in question was uploaded on 30.03.2020 and migrant

workers in many metropolitan cities and towns had started walking towards

6
The Code of Criminal Procedure, 1973
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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their hometowns seriously jeopardising their own health and safety and that

of the society in general.

12. In response to the second prayer, it was submitted by the Solicitor

General: –

The direction as prayed for, if granted would result in overstepping

the field and area reserved for the Legislature. Any preliminary inquiry as

suggested by the petitioner, would be clearly opposed to law and not

sanctioned or permitted by law.

13. Mr. S.V. Raju, learned Additional Solicitor General who appeared

for Union of India, submitted: –

A) The matter would additionally come under Section 188 read with

Section 511 of the IPC3 as the statements made by the petitioner were in the

nature of incitement to disobey the orders passed by the concerned

authorities pursuant to lockdown including the order dated 31.03.20207

passed by this Court.

B) The bar under Section 195 of the Code with respect to cases falling

under Section 188 of the IPC3 would be relatable to the stage of cognizance

7
Writ Petition (C) No.468 of 2020 (
Alakh Alok Srivastava v. Union of India)
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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by Court and not to anterior stages and as such the matter be allowed to be

investigated into.

C) Norms of Journalistic Conduct framed by the Press Council of

India (2010 Edition) obliged the petitioner to check the facts and data

thoroughly from authentic sources and only thereafter he could make any

publication relating to the pandemic in a manner which was bereft of

sensationalization or exaggeration. The conduct of the petitioner was

completely wanting in this respect.

Paragraph 39 of said Norms, on which reliance was placed, reads:-

“39. Reporting on Natural Calamities

(i) Facts and data relating to spread of epidemics or natural
calamities shall be checked up thoroughly from authentic
sources and then published with due restraint in a manner
bereft of sensationalism, exaggeration, surmises or
unverified facts.

(ii) Natural or manmade hazards become disasters through
acts of commission and omission of the society. Therefore,
the disastrous impact can be minimized by preventive action
taken by all the stakeholders including the media.

(iii) Media should give wide publicity to the do’s and don’ts
and the potential benefits of disaster mitigation so that the
society follows them before, during and after the occurrence
of the disasters. People should be detailed on standard
guidelines. The issues of children and women which are the
most vulnerable groups during and after disaster should be
handled carefully by the media.

(iv) It is necessary to have complete cooperation between
the media and all governmental and non-governmental
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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agencies. The extent of the coordination and cooperation
between them determines the nature, the degree and the scale
of the preparedness to prevent or meet the disasters.”

14. Mr. Mahesh Jethamalani and Mr. Vinay Navre, learned Senior

Advocates for respondent No.3 reiterated the submissions on behalf of the

State and the Union and submitted that the severity and magnitude of the

pandemic called for strict adherence to the journalistic standards and

observance of restraint; that it was the fake and inaccurate reporting that

triggered the migration of workers; that the petitioner definitely intended to

disrupt the public order and that his intention was apparent from statements

that there could be food shortage resulting in food riots. In the written

submissions filed by respondent No.3, the Order dated 24.03.2020 and

Guidelines dated 28.03.2020 were highlighted and relied upon to submit

that by spreading false information regarding shortage of food, medical and

other essential services, the petitioner had contravened the Order dated

24.03.2020 and Guidelines dated 28.03.2020 and thereby committed

offences punishable under Sections 188, 153, 124A and 503(b) of the IPC3.

15. In rejoinder, Mr. Singh repelled the arguments advanced by the

respondents and the essence of his contentions as found in the written

submissions was: –

Writ Petition (Criminal) No.154 of 2020
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A) The video of the telecast if watched in its entirety would show that

the intent of the petitioner was to reaffirm the highest standard of journalism

and independence of the media. The petitioner did his duty to bring forth

the dispassionate and critical appraisal of the Government. His actions were

fully covered by Explanations 2 and 3 of Section 124A, IPC3 and exception

to Section 505 IPC3 and were within his Right of Free Speech and

Expression guaranteed under Article 19 (1)(a) of the Constitution of India.

B) The complainant along with the State brought down their case from

Section 124-A and Section 505 to Section 188 IPC3 in their attempt to show

that some cognizable offence was committed by the petitioner. The

allegation that the petitioner disobeyed the order dated 31.03.20207 passed

by this Court was rather absurd as the telecast was issued prior to the

directions of this Court.

C) The offences under the DM Act1 and Section 188 of the IPC3 were

not made out and, in any case, in the absence of a complaint in terms of

Section 60 of the DM Act1 and Section 195 of the Code, the submissions

made by the respondents called for rejection.

D) Further, the order dated 31.03.20207 gave liberty to the media to

have a free discussion about the pandemic; and that there was no unverified
Writ Petition (Criminal) No.154 of 2020
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news nor was there any disobedience by the Petitioner. The information in

the telecast was based on the information available in the public domain.

The interview of former Chief Statistician, Mr. Pronab Sen reported on

28.3.2020 and the notification dated 19.3.2020 and 24.3.2020 prohibiting

export of surgical masks, ventilators and sanitizers were also placed on

record.

In support of the contention that the petitioner had been a journalist

of some standing, following awards / recognitions received by the petitioner

were highlighted in the written submissions: –

“i. Padma Shri for Excellence in Journalism by the Hon’ble
President of India.

ii. The B.D. Goenka award for excellence in journalism,
instituted by Late Shri Ram Nath Goenka and decided by an
eminent jury comprising Justice Sujata Manohar, Justice
Bakhtawar Lentin and Jurist Nani Palkhiwala.

iii. Haldighati Award for excellence in journalism by the
Maharana Mewar Foundation.

iv. The RedInk Life Time Achievement Award by the
Mumbai Press Club.

v. Conferred with D.Litt. (Honoris Causa) by ITM
University, Gwalior.”

Finally, in support of the second prayer, the written submissions
stated: –

“There would be similarity between the case of Jacob
Mathews (2005) 6 SCC 1 and the present case as a large
number of TV journalists had been prosecuted in the recent
past. More than 56 FIR were registered against TV
journalists. Explanations 2 and 3 under
Section 124-A IPC
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

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would clearly exempt media persons from the commission
of the said offence and also the Exception under
Section 505
IPC would exempt media persons acting in good faith, from
the offence under said Section.”

16. In the written submissions filed on behalf of respondent No.3, the

relevant text of communications dated 24.03.2020 and 28.03.2020 was set

out as under: –

“f. On 24.03.2020, the Ministry of Home Affairs issued a
public order proclaiming that in view of the orders that had
been issued under the
Disaster Management Act, 2005
(lockdown measures) which read as under:

“1. In the wake of the orders that have been issued under
the
Disaster Management Act, 2005, there are possibilities
of rumour mongering, including those relating to shortage
of food and other essential services and commodities.

2. In this context, it is imperative that all State Governments
and Union Territory Administrations take necessary steps
to suitably publicise through all available means that food,
medical and civil supplies, and other essential services will
be maintained and there are adequate supplies available in
the country.

3. It is also requested that provisions of the Guidelines
issued in this regard, on the measures to be taken for
containment of COVID-19 epidemic in the country, as
annexure to MHA Order No.40-3/2020-D dated 24.03.2020
may be suitably disseminated amongst the public. All
measures may be taken to allay apprehensions and maintain
peace and tranquillity.”

g. On 26.03.2020 the PM had announced Pradhan Mantri
Garib Kalyan Anna Yojna under which 5 Kg of Rice or
wheat (according to regional dietary preferences) per person
and 1 kg of dal would be provided to each family holding a
ration card. This successful scheme covers 80 crore people
and has now been extended till November 2020. It is
recognised inter alia by the WHO as the largest food security
programme in the world.

h. Two days before impugned telecast by the Petitioner, the
MHA issued Consolidated Guidelines on 28.03.2020. As per
guidelines:

Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

20

“2. Offices of the State/Union Territory Governments, their
Autonomous Bodies, Corporations, etc. shall remain
closed.

Exceptions:

h. Agencies engaged in procurement of agriculture
products, including MSP operations.

i. ‘Mandis’ operated by the Agriculture Produce Market
Committee or as notified by the State Government.

4. Commercial and private establishments shall be closed
down.

Exceptions:

a. Shops, including ration shops (under PDS), dealing with
food, groceries, fruits and vegetables, dairy and milk
booths, meat and fish, animal fodder, fertilizers, seeds and
pesticides. However, district authorities may encourage and
facilitate home delivery to minimize the movement of
individuals outside their homes.

6. All transport services – air, rail, roadways – will remain
suspended.

Exceptions:

a. Transportation for essential good only.

…. ….. …..

e. Cross land border movement of essential goods including
petroleum products and LPG, food products, medical
supplies.

f. Intra and inter-state movement of harvesting and sowing
related machines like combined harvester and other
agriculture/horticulture implements.”

i. The orders of 24.03.2020 as also the consolidated
guidelines of 28.03.2020 are both orders duly promulgated
by public servants and disobedience to them by any person
renders that person liable to punishment u/s 188
IPC. In
Alakh Alok Srivastava vs. Union of India, this Hon’ble
Court, in its order dated 31.03.2020 (Coram: Hon’ble Chief
Justice and Hon’ble Justice Nageswara Rao) held as under:

“Disobedience to an order promulgated by a public servant
would result in punishment under
Section 188 of the Indian
Penal Code. An advisory which is in the nature of an order
made by the public authority attracts
Section 188 of the
Indian Penal Code.”
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

21

In spreading manifestly false information and rumour
mongering regarding shortages in the country of food,
medical and other essential services, the Petitioner has
contravened the said orders of 24.03.2020 and 28.03.2020.”

It was further stated:-

“Neither in the petition nor in his written submission has the
petitioner denied that he had knowledge of the advisory of
24.3.2020 and the consolidated guidelines issued by the
MHA on 28.3.2020 nor of the Pradhan Mantri Garib Kalyan
Anna Yojna announced on 26.3.2020. The petitioner
telecast on 30.3.2020, as well as at least three subsequent
telecasts from April to June, 2020 dealt with the prevailing
COVID situation and the Governments’ response to the
developing pandemic. While dealing with so sensitive
subject on more than one occasion, it was incumbent upon
the petitioner as a responsible journalist and by virtue of the
Press Council Norms to keep himself abreast with
Government orders, guidelines pertaining to the pandemic.
Indeed, his telecast and written submission indicate that he
had express knowledge of some Government notifications,
issued prior to the telecast of 30.3.2020.”

17. At the outset, we must consider whether the instant challenge raised

through a petition under Article 32 of the Constitution and the prayers made

in the petition can be entertained and considered specially when the

investigation into the alleged crime has not yet resulted in a report under

Section 173 of the Code.

18. It is the contention of the respondents that the petitioner be

relegated to the remedies under the Code rather than entertain the instant

petition under Article 32 of the Constitution. Since the first prayer in the

petition seeks quashing of the FIR, reliance is placed on the decision of this
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

22

Court in Arnab Ranjan Goswami vs. Union of India and Others8 in which

the relief was granted against multiple FIRs arising from the same

television show and pending at places other than Mumbai but this Court

refused to exercise jurisdiction under Article 32 of the Constitution for the

purpose of quashing the basic FIR registered at Mumbai. The relevant

discussion in that behalf was: –

“39. A litany of our decisions — to refer to them individually
would be a parade of the familiar — has firmly established
that any reasonable restriction on fundamental rights must
comport with the proportionality standard, of which one
component is that the measure adopted must be the least
restrictive measure to effectively achieve the legitimate State
aim. Subjecting an individual to numerous proceedings
arising in different jurisdictions on the basis of the same
cause of action cannot be accepted as the least restrictive and
effective method of achieving the legitimate State aim in
prosecuting crime. The manner in which the petitioner has
been subjected to numerous FIRs in several States, besides
the Union Territories of Jammu and Kashmir on the basis of
identical allegations arising out of the same television show
would leave no manner of doubt that the intervention of this
Court is necessary to protect the rights of the petitioner as a
citizen and as a journalist to fair treatment (guaranteed by
Article 14) and the liberty to conduct an independent
portrayal of views. In such a situation to require the
petitioner to approach the respective High Courts having
jurisdiction for quashing would result into a multiplicity of
proceedings and unnecessary harassment to the petitioner,
who is a journalist.

40. The issue concerning the registration of numerous FIRs
and complaints covering different States is however, as we
will explain, distinct from the investigation which arises
from FIR No. 164 of 2020 at N.M. Joshi Marg Police Station
in Mumbai. The petitioner, in the exercise of his right under
Article 19(1)(a), is not immune from an investigation into
8
(2020) 14 SCC 12
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

23

the FIR which has been transferred from Police Station
Sadar, District Nagpur City to N.M. Joshi Marg Police
Station in Mumbai. This balance has to be drawn between
the exercise of a fundamental right under
Article 19(1)(a)
and the investigation for an offence under the
CrPC. All
other FIRs in respect of the same incident constitute a clear
abuse of process and must be quashed.

….. ….. …..

57. We hold that it would be inappropriate for the Court to
exercise its jurisdiction under
Article 32 of the Constitution
for the purpose of quashing FIR No. 164 of 2020 under
investigation at N.M. Joshi Marg Police Station in Mumbai.
In adopting this view, we are guided by the fact that the
checks and balances to ensure the protection of the
petitioner’s liberty are governed by the
CrPC. Despite the
liberty being granted to the petitioner on 24-4-20209, it is an
admitted position that the petitioner did not pursue available
remedies in the law, but sought instead to invoke the
jurisdiction of this Court. Whether the allegations contained
in the FIR do or do not make out any offence as alleged will
not be decided in pursuance of the jurisdiction of this Court
under
Article 32, to quash the FIR. The petitioner must be
relegated to the pursuit of the remedies available under the
CrPC, which we hereby do. The petitioner has an equally
efficacious remedy available before the High Court. We
should not be construed as holding that a petition under
Article 32 is not maintainable. But when the High Court has
the power under
Section 482, there is no reason to by-pass
the procedure under the
CrPC, we see no exceptional
grounds or reasons to entertain this petition under
Article 32.
There is a clear distinction between the maintainability of a
petition and whether it should be entertained. In a situation
like this, and for the reasons stated hereinabove, this Court
would not like to entertain the petition under
Article 32 for
the relief of quashing the FIR being investigated at N.M.
Joshi Police Station in Mumbai which can be considered by
the High Court. Therefore, we are of the opinion that the
petitioner must be relegated to avail of the remedies which
are available under the
CrPC before the competent court
including the High Court.” (Emphasis supplied)

9
Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 51
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

24

The further contention is that there are no exceptional grounds or

reasons for entertaining the petition under Article 32 of the Constitution nor

is there any reason to bypass the procedure under the Code.

19. Reliance is also placed on the decision of this Court in Amish

Devgan vs. Union of India and Others10 which in turn referred to the

decisions of this Court in State of H.P. vs. Pirthi Chand and Another11 and

State of UP vs. OP Sharma12 as well as the decision in Arnab Ranjan

Goswami8. In Amish Devgan10, this Court did not refuse to entertain the

petition at the threshold but proceeded to consider the issues on merits and

finally declined the prayer made by the petitioner for quashing of the FIRs.

The following observations are noteworthy: –

“118. We respectfully agree with the aforesaid ratio.

Ordinarily we would have relegated the petitioner and asked
him to approach the concerned High Court for appropriate
relief, albeit in the present case detailed arguments have been
addressed by both sides on maintainability and merits of the
FIRs in question and, therefore, been dealt with by us and
rejected at this stage. We do not, in view of this peculiar
circumstance, deem it appropriate to permit the petitioner to
open another round of litigation; therefore, we have
proceeded to answer the issues under consideration.”

(Emphasis supplied)

10
(2021) 1 SCC 1
11
(1996) 2 SCC 37
12
(1996) 7 SCC 705
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

25

At the same time, there is a line of cases in which even while

exercising jurisdiction under Article 32 of the Constitution of India, this

Court was pleased to quash the concerned FIRs; some such cases being: –

(i) Vijay Shekhar and Another vs. Union of India and Others13

(ii) Rini Johar and Another vs. State of Madhya Pradesh and

Others14

(iii) Monica Kumar and Another vs. State of Uttar Pradesh and

Others15

(iv) Priya Prakash Varrier and Others vs. State of Telangana

and Another16

(v) Laxmibai Chandaragi B. and Another vs. State of

Karnataka and Others17

20. In Priya Prakash Varrier16, the nature of relief claimed was set out

in paragraph 1 of the decision whereafter this Court relied upon the dictum

of the Constitution Bench in Ramji Lal Modi vs. State of U.P.18 that for an

offence to come within the parameters of Section 295-A of the IPC3, the

13
(2004) 4 SCC 666
14
(2016) 11 SCC 703
15
(2017) 16 SCC 169
16
(2019) 12 SCC 432
17
(2021) 3 SCC 360
18
AIR (1957) SC 620
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

26

crime ought to have been committed with deliberate and malicious intention

of outraging the religious feelings of a class. Finding such element to be

completely absent, the relief prayed for was granted by this Court. The

relevant observations of this Court were:-

“1. In the instant writ petition preferred under Article 32 of
the Constitution of India, the petitioners, namely, the actor,
producer and director of the movie, have prayed for quashing
of FIR No. 34 of 2018, dated 14-2-2018, registered at
Falaknama Police Station, Hyderabad, Telangana. That
apart, a prayer has also been made that no FIR should be
entertained or no complaint under
Section 200 of the Code
of Criminal Procedure, 1973 should be dealt with because of
the picturisation of the song “Manikya Malaraya Poovi” by
Petitioner 1 in the film, namely, “Oru Adaar Love”.

7. It is worthy to note here that the constitutional validity
of the said provision was assailed before this Court and a
Constitution Bench in
Ramji Lal Modi v. State of U.P.17,
spoke thus: (AIR pp. 622-23, paras 8-9)

“8. It is pointed out that Section 295-A has been
included in Chapter XV,
Penal Code which deals with
offence 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 clause (2)
of
Article 19. A reference to Articles 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
Writ Petition (Criminal) No.154 of 2020
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27

cannot under any circumstances be said to have been
enacted in the interests of public order. Those two
articles in terms contemplate that restrictions may be
imposed on the rights guaranteed by them in the
interests of public order.

9. The 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 the 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 citizens’ freedom 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 may not. The law insofar as it covers
the first variety may be said to have been enacted in
the interests of public order within the meaning of
clause (2) of
Article 19, but insofar as it covers the
remaining variety will not fall within that clause. The
argument then concludes that so long as the
possibility of the law being applied for purposes not
sanctioned by the Constitution cannot be ruled out,
the entire law should be held to be unconstitutional
and void. We are unable, in view of the language used
in the impugned section, to accede to this argument.
In the first place clause (2) of
Article 19 protects a law
imposing reasonable restrictions on the exercise of
the right to freedom of speech and expression “in the
interests of public order”, which is much wider than
“for maintenance of” public order. If, therefore,
certain activities have a tendency to cause public
disorder, a law penalising such activities as an offence
cannot but be held to be a law imposing reasonable
restriction “in the interests of public order” although
in some cases those activities may not actually lead to
a breach of public order. In the next place
Section
295-A does not penalise any and every act of insult to
or attempt to insult the religion or the religious beliefs
of a class of citizens but it penalises only 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
Writ Petition (Criminal) No.154 of 2020
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28

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 activities, is well
within the protection of clause (2) of
Article 19 as
being a law imposing reasonable restrictions on the
exercise of the right to freedom of speech and
expression guaranteed by
Article 19(1)(a). Having
regard to the ingredients of the offence created by 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 restrictions both within and without
the limits of constitutionally permissible legislative
action affecting the fundamental right guaranteed by
Article 19(1)(a) and consequently the question of
severability does not arise and the decisions relied
upon by learned counsel for the petitioner have no
application to this case.”

12. In Mahendra Singh Dhoni v. Yerraguntla
Shyamsundar19, the justification for the registration of an
FIR under
Section 295-A had come up for consideration
before this Court. Appreciating the act done by the petitioner
therein, the Court quashed the FIR for an offence under
Section 295-A IPC.

13. If the ratio of the Constitution Bench is appropriately
appreciated, the said provision was saved with certain riders,
inasmuch as the larger Bench had observed that the language
employed in the section is not wide enough to cover
restrictions, both within and without the limits of
constitutionally permissible legislative action affecting the
fundamental right guaranteed by
Article 19(1)(a) of the
Constitution. The emphasis was laid on the aggravated form
of insult to religion when it is perpetrated with the deliberate
and malicious intention of outraging the religious feelings of
that class.

19

(2017) 7 SCC 760
Writ Petition (Criminal) No.154 of 2020
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29

….. ….. …..

15. In view of the aforesaid, we allow the writ petition and
quash FIR No. 34 of 2018. We also direct that no FIR under
Section 154 or any complaint under Section 200 of the Code
of Criminal Procedure should be entertained against the
petitioners because of the picturisation of the song.
However, there shall be no order as to costs.”

Notably, this decision rendered by a three Judge Bench of this Court

was in the context of right claimed under Article 19(1)(a) of the

Constitution, where the offence alleged was one under Section 295-A of the

IPC3. Apart from quashing the FIR, this Court also directed that no FIR or

complaint should be entertained against the petitioners because of the

picturisation of the concerned song.

21. In the celebrated case of Romesh Thappar v. The State of

Madras20, a Constitution Bench of this Court dealt with the preliminary

objection that instead of entertaining a petition under Article 32 of the

Constitution, the petitioner be asked to approach the High Court under

Article 226 of the Constitution, in following words:-

“ The Advocate-General of Madras appearing on behalf of
the respondents raised a preliminary objection, not indeed to
the jurisdiction of this Court to entertain the application
under
article 32, but to the petitioner resorting to this Court
directly for such relief in the first instance. He contended
that, as a matter of orderly procedure, the petitioner should
first resort to the High Court at Madras which under

20
1950 SCR 594
Writ Petition (Criminal) No.154 of 2020
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30

article 226 of the Constitution has concurrent jurisdiction to
deal with the matter. He cited criminal revision petitions
under
section 435 of the Criminal Procedure Code,
applications for bail and applications for transfer under
section 24 of the civil Procedure Code as instances where,
concurrent jurisdiction having been given in certain matters
to the High Court and the Court of a lower grade, a rule of
practice has been established that a party should proceed first
to the latter Court for relief before resorting to the High
Court. He referred to Emperor v. Bisheswar Prasad Sinha21,
where such a rule of practice was enforced in a criminal
revision case, and called our attention also to certain
American decisions Urquhart v. Brown22 and Hooney v.
Kolohan23, as showing that the Supreme Court of the United
States ordinarily required that whatever judicial remedies
remained open to the applicant in Federal and State Courts
should be exhausted before the remedy in the Supreme Court

– be it habeas corpus or certiorari – would be allowed. We
are of opinion that neither the instances mentioned by the
learned Advocate-General nor the American decisions
referred to by him are really analogous to the remedy
afforded by
article 32 of the Indian Constitution. That article
does not merely confer power on this Court, as
article 226 does on the High Court, to issue certain writs for
the enforcement of the rights conferred by Part III or for any
other purpose, as part of its general jurisdiction. In that case
it would have been more appropriately placed among
articles 131 to 139 which define that jurisdiction.

Article 32 provides a “guaranteed” remedy for the
enforcement of those rights, and this remedial right is itself
made a fundamental right by being included in Part III. This
Court is thus constituted the protector and guarantor of
fundamental rights, and it cannot, consistently with the
responsibility so laid upon it, refuse to entertain applications
seeking protection against infringements of such rights. No
similar provision is to be found in the Constitution of the
United States and we do not consider that the American
decisions are in point.”

21
I.L.R. 56 All. 158
22
205 U.S. 179
23
294 U.S. 10
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

31

22. The aforestated dictum was followed by another Constitution

Bench of this Court in Daryao and others v. The State of U.P. and others24

as under:

“ There can be no doubt that the fundamental right
guaranteed by
Art. 32(1) is a very important safeguard for
the protection of the fundamental rights of the citizens, and
as a result of the said guarantee this Court has been entrusted
with the solemn task of upholding the fundamental rights of
the citizens of this country. The fundamental rights are
intended not only to protect individual’s rights but they are
based on high public policy. Liberty of the individual and
the protection of his fundamental rights are the very essence
of the democratic way of life adopted by the constitution,
and it is the privilege and the duty of this Court to uphold
those rights. This Court would naturally refuse to
circumscribe them or to curtail them except as provided by
the Constitution itself. It is because of this aspect of the
matter that in
Romesh Thappar v. The State of Madras20, in
the very first year after the Constitution came into force, this
Court rejected a preliminary objection raised against the
competence of a petition filed under
Art. 32 on the ground
that as a matter of orderly procedure the petitioner should
first have resorted to the High Court under
Art. 226, and
observed that “this Court in thus constituted the protector
and guarantor of the fundamental rights, and it cannot,
consistently with the responsibility so laid upon it, refuse to
entertain applications seeking protection against
infringements of such rights”.”

23. In Jagisha Arora vs. State of Uttar Pradesh and Another25, this

Court entertained a petition under Article 32 of the Constitution against an

order of remand passed by the jurisdictional magistrate despite the

24
(1962) 1 SCR 574
25
(2019) 6 SCC 619
Writ Petition (Criminal) No.154 of 2020
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32

objection that the order must be challenged in accordance with the

provisions of the Code. The discussion was:-

“2. The fundamental rights guaranteed under the
Constitution of India and in particular Articles 19 and 21 of
the Constitution of India are non-negotiable.

3. The learned Additional Solicitor General appearing on
behalf of the State has opposed this allegation on various
technical grounds including the ground that there is an order
of remand passed by the jurisdictional Magistrate. It is also
contended that the High Court should have first been
approached.

4. Citing the judgment of this Court in State of
Maharashtra v. Tasneem Rizwan Siddiquee26, the learned
Additional Solicitor General argued that the question of
whether a writ of habeas corpus could be maintained in
respect of a person who was in police custody pursuant to a
remand order passed by the jurisdictional Magistrate in
connection with the offence under investigation, had already
been settled by this Court. This application, is, therefore not
maintainable. It was argued that the order of remand ought
to be challenged in accordance with the provisions
of the
Criminal Procedure Code. It was also argued that this Court
does not ordinarily entertain writ petitions unless the High
Court has first been approached.

5. As a matter of self-imposed discipline and considering the
pressure of mounting cases on this Court, it has become the
practice of this Court to ordinarily direct that the High Court
first be approached even in cases of violation of fundamental
rights. However,
Article 32 which is itself a fundamental
right cannot be rendered nugatory in a glaring case of
deprivation of liberty as in the instant case, where the
jurisdictional Magistrate has passed an order of remand till
22-6-2019 which means that the petitioner’s husband
Prashant Kanojia would be in custody for about 13/14 days
for putting up posts/tweets on the social media.

26

(2018) 9 SCC 745 : (2019) 1 SCC (Cri) 386
Writ Petition (Criminal) No.154 of 2020
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33

6. We are not inclined to sit back on technical grounds. In
exercise of power under
Article 142 of the Constitution of
India this Court can mould the reliefs to do complete justice.

7. We direct that the petitioner’s husband be immediately
released on bail on conditions to the satisfaction of the
jurisdictional Chief Judicial Magistrate. It is made clear that
this order is not to be construed as an approval of the
posts/tweets in the social media. This order is passed in view
of the excessiveness of the action taken.”

24. Thus, the practice of directing that the High Court be approached

first even in cases of violation of fundamental rights, is more of a self-

imposed discipline by this Court; but in glaring cases of deprivation of

liberty, this Court has entertained petitions under Article 32 of the

Constitution. We may, at this stage, also notice the following observations

made in Union of India vs. Paul Manickam and Another27:-

“22. Another aspect which has been highlighted is that
many unscrupulous petitioners are approaching this Court
under
Article 32 of the Constitution challenging the order of
detention directly without first approaching the High Courts
concerned. It is appropriate that the High Court concerned
under whose jurisdiction the order of detention has been
passed by the State Government or Union Territory should
be approached first. In order to invoke the jurisdiction under
Article 32 of the Constitution to approach this Court directly,
it has to be shown by the petitioner as to why the High Court
has not been approached, could not be approached or it is
futile to approach the High Court. Unless satisfactory
reasons are indicated in this regard, filing of petition in such
matters directly under
Article 32 of the Constitution is to be
discouraged.”

27
(2003) 8 SCC 342
Writ Petition (Criminal) No.154 of 2020
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34

25. We have therefore considered the instant case in the light of the

principles emanating from all the aforementioned decisions.

Apart from the fact that the right claimed by the petitioner is one

under Article 19 (1) (a) of the Constitution which was in the forefront in

Romesh Thappar20, Priya Prakash Varrier16, Jagisha Arora25 and Amish

Devgan10 in our view, the second prayer made by the petitioner can

effectively be considered only in a writ petition. Going by the nature of the

second prayer, relegating the petitioner to file a petition under Article 226

of the Constitution, may not be appropriate. Rather, the issue must ideally

be settled by this Court. Consequently, we do not accept the preliminary

objection raised by the respondents and we proceed to deal with the merits

and consider the matter with respect to both the prayers.

26. After stating that in his Talk Show uploaded on 30.03.2020, the

petitioner had asserted that the Prime Minister used deaths and terror

attacks to garner votes and that the Prime Minister garnered votes through

acts of terrorism, the F.I.R. stated, “This directly amounts to inciting

violence amongst the citizens and will definitely disturb public tranquillity.

This is an act of instigating violence against the Government and the Prime

Minister.” It was also stated, “the petitioner creates panic amongst the
Writ Petition (Criminal) No.154 of 2020
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35

public and disturbs public peace by trying to spread false information, such

as… the Government does not have enough testing facilities which is

absolutely false.”

According to the F.I.R. “…by making such false statements,

Mr.Vinod Dua spread fear amongst the people. This video will only create

a situation of unrest amongst the public which will result in panic and

people not obeying the lockdown to come out and hoard essentials which

is absolutely unnecessary.…. The rumours were spread with intent to cause,

or which is likely to cause, fear or alarm to the public or to any section of

the public, whereby any person may be induced to commit an offence

against the State or against the public tranquillity.”

27. On facts, it has been established that the statements attributed to the

petitioner that the Prime Minister had used deaths and terror attacks to

garner votes or that the Prime Minister had garnered votes through acts of

terrorism, were not made in the Talk Show. The true translation of the

original episode in Hindi, has been placed on record. No such assertions

find place in the true translation nor were any objections raised that the

translated version was in any way incorrect. The petitioner did say that the

air strikes by India on Balakot and attacks on Pathankot and Pulwama were
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

36

used as political events to garner votes but no allegations were made against

the Prime Minister as was stated in the F.I.R.

It is true that some of the portions of the Talk Show do assert that

there were not enough testing facilities; that there was no information as to

the quantum of PPE kits/ suits, N95 masks, and masks of three ply that were

available in the country; that the respiratory devices and sanitizers were

being exported till 24th March (2020) instead of keeping them for use in the

country; that the supply claims got disrupted due to blockage of roads; and

that the migrant workers was a huge issue. It was also asserted that with

supply claims being closed, some people had feared food riots, which had

not happened in the country. These statements were subject matter of

considerable debate by the learned Counsel and the principal question is

whether these statements were merely in the nature of critical appraisal of

the performance of the Government or were designed to create unrest

amongst the public.

28. The scope of section 124(A) of the IPC3 was considered by a

Constitution Bench of this Court in Kedar Nath Singh v. State of Bihar2.
Writ Petition (Criminal) No.154 of 2020
Vinod Dua vs. Union of India Ors.

37

28.1 The conviction of Kedar Nath Singh under Sections 124A and

505(b) of the IPC3 was affirmed by the High Court; and the view taken by

the High Court was paraphrased as under:

“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 Sections
124-A and 505(b) of the Indian Penal Code had been made
out.”

28.2 This Court dealt with the decisions in Bangobashi case (Queen

Empress v. Jogendra Chunder Bose28) and Queen-Empress v.

Balgangaddhar Tilak29, as under:

“The first case in India that arose under the section is what
is known as the Bangobasi case (Queen-

28

Empress v. Jogendra Chunder Bose which was tried by a
jury before Sir Comer Petheram, C.J. While charging the
jury, the learned Chief Justice explained the law to the jury
in these terms:

“Disaffection means a feeling contrary to affection, in
other words, dislike or hatred. Disapprobation means
simply disapproval. It is quite possible to disapprove
of a man’s sentiments or action and yet to like him.

The meaning of the two words is so distinct that I feel
it hardly necessary to tell you that the contention of
Mr Jackson cannot be sustained. If a person uses
either spoken or written words calculated to create in
the minds of the persons to whom they are addressed
a disposition not to obey the lawful authority of the
Government, or to subvert or resist that authority, if
and when occasion should arise, and if he does so

28
(1892) I.L.R. 19 Cal. 35
29
(1898) I.L.R. 22 Bom. 112.

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38

with the intention of creating such a disposition in his
hearers 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. Balgangadhar Tilak29 which came before the
Bombay High Court. The case was tried by a jury before
Strachey, J. The learned Judge, in the course of his charge to
the jury, explained 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
case that disaffection means simply the absence of
affection. It means hatred, enmity, dislike, hostility,
contempt and every form of ill-will to the
Government. ‘Disloyalty’ is perhaps the best general
term, comprehending every possible form of bad
feeling to the Government. That is what the law
means by the disaffection which 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 dealing with the question of
punishment: if a man excites or attempts to excite
feelings of disaffection, great or small, he is guilty
under the section. In the next 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 is 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
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39

would not justify you in acquitting the prisoners. For
each of them is charged not only with exciting
feelings of disaffection, but also with attempting to
excite such feelings. You will observe that the section
places on absolutely the same footing the successful
exciting of feelings of disaffection and the
unsuccessful attempt to excite them, so that, if you
find that either of the prisoners has tried to excite such
feelings in others, you must convict him even if there
is nothing to show that he succeeded. Again, it is
important that you should fully realise another point.
The offence consists in exciting or attempting to
excite in others certain bad feelings towards the
Government. It is not the exciting or attempting to
excite mutiny or rebellion, or any sort of actual
disturbance, great or small. Whether any disturbance
or outbreak was caused by these articles, is absolutely
immaterial. If the accused intended by the articles to
excite rebellion or disturbance, his act would
doubtless fall within
Section 124-A, and would
probably fall within other sections
of the Penal Code.

But even if he neither excited nor intended to excite
any rebellion or outbreak or forcible resistance to the
authority of the Government, still if he tried to excite
feelings of enmity to the Government, that is
sufficient to make him guilty under the section. I am
aware that some distinguished persons have thought
that there can be no offence against the section unless
the accused either counsels or suggests rebellion or
forcible resistance to the Government. In my opinion,
that view is absolutely opposed to the express words
of the section itself, which as plainly as possible
makes the exciting or attempting to excite certain
feelings, and not the 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
misapplication of the explanation beyond its true
scope.”

28.3 This Court then considered the further proceedings taken up after

Balgangadhar Tilak was found guilty: –

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“……The Jury, by a majority of six to three, found Shri
Balgangadhar Tilak guilty. Subsequently, he, on conviction,
applied under clause 41 of 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 sanction given by the Government was not
sufficient in law in that it had not set out the 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 the only relevant point before us, the Full Bench
expressed itself to the following effect:

“The other ground upon which Mr Russell has asked
us 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 grounds. The major ground was that
the section cannot be said to have been contravened
unless there is a direct incitement to stir up disorder
or rebellion. That appears to us to be going much
beyond the words of the section, and we need not say
more upon that ground. The first of the minor points
is that Mr Justice Strachey in summing up the case to
the jury stated that disaffection meant the ‘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 law as laid down by Sir
Comer Petheram in Calcutta in the Bangaboshi case.
There the Chief Justice instead of using the words
absence of affection used the words ‘contrary to
affection’. If the words ‘contrary to affection’ had
been used instead of ‘absence of affection’ in this case
there can be no doubt that the summing up would
have been absolutely correct in this particular. But
taken in connection with the context it is clear that by
the words ‘absence of affection’ the learned Judge did
not mean the negation of affection, but some active
sentiment on the other side. Therefore on that point
we consider that we cannot certify that this is a fit case
for appeal.

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In this connection it must be remembered that it is not
alleged that there has been a miscarriage of justice.”

After making those observations, the Full Bench refused the
application for leave. The case was then taken to Her
Majesty in Council, by way of application for special leave
to appeal to the Judicial Committee. Before Their Lordships
of the Privy Council, Asquith, Q.C., assisted by counsel of
great experience and eminence like Mayne, W.C. Bannerjee
and others, contended that there was a misdirection as to the
meaning of
Section 124-A of the Penal Code in that the
offence had been defined in terms too wide to the effect that
“disaffection” 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 Queen-

Empress v. Jogendra Chander Bose28. It was also contended
that the appellant’s comments had not exceeded what in
England would be considered within the functions of a
public journalist, and that the misdirection complained of
was of the greatest importance not merely to the affected
person but to the whole of the Indian press and also to all
Her Majesty’s subjects; and that it injuriously affected the
liberty of the press and the right to free speech in public
meetings. But in spite of the strong appeal made on behalf
of the petitioner for special leave, the Lord Chancellor,
delivering the opinion of the Judicial Committee, while
dismissing the application, observed that taking a view of the
whole of the summing up they did not see any reason to
dissent from it, and that keeping in view the Rules which
Their Lordships observed in the matter of granting leave to
appeal in criminal cases, they did not think that the case
raised questions which deserve further consideration by the
Privy Council, (vide Gangadhar Tilak v. Queen-

30

Empress. ”

28.4 Thereafter, the decision of the Federal Court in Niharendu Dutt

Majumdar v. The King Emperor31 was dealt with and it was noticed that

30
(1897) L.R. 25 I.A. 1.

31

(1942) F.C.R. 38
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the statement of law made by the Federal Court was not accepted by the

Privy Council. The discussion was: –

“While dealing with a case arising under Rule 34(6)(e) of the
Defence of India Rules under the Defence of India Act (35
of 1939), Sir Maurice Gwyer, C.J., speaking for the Federal
Court, made the following observations in the case
of Niharendu Dutt Majumdar v. King-Emperor31 and has
pointed out that the language of
Section 124-A of the Indian
Penal Code, which was in pari materia with that of the Rule
in question, had been adopted from the English Law, and
referred with approval to the observations of Fitzerald, J., in
the case quoted above; and made the following observations
which are quite apposite;

“… generally speaking, we think that the passage
accurately states the law as it is to be gathered from
an examination of a great number of judicial
pronouncements.

The first and most fundamental duty of every
Government is the preservation of order, since order
is the condition precedent to all civilisation and the
advance of human happiness. This duty has no doubt
been sometimes performed in such a way as to make
the remedy worse than the disease; but it does not
cease to be a matter of obligation because some on
whom the duty rests have performed it ill. It is to this
aspect of the functions of Government that in our
opinion the offence of sedition stands related. It is the
answer of the State to those who, for the purpose of
attacking or subverting it, seek (to borrow from the
passage cited above) to disturb its tranquillity, to
create public disturbance and to promote disorder, or
who incite others to do so. Words, deeds or writings
constitute sedition, if they have this intention or this
tendency; and it is easy to see why they may also
constitute sedition, if they seek, as the phrase is, to
bring Government into contempt. This is not made an
offence in order to minister to the wounded vanity of
Government, but because where Government and the
law cease to be obeyed because no respect is felt any
longer for them, only anarchy can follow. Public
disorder, or the reasonable anticipation or likelihood
of public disorder, is thus the gist of the offence. The
acts or words complained of must either incite to
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disorder or must be such as to satisfy reasonable men
that that is their intention or tendency.”

This statement of the law was not approved by Their
Lordships of the Judicial Committee of the Privy Council in
the case of
King-Emperor v. Sadashiv Narayan Bhalerao32.

The Privy Council, after quoting the observations of the
learned Chief Justice in Niharendu case31 while
disapproving of the decision of the Federal Court, observed
that there was no statutory definition of “sedition” in
England, and the meaning and content of the crime had to be
gathered from many decisions.”
(Emphasis supplied)

28.5 The conflict in the decision of the Federal Court and that of the

Privy Council was thereafter noticed by this Court as follows:

“Thus, there is a direct conflict between the decision of the
Federal Court in Niharendu case31 and of the Privy Council
in a number of cases from India and the Gold Coast, referred
to above. It is also clear that either view can be taken and can
be supported on good reasons. The Federal Court decision
takes into consideration, as indicated above, the pre-existing
Common Law of England in respect of sedition. It does not
appear from the report of the Federal Court decision that the
rulings aforesaid of the Privy Council had been brought to
the notice of Their Lordships of the Federal Court.”

28.6 The scope of section 124A of the IPC3 was considered thus: –

“The section was amended by the Indian Penal Code
Amendment Act (IV of 1898). As a result of the
amendment, the single explanation to the section was
replaced by three separate explanations as they stand now.

The section, as it now stands in its present form, is the result
of the several A.O.s of 1937, 1948 and 1950, as a result of
the constitutional changes, by the Government of India Act,
1935, by the Independent Act of 1947 and by the Indian

32
74 IA 89
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Constitution of 1950. Section 124A, as it has emerged after
successive amendments by way of adaptations as aforesaid,
reads as follows:

“Whoever by words, either spoken or written,
or by signs or by visible representation, or otherwise,
brings or attempts to bring into hatred or contempt, or
excites or attempts to excite disaffection towards the
Government established by law in India shall be
punished with transportation for life or any shorter
term to which fine may be added or with
imprisonment which may extend to three years, to
which fine may be added, or with fine.

Explanation 1. The expression “disaffection”
includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation
of the measures of the Government with a view to
obtain their alteration by lawful means, without
exciting or attempting to excite hatred, contempt or
disaffection do not constitute an offence under this
section.

Explanation 3, Comments expressing disapprobation
of the administrative or other action of the
Government without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an
offence under this section.”

This offence, which is generally known as the offence
of Sedition, occurs in
Chapter VI of the Indian Penal Code,
headed ‘Of offences against the State’. This species of
offence against the State was not an invention of the British
Government in India, but has been known in England for
centuries. Every State, whatever its form of Government,
has to be armed with the power to punish those who, by their
conduct, jeopardise the safety and stability of the State, or
disseminate such feeling of disloyalty as have the tendency
to lead to the disruption of the State or to public disorder. In
England, the crime has thus been described by Stephen in his
Commentaries on the Laws of England, 21st Edition, volume
IV, at pages 141-142, in these words:

“Section IX. Sedition and Inciting to
Disaffection – We are now concerned with conduct
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which, on the one hand, fall short of treason, and on
the other does not involve the use of force or violence.
The law has here to reconcile the right of private
criticism with the necessity of securing the safety and
stability of the State. Sedition may be defined as
conduct which has, either as its object or as its natural
consequence, the unlawful display of dissatisfaction
with the Government or with the existing order of
society.

The seditious conduct may be by words, by
deed, or by writing. Five specific heads of sedition
may be enumerated according to the object of the
accused. This may be either.

1. to excite disaffection against the King,
Government, or Constitution, or against
Parliament or the administration of justice;

2. to promote by unlawful means, any alteration in
Church or State;

3. to incite a disturbance of the peace ;

4. to raise discontent among the King’s subjects ;

5. to excite class hatred.

It must be observed that criticism on political matters
is not of itself sedition. The test is the manner in
which it is made. Candid and honest discussion is
permitted. The law only interferes when the
discussion passes the bounds of fair criticism. More
especially will this be the case when the natural
consequence of the prisoner’s conduct is to promote
public disorder.”

This statement of the law is derived mainly from the
address to the Jury by Fitzerald, J., in the case
of Reg v. Alexander Martin Sullivan33. In the course of his
address to the Jury, the learned Judge observed as follows:

“Sedition is a crime against society, nearly allied to
that of treason and it frequently precedes treason by a
short interval. Sedition in itself is a comprehensive
term, and it embraces all those practices, whether by
word, deed or writing, which are calculated to disturb
the tranquillity of the State, and lead ignorant persons
to endeavour to subvert the Government and the laws
of the empire. The objects of sedition generally are to
induce discontent and insurrection, and stir up

33
(1867-71) 11 Cox’s Criminal Law Cases, 44 at p. 45
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opposition to the Government, and bring the
administration of justice into contempt; and the very
tendency of sedition is to incite the people to
insurrection and rebellion. Sedition has been
described as disloyalty in action, and the law
considers as sedition all those practices which have
for their object to excite discontent or dissatisfaction,
to create public disturbance, or to lead to civil war; to
bring into hatred or contempt the Sovereign or the
Government, the laws or constitution of the realm,
and generally all endeavours to promote public
disorder.”

That the law has not changed during the course of the
centuries is also apparent from the following statement of
the law by Coleridge, J., in the course of his summing up to
the Jury in the case of Rex v. Aldred34:

“Nothing is clearer than the law on this head —
namely, that whoever by language, either written or
spoken, incites or encourages others to use physical
force or violence in some public matter connected
with the State, is guilty of publishing a seditious libel.

The word ‘sedition’ in its ordinary natural
signification denotes a tumult, an insurrection, a
popular commotion, or an uproar; it implies violence
or lawlessness in some form….”

In that case, the learned Judge was charging the Jury in
respect of the indictment which contained the charge of
seditious libel by a publication by the defendant.”

28.6.1 Finally, while considering the applicability of Section 124A of the

IPC3, especially in the context of the Right guaranteed under Article

19(1)(a) of the Constitution, this Court concluded: –

“It has not been questioned before us that the
fundamental right guaranteed by
Article 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

34
(1911-13) 22 Cox’s Criminal Law Cases, 1 at p. 3
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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
Section 124-A or Section 505 of the Indian Penal Code, as
to how far they are consistent with the requirements of clause
(2) of
Article 19 with particular reference to security of the
State and public order, the section, it must be noted,
penalises any spoken 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 persons
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 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
Section 124-A has been
characterised, comes, under Chapter VI relating to offences
against the State. Hence, any acts within the meaning of
Section 124-A which have the effect of subverting the
Government by bringing that Government into contempt or
hatred, or creating disaffection against it, would be within
the penal statute because the feeling of disloyalty to the
Government established by law or enmity to it imports the
idea of tendency to public disorder by the use of actual
violence or incitement to violence. In other words, any
written or spoken words, etc. which have implicit in them
the idea of subverting Government by violent means, which
are compendiously included in the term “revolution”, have
been made penal by the section in question. But the section
has taken care to indicate clearly that strong words used to
express disapprobation of the measures of Government with
a view to their improvement or alteration by lawful means
would not come within the section. Similarly, comments,
however strongly worded, expressing disapprobation of
actions of the 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
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48

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.

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 spoken
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 a 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 qua 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
Article 19(1)(a) of the Constitution
and the power of the legislature to impose reasonable
restrictions on that guaranteed right in the interest of, inter
alia, security of the State and public order. We have,
therefore, to determine how far the
Sections 124-A and 505
of the Indian Penal Code could be said to be within the
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justifiable limits of legislation. If it is held, in consonance
with the views expressed by the Federal Court in the case
of Niharendu Dutt Majumdar v. King-Emperor31 that the
gist of the offence of “sedition” is incitement to violence or
the tendency or the intention to create public disorder by
words spoken or written, which have the tendency or the
effect of bringing the Government established by law into
hatred or contempt or creating disaffection in the sense of
disloyalty to the State, in other words bringing the law into
line with the law of sedition in England, as was the intention
of the legislators when they introduced
Section 124-A into
the Indian Penal Code in 1870 as aforesaid, the law will be
within the permissible limits laid down in clause (2) of
Article 19 of the 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 laid 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.

In view of the conflicting decisions of the Federal
Court and of the Privy Council, referred to above, we have
to determine whether and how far the provisions of
Sections
124-A and
505 of the Indian Penal Code have to be struck
down as unconstitutional. If we accept the interpretation of
the Federal Court as to the gist of criminality in an alleged
crime of sedition, namely, incitement to disorder or tendency
or likelihood of public disorder or reasonable apprehension
thereof, the section may lie within the ambit of permissible
legislative restrictions on the fundamental right of freedom
of speech and expression. There can be no doubt that apart
from the provisions of clause (2) of
Article 19, Sections 124-
A and 505 are clearly violative of
Article 19(1)(a) of the
Constitution. But then we have to see how far the saving
clause, namely, clause (2) of
Article 19 protects the sections
aforesaid. Now, as already pointed out, in terms of the
amended clause (2), quoted above, the expression “in the
interest of … public order” are words of great amplitude and
are much more comprehensive then the expression “for the
maintenance of”, as observed by this Court in the case
of
Virendra v. State of Punjab35. Any law which is enacted
35
(1958) SCR 308 at p. 317
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in the interest of public order may be saved from the vice of
constitutional invalidity. If, on the other hand, we were to
hold that even without any tendency to disorder or intention
to create disturbance of law and order, by the use of words
written or spoken which merely create disaffection or
feelings of enmity against the Government, the offence of
sedition is complete, then such an interpretation of the
sections would make them unconstitutional in view of
Article 19(1)(a) read with clause (2). It is well settled that if
certain provisions of law construed in one way would make
them consistent with the Constitution, and another
interpretation would render them unconstitutional, the Court
would lean in favour of the former construction. The
provisions of the sections read as a whole, along with the
explanations, make it reasonably clear that the sections aim
at rendering penal only such activities as would be intended,
or have a tendency, to create disorder or disturbance of
public peace by resort to violence. As already pointed out,
the explanations appended to the main body of the section
make it clear that criticism of public measures or comment
on Government action, however strongly worded, would be
within reasonable limits and would be consistent with the
fundamental right of freedom of speech and expression. It is
only when the words, written or spoken, etc. which have the
pernicious tendency or intention of creating public disorder
or disturbance of law and order that the law steps in to
prevent such activities in the interest of public order. So
construed, the section, in our opinion, strikes the correct
balance between individual fundamental rights and the
interest of public order. It is also well settled that in
interpreting an enactment the Court should have regard not
merely to the literal meaning of the words used, but also take
into consideration the antecedent history of the legislation,
its purpose and the mischief it seeks to suppress [vide
(1)
Bengal Immunity Company Limited v. State of Bihar36
and (2)
R.M.D. Chamarbaugwala v. Union of India37.]
Viewed in that light, we have no hesitation in so construing
the provisions of the sections impugned in these cases as to
limit their application to acts involving intention or tendency
to create disorder, or disturbance of law and order, or
incitement to violence.

36

(1955) 2 SCR 603
37
(1957) SCR 930
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51

We may also consider the legal position, as it should
emerge, assuming that the main
Section 124-A is capable of
being construed in the literal sense in which the Judicial
Committee of the Privy Council has construed it in the cases
referred to above. On that assumption, is it not open to this
Court to construe the section in such a way as to avoid the
alleged unconstitutionality by limiting the application of the
section in the way in which the Federal Court intended to
apply it? In our opinion, there are decisions of this Court
which amply justify our taking that view of the legal
position. This Court, in the case of R.M.D.

Chamarbaugwalla v. Union of India37 has examined in
detail the several decisions of this Court, as also of the courts
in America and Australia. After examining those decisions,
this Court came to the conclusion that if the impugned
provisions of a law come within the constitutional powers of
the legislature by adopting one view of the words of the
impugned section or Act, the Court will take that view of the
matter and limit its application accordingly, in preference to
the view which would make it unconstitutional on another
view of the interpretation of the words in question. In that
case, the Court had to choose between a definition of the
expression “Prize Competitions” as limited to those
competitions which were of a gambling character and those
which were not. The Court chose the former interpretation
which made the rest of the provisions of the Act,
Prize
Competitions Act (42 of 1955), with particular reference to
Sections 4 and 5 of the Act and Rules 11 and 12 framed
thereunder, valid. The Court held that the penalty attached
only to those competitions which involved the element of
gambling and those competitions in which success depended
to a substantial degree on skill were held to be out of the
purview of the Act. The ratio decidendi in that case, in our
opinion, applied to the case in hand insofar as we propose to
limit its operation only to such activities as come within the
ambit of the observations of the Federal Court, that is to say,
activities involving incitement to violence or intention or
tendency to create public disorder or cause disturbance of
public peace.”
(Emphasis supplied)
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28.7 It may be noted here that the appeal of Kedar Nath Singh2 was

dismissed by this Court, affirming the view taken by the Courts below that

the speech, taken as a whole, was seditious.

28.8 This Court, thus, did not follow the decisions of the Privy Council

in Balgangadhar Tilak vs. Queen Empress30 and in King Emperor vs.

Sadashiv Narayan Bhalerao32 but held that the operation of Section 124A

of the IPC3 must be limited only to such activities as come within the ambit

of the observations of the Federal Court.

29. It may, therefore, be necessary to deal with the aforesaid decisions

of the Privy Council and that of the Federal Court in some detail.

30. Accused, Sadashiv Narayan Bhalerao had distributed certain

pamphlets on 26.01.1943 in respect of which he was tried for having

committed offence punishable under Rule 38(5) read with Rule 34 of the

Defence of India Rules. The relevant statutory provisions as quoted in the

decision of the Privy Council were :-

“The Defence of India Rules, which were made by the
Central Government under S. 2 of the Defence of India Act,
1939 (XXXV of 1939) – so far as material – provided as
follows :

“34.(6) prejudicial act’ means any act which is
intended or is likely-

….. ….. …..

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(e) to bring into hatred or contempt, or to excite
disaffection towards, His Majesty or the Crown
Representative or the Government established by law
in British India or in any other part of His Majesty’s
dominions;

….. ….. …..

(g) to cause fear or alarm to the public or to any
section of the public;

….. ….. …..

34.(7) ‘prejudicial report’ means any report,
statement or visible representation, whether true or
false, which, or the publishing of which, is, or is an
incitement to the commission of, a prejudicial act as
defined in this rule;

….. ….. …..

38.(i) No person shall, without lawful authority or
excuse,
….. ….. …..

(c) make, print, publish or distribute any document
containing, or spread by any other means whatsoever,
any prejudicial report;

….. ….. …..

(5) If any person contravenes any of the provisions of
this rule, he shall be punishable with imprisonment
for a term which may extend to five years or with fine
or with both.”

30.1 The trial Magistrate had acquitted the accused. The appeal by the

Crown having been dismissed, the matter was taken up before the Privy

Council. Some of the relevant passages from the decision of the Privy

Council were: –

“Their Lordships are unable to accept the test laid down by
the learned Chief Justice, as applicable in India.

Their Lordships agree, for the purposes of the present
appeal, that there is no material distinction between r. 34,
sub-r.6, sub-para. (e), and
S. 124A, Penal Code, though it
might be suggested that the words “an act which is intended
or likely to bring” in the Rule are wider than the words
“brings or attempts to bring” in
the Code. They further agree
with the learned Chief Justice that the omission in the rule of
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the three explanations in the Code should not lead to any
difference in construction.

The word “sedition” does not occur either in S. 124A or
in the Rule; it is only found as a marginal note to
S. 124A,
and is not an operative part of the section, but merely
provides the name by which the crime defined in the section
will be known. There can be no justification for restricting
the contents of the section by the marginal note. In England
there is no statutory definition of sedition; its meaning and
content have been laid down in many decisions, some of
which are referred to by the Chief Justice, but these decisions
are not relevant when you have a statutory definition of that
which is termed sedition, as we have in the present case.

…. ….. …..

In Wallace-Joshnson v. The King38 under sub-s.8 of
S.326
of the Criminal Code of the Gold Coast, “seditious
intention” was defined as an intention “to bring into hatred
or contempt or to excite disaffection against. . . . . the
Government of the Gold Coast as by law established.” It was
held by this Board that the words were clear and
unambiguous, and that incitement to violence was not a
necessary ingredient of the crime of sedition as thereby
defined.

In conclusion, their Lordships will only add that the
amendments of S.124A in 1898, the year after Tilak’s case
(3), by the inclusion of hatred or contempt and the addition
of the second and third explanations, did not affect or alter
the construction of the section laid down in Tilak’s case (3),
and, in their opinion, if the Federal Court, in Niharendu’s
case (5) had given their attention to Tilak’s case (3), they
should have recognized it as an authority on the construction
of S.124A by which they were bound.

Their Lordship are accordingly of opinion that the
appeal should be allowed and that the judgments and orders
of the courts below should be set aside, and that it should be
declared that it is not an essential ingredient of a prejudicial
act as defined in sub-para. (e) of r.34, sub-r.6, of the Defence
of India Rules that it should be an act which is intended or is
likely to incite to public disorder.”

38
(1940) A.C. 231
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31. We may also note the submission39 made on behalf of

Balgangadhar Tilak before the Privy Council which was paraphrased in

the report as under: –

“Asquith, Q.C. (Mayne, G. H. Blair, and W.C. Bonnerjee
with him), for the petitioner, contended that this was a case
in which an appeal should be admitted. The misdirection as
to the meaning of
Art.124A of the Penal Code raised a
question of great and general importance within the meaning
of Reg v. Bertrand. (1) The Judge’s direction was objected
to in that it defined the offence created by S.124A in terms
too wide, to the effect that disaffection meant simply absence
of affection, that it meant a feeling (not translated into overt
act) of hatred, enmity, dislike, hostility, contempt, and any
form of ill-will to the Government; that disloyalty was
perhaps the best term, and that it comprehended every
possible form of bad feeling to the Government; that a man
must not make or try to make others feel enmity of any kind
against the Government; that if a man expresses
condemnation of the measures legislative or executive of the
Government he was within his right, but that if he went
further and held up the Government itself to the hatred and
contempt of his readers by the imputation of motives or by
denouncing its foreign origin or character, that then he was
guilty under the Section. Reference was made to the
definition of the word “disaffection” by Petheram C.J. in
Queen Empress v. Jogendra Chunder Bose and Others23.

It was contended that Tilak’s comments had not
exceeded what in England would be considered within the
functions of a public journalist. It was further contended that
the misdirection complained of was of the greatest
importance, not merely to the petitioner, but to the whole of
the Indian press, and also to all the Indian subjects of the
Crown. It affected injuriously the liberty of the press, the
right to free speech and public meeting, and the right to
petition for redress of grievances.”

39
(1897) LR 25 I.A. 1 at 6
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31.1 In this respect, the address40 made by Balgangadhar Tilak to the

Jury, during the course of his trial, may also be noted. Some of the passages

from the address were :-

“To excite feelings of disaffection means that by your act
you must heighten feelings of disaffection when they exist
or create them when they do not. If you do not do anything
to excite feelings, if you merely express, if you merely
report, if you only express sentiments which exist at the time,
surely your act does not come under
Section 124A. Nay,
more, you may create a feeling of disapprobation. I can say
with impunity something is bad; it ought to be remedied. I
have to write; I have a right to do that and if I find fault it is
only natural that some ill-feeling is created. . . . So in this
approbation some ill feeling is necessarily implied. That is
the meaning of Explanation 2 to the Section; it refers to
“Comments expressing disapprobation of the measures of
the Government.” When I say that Government is going
wrong, evidently, I say something which the authorities may
not like. That is not sedition; if that were so, there could be
no progress at all and we shall have to be content at the end
of the 20th century with what we have at present. True
progress comes of agitation; and you are bound to consider
the defects pointed out and discussed and the reforms
proposed and to look to the real intention of the man. …..

….. ….. …..

Then there is another expression to which I wish to draw
your attention; and it is “Government established by law in
British India”. ‘Government’ here does not mean the
Executive or the Judiciary but it means Government in the
abstract. The word ‘Government’ is defined in
the Indian
Penal Code and includes any officer, even a polite constable.

It does not mean that if I say a police man is not doing his
duty then I am guilty of sedition. Go up higher. If certain
officials have not been doing their duty, I have every right to
say that these officials should be discharged; there should be
stricter supervision and that particular departments should be
altered. So long as the word “Government” is qualified by

40
“Trial of Tilak”: 2nd Edition., published by Publications Division, Ministry of Information and Broadcasting,
Government of India.

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the words “established by Law,” how can it have the
meaning given to it by a definition of the word
(“Government”) in a particular part in
the Penal Code? The
qualifying phrase makes it a quite different thing. It is
“Government established by law.” We shall have to come
afterwards to the question whether Bureaucracy is
Government or not? Whether the British Government is
solely dependent upon the Bureaucracy? Can it not exist
without it? The Bureaucracy may say so, it may be very
flattering to them to say that the services of certain officers
are indispensable to them but is it the meaning conveyed by
the expression “Government established by law in British
India”? Does it mean a “form of administration” and is it
consistent with that meaning? So far as ideals are concerned
they do not come under
the Penal Code. I may say that a
certain system of administration is better suited to the
country and may try to spread that opinion. You may not
agree with me but that is not the point. I have to express my
opinion and so long as I do not create any disaffection I am
allowed to express it freely. There can otherwise be no
progress; progress would be impossible unless you allow
intelligent gentlemen the right to express their opinion, to
influence the public and get the majority of the public on
their side. …
….. ….. …..

The question is, do you really intend as guardians of the
liberty of the Press to allow as much liberty here in India as
is enjoyed by the people of England? That is the point that
you will have to very carefully consider. I wish to show you
that mine is an Article written in controversy as a reply to an
opponent. It was penned to defend the interests of my
community. You may not agree with me in my views.
Different communities have different views. And every
community must have opportunity to express its own views.
I have not come here to ask you any grace. I am prepared to
stand by the consequences of my act. There is no question
about it. I am not going to tell you that I wrote the article in
a fit of madness. I am not a lunatic. I have written it believing
it my duty to write in the interest of the public in this way,
believing that that was the view of the community. I wanted
to express it, believing that the interests of the community
would not be otherwise safeguarded. Believe me when I say
that it was both in the interest of the people and Government
and this view should be placed before them. If you honestly
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go to the question like that it will be your duty to give a
verdict to not guilty, whatever may be your opinion about
me, even if you dislike me as much as you can. …..

….. ….. …..

In a homogeneous country like England, there are parties
like Conservatives, Liberals, Radicals and Nationalists; each
man takes his own view of public events. Take, for instance,
the Boer war; there were people who disapproved of it,
though they were a very small minority. The majority of the
nation determined upon going to war and the war did take
place. Those who represented the view of the minority used
arguments in favour of the Boers, they were called the pro-
Boer party, the others used arguments against the Boers. So
there was public opinion discussed on both sides and from
both points of view. That is the beauty of a free press, which
allows discussion in this way to the people of the country
upon a particular subject. …..”

32. Having considered the decisions of the Privy Council in

Balgangadhar Tilak30 and in King-Emperor v. Sadashiv Narayan

Bhalero32 we must now deal with the decision of the Federal Court in

Niharendu Dutt Majumdar v. The King Emperor31. A passage from the

decision of the Federal Court was quoted in Kedar Nath Singh v. State of

Bihar2 but immediately preceding passage from said decision of the Federal

Court is also noteworthy and was to the following effect:

“The time is long past when the mere criticism of
Governments was sufficient to constitute sedition, for it is
recognized that the right to utter honest and reasonable
criticism is a source of strength to a community rather than
a weakness. Criticism of an existing system of Government
is not excluded, nor even the expression of a desire for a
different system altogether. The language of
S. 124-A of the
Penal Code, if read literally, even with the explanations
attached to it, would suffice to make a surprising number of
persons in this country guilty of sedition; but no one
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59

supposes that it is to be read in this literal sense. The
language itself has been adopted from English law, but it is
to be remembered that in England the good sense of jurymen
can always correct extravagant interpretations sought to be
given by the executive Government or even by Judges
themselves, and if in this country that check is absent, or
practically absent, it becomes all the more necessary for the
Courts, when a case of this kind comes before them, to put
themselves so far as possible in the place of a jury, and to
take a broad view, without refining overmuch in applying
the general principles which underlie the law of sedition to
the particular facts and circumstances brought to their notice.

What then are these general principles? We are content
to adopt the words of a learned Judge, which are to be found
in every book dealing with this branch of the criminal law:
Page: “Sedition……embraces all those practices, whether
by word, deed or writing, which are calculated to disturb the
tranquillity of the State and lead ignorant persons to subvert
the Government. The objects of sedition generally are to
induce discontent and insurrection, to stir up opposition to
the Government, and to bring the administration of justice
into contempt; and the very tendency of sedition is to incite
the people to insurrection and rebellion. Sedition has been
described as disloyalty in action, and the law considers as
sedition all those practices which have for their object to
excite discontent or disaffection, to create public
disturbance, or to lead to civil war; to bring into hatred or
contempt the Sovereign or Government, the laws or the
constitution of the realm and generally all endeavours to
promote public disorder.” Fitzgerald, J., in R. v. Sullivan33.

It is possible to criticise one or two words or phrases in this
passage; “loyalty” and “dis-loyalty,” for example, have a
non-legal connotation also, and it is very desirable that there
should be no confusion between this and the sense in which
the words are used in a legal context; but, generally
speaking, we think that the passage accurately states the law
as it is to be gathered from an examination of a great number
of judicial pronouncements.”
(Emphasis supplied)
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33. These passages elucidate what was accepted by this Court in

preference to the decisions of the Privy Council in Balgangadhar Tilak30

and in King-Emperor v. Sadashiv Narayan Bhalerao32. The statements of

law deducible from the decision in Kedar Nath Singh2 are as follows: –

a) “the expression “the Government established by law” has
to be distinguished from the persons 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.”
….. ….. …..

b) “any acts within the meaning of Section 124-A which
have the effect of subverting the Government by bringing
that Government into contempt or hatred, or creating
disaffection against it, would be within the penal statute
because the feeling of disloyalty to the Government
established by law or enmity to it imports the idea of
tendency to public disorder by the use of actual violence
or incitement to violence.”
….. ….. …..

c) “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.”
….. ….. …..

d) “A citizen has a right to say or write whatever he likes
about the Government, or its measures, by way of
criticism or comment, so long as he does not incite
people to violence against the Government established
by law or with the intention of creating public disorder.”
….. ….. …..

41

e) “The provisions of the Sections read as a whole, along
with the explanations, make it reasonably clear that the
sections aim at rendering penal only such activities as
would be intended, or have a tendency, to create disorder
or disturbance of public peace by resort to violence.”

41
The reference was to
Sections 124A and 505 of the IPC.
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….. ….. …..

f) “It is only when the words, written or spoken, etc. which
have the pernicious tendency or intention of creating
public disorder or disturbance of law and order that the
law steps in to prevent such activities in the interest of
public order.”
….. ….. …..

g) “we propose to limit its operation only to such activities
as come within the ambit of the observations of the
Federal Court, that is to say, activities involving
incitement to violence or intention or tendency to create
public disorder or cause disturbance of public peace.”

As the statement of law at placetum (e) above indicates, it applies

to cases under Sections 124-A and 505 of the IPC3. According to this Court

only such activities which would be intended or have a tendency to create

disorder or disturbance of public peace by resort to violence – are rendered

penal.

34. Some of the decisions cited by the learned Counsel, touching upon

the content and the extent of the right of the Press, may also be adverted to

at this stage.

A) In the case of Indian Express Newspapers (Bombay) Private Ltd.

Ors. vs. Union of India Ors.42, this Court observed:

“25. The freedom of press, as one of the members of the
Constituent Assembly said, is one of the items around which
the greatest and the bitterest of constitutional struggles have
been waged in all countries where liberal constitutions
prevail. The said freedom is attained at considerable

42
(1985) 1 SCC 641
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62

sacrifice and suffering and ultimately it has come to be
incorporated in the various written constitutions. James
Madison when he offered the Bill of Rights to the Congress
in 1789 is reported as having said: “The right of freedom of
speech is secured, the liberty of the press is expressly
declared to be beyond the reach of this Government.” [See
1 Annals of Congress (1789-96) p. 141]. Even where there
are no written constitutions, there are well established
constitutional conventions or judicial pronouncements
securing the said freedom for the people. The basic
documents of the United Nations and of some other
international bodies to which reference will be made
hereafter give prominence to the said right. The leaders of
the Indian independence movement attached special
significance to the freedom of speech and expression which
included freedom of press apart from other freedoms During
their struggle for freedom they were moved by the American
Bill of Rights containing the First Amendment to the
Constitution of the United States of America which
guaranteed the freedom of the press Pandit Jawaharlal Nehru
in his historic resolution containing the aims and objects of
the Constitution to be enacted by the Constituent Assembly
said that the Constitution should guarantee and secure to all
the people of India among others freedom of thought and
expression. He also stated elsewhere that “I would rather
have a completely free press with all the dangers involved in
the wrong use of that freedom than a suppressed or regulated
press” [See D.R. Mankekar: The Press under
Pressure (1973) p. 25]. The Constituent Assembly and its
various committees and sub-committees considered freedom
of speech and expression which included freedom of press.

also as a precious right. The Preamble to the Constitution
says that it is intended to secure to all citizens among others
liberty of thought, expression, and belief. It is significant that
in the kinds of restrictions that may be imposed on the
freedom of speech and expression, any reasonable restriction
imposeable in the public interest is not one enumerated in
clause (2) of
Article 19. In Romesh Thappar v. State of
Madras20 and Brij Bhushan case43 this Court firmly
expressed its view that there could not be any kind of
restrictions on the freedom of speech and expression other
than those mentioned in
Article 19(2) and thereby made it

43
AIR 1950 SC 129 : 1950 SCR 605
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63

clear that there could not be any interference with that
freedom in the name of public interest.”
….. ….. …..

32. In today’s free world freedom of press is the heart of
social and political intercourse. The press has now assumed
the role of the public educator making formal and non-
formal education possible in a large scale particularly in the
developing world, where television and other kinds of
modern communication are not still available for all sections
of society. The purpose of the press is to advance the public
interest by publishing facts and opinions without which a
democratic electorate cannot make responsible judgments.
Newspapers being purveyors of news and views having a
bearing on public administration very often carry material
which would not be palatable to Governments and other
authorities. The authors of the articles which are published
in newspapers have to be critical of the actions of
Government in order to expose its weaknesses. Such articles
tend to become an irritant or even a threat to power.

….. ….. …..

33. Thomas I. Emerson in his article entitled “Toward, a
General Theory of the First Amendment” [(1963) 72 Yale
Law Journal 877 at p. 906] while dealing with the role of the
judicial institutions in a democratic society and in particular
of the Apex Court of U.S.A. in upholding the freedom of
speech and expression writes:

“The objection that our judicial institutions lack the
political power and prestige to perform an active role in
protecting freedom of expression against the will of the
majority raises more difficult questions. Certainly judicial
institutions must reflect the traditions, ideals and
assumptions, and in the end must respond to the needs,
claims and expectations, of the social order in which they
operate. They must not, and ultimately cannot, move too far
ahead or lag too far behind. The problem for the Supreme
Court is one of finding the proper degree of responsiveness
and leadership, or perhaps better, of short-term and long-

term responsiveness. Yet in seeking out this position the
Court should not underestimate the authority and prestige it
has achieved over the years. Representing the “conscience
of the community” it has come to possess a very real power
to keep alive and vital the higher values and goals toward
which our society imperfectly strives…. Given its prestige,
it would appear that the power of the Court to protect
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freedom of expression is unlikely to be substantially
curtailed unless the whole structure of our democratic
institutions is threatened.”

34. What is stated above applies to the Indian courts with
equal force. In Romesh Thappar case20, Brij Bhushan
case43,
Express Newspapers (Private) Ltd. v. Union of
India44, Sakal Papers (P) Ltd. v. Union of India45
and Bennett Coleman case46 this Court has very strongly
pronounced in favour of the freedom of press. Of these, we
shall refer to some observations made by this Court in some
of them.

35. In Romesh Thappar case20 this Court said at p. 602:

“… (The freedom) lay at the foundation of all
democratic organisations, for without free political
discussion no public education, so essential for the proper
functioning of the processes of popular government, is
possible. A freedom of such amplitude might involve risks
of abuse…. (But) ‘it is better to leave a few of its noxious
branches to their luxuriant growth, than, by pruning them
away, to injure the vigour of those yielding the proper
fruits’.”

36. In Bennett Coleman case46 A.N. Ray, C.J. on behalf of
the majority said at p. 796 (SCC p. 823, para 80) thus:

“The faith of a citizen is that political wisdom and virtue
will sustain themselves in the free market of ideas so long
as the channels of communication are left open. The faith
in the popular Government rests on the old dictum ‘let the
people have the truth and the freedom to discuss it and all
will go well’. The liberty of the press remains an ‘Ark of
the Covenant’ in every democracy…. The newspapers give
ideas. The newspapers give the people the freedom to find
out what ideas are correct.”

37. In the very same case, Mathew, J. observed at p. 818:
(SCC p. 846, paras 168, 169)
“The constitutional guarantee of freedom of
speech is not so much for the benefit of the press as it
is for the benefit of the public. The freedom of speech

44
AIR 1958 SC 578 : 1959 SCR 12
45
AIR 1962 SC 305 : (1962) 3 SCR 842
46
(1972) 2 SCC 788 : AIR 1973 SC 106 : (1973) 2 SCR 757
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includes within its compass the right of all citizens to
read and be informed. In Time Inc. v. Hill [385 US
374 : 17 L Ed 2d 456 : 87 S Ct 534 (1967)] the U.S.

Supreme Court said:

‘The constitutional guarantee of freedom of
speech and press are not for the benefit of the
press so much as for the benefit of all the
people.’ ”
In Griswold v. Connecticut47 the U.S. Supreme
Court was of the opinion that the right of freedom of
speech and press includes not only the right to utter or
to print, but the right to read.”

B) This Court in the case of S. Rangarajan v. P. Jagjivan Ram

Ors.48 held:

“36. The democracy is a Government by the people via open
discussion. The democratic form of Government itself
demands its citizens an active and intelligent participation in
the affairs of the community. The public discussion with
people’s participation is a basic feature and a rational process
of democracy which distinguishes it from all other forms of
Government. The democracy can neither work nor prosper
unless people go out to share their views. The truth is that
public discussion on issues relating to administration has
positive value. What Walter Lippmann said in another
context is relevant here:

“When men act on the principle of intelligence, they
go out to find the facts…. When they ignore it, they
go inside themselves and find out what is there. They
elaborate their prejudice instead of increasing their
knowledge.”

43. Brandies, J., in Whitney v. California49 propounded
probably the most attractive free speech theory:

“… that the greatest menace to freedom is an inert
people; that public discussion is a political duty;. .. It
is hazardous to discourage thought, hope and

47
381 US 479, 482 : 14 L Ed 2d 510 : 85 SCt 1678 (1965)
48
1989 (2) SCC 574
49
274 US 357, 375-78 (1927) : 71 L Ed 1045
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66

imagination; that the path of safety lies in the
opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for
evil counsels is good ones.”

45. The problem of defining the area of freedom of
expression when it appears to conflict with the various social
interests enumerated under
Article 19(2) may briefly be
touched upon here. There does indeed have to be a
compromise between the interest of freedom of expression
and special interests. But we cannot simply balance the two
interests as if they are of equal weight. Our commitment of
freedom of expression demands that it cannot be suppressed
unless the situations created by allowing the freedom are
pressing and the community interest is endangered. The
anticipated danger should not be remote, conjectural or far-
fetched. It should have proximate and direct nexus with the
expression. The expression of thought should be intrinsically
dangerous to the public interest. In other words, the
expression should be inseparably locked up with the action
contemplated like the equivalent of a “spark in a power keg”.

35. Reliance was also placed on the decision of the Constitution Bench

of this Court in The Superintendent, Central Prison, Fatehgarh and

another v. Dr. Ram Manohar Lohia50, which dealt with the expression

“Public Order” appearing in Article 19 (2) of the Constitution, the relevant

portion being :-

“9. …… The expression “public order” has a very wide
connotation. Order is the basic need in any organised
society. It implies the orderly state of society or community
in which citizens can peacefully pursue their normal
activities of life. In the words of an eminent Judge of the
Supreme Court of America “the essential rights are subject
to the elementary need for order without which the guarantee
of those rights would be a mockery”. The expression has not

50
AIR 1960 SC 633
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67

been defined in the Constitution, but it occurs in List II of its
Seventh Schedule and is also inserted by the Constitution
(First Amendment) Act, 1951 in clause (2) of
Article 19. The
sense in which it is used in
Article 19 can only be appreciated
by ascertaining how the Article was construed before it was
inserted therein and what was the defect to remedy which the
Parliament inserted the same by the said amendment. The
impact of clause (2) of
Article 19 on Article 19(1)(a) before
the said amendment was subject to judicial scrutiny by this
Court in
Romesh Thappar v. State of Madras20. There the
Government of Madras, in exercise of their powers under
Section 9(1-A) of the Madras Maintenance of Public Order
Act, 1949, purported to issue an order whereby they imposed
a ban upon the entry and circulation of the journal called the
“Cross Roads” in that State. The petitioner therein contended
that the said order contravened his fundamental right to
freedom of speech and expression. At the time when that
order was issued the expression “public order” was not in
Article 19(2) of the Constitution; but the words “the security
of the State” were there. In considering whether the
impugned Act was made in the interests of security of the
State, Patanjali Sastri, J., as he then was, after citing the
observation of Stephen in his Criminal Law of England,
states:

“Though all these offences thus involve
disturbances of public tranquillity and are in theory
offences against public order, the difference between
them being only a difference of degree, yet for the
purpose of grading the punishment to be inflicted in
respect of them they may be classified into different
minor categories as has been done by
the Indian Penal
Code. Similarly, the Constitution, in formulating the
varying criteria for permissible legislation imposing
restrictions on the fundamental rights enumerated in
Article 19(1), has placed in a distinct category those
offences against public order which aim at
undermining the security of the State or overthrowing
it, and made their prevention the sole justification for
legislative abridgement of freedom of speech and
expression, that is to say, nothing less than
endangering the foundations of the State or
threatening its overthrow could justify curtailment of
the rights to freedom of speech and expression ….”
Writ Petition (Criminal) No.154 of 2020
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68

The learned Judge continued to state:

“The Constitution thus requires a line to be drawn
in the field of public order or tranquillity marking off,
may be, roughly, the boundary between those serious
and aggravated forms of public disorder which are
calculated to endanger the security of the State and
the relatively minor breaches of the peace of a purely
local significance, treating for this purpose
differences in degree as if they were differences in
kind.”

The learned Judge proceeded further to state:

“We are therefore of opinion that unless a law
restricting freedom of speech and expression is
directed solely against the undermining of the
security of the State or the overthrow of it, such law
cannot fall within the reservation under clause (2) of
Article 19, although the restrictions which it seeks to
impose may have been conceived generally in the
interests of public order.”
This decision establishes two propositions viz. (i)
maintenance of public order is equated with maintenance of
public tranquillity; and (ii) the offences against public order
are divided into two categories viz. (a) major offences
affecting the security of the State, and (b) minor offences
involving breach of purely local significance. This Court
in
Brij Bhushan v. State of Delhi43 followed the earlier
decision in the context of Section 7(1)(c) of the East Punjab
Public Safety Act, 1949. Fazl Ali, J., in his dissenting
judgment gave the expression “public order” a wider
meaning than that given by the majority view. The learned
Judge observed at p. 612 thus:

“When we approach the matter in this way, we
find that while ‘public disorder’ is wide enough to
cover a small riot or an affray and other cases where
peace is disturbed by, or affects, a small group of
persons, ‘public unsafety’ (or insecurity of the State),
will usually be connected with serious internal
disorders and such disturbances of public tranquillity
as jeopardize the security of the State.”
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69

This observation also indicates that “public order” is
equated with public peace and safety. Presumably in an
attempt to get over the effect of these two decisions, the
expression “public order” was inserted in
Article 19(2) of
the Constitution by the Constitution (First Amendment) Act,
1951, with a view to bring in offences involving breach of
purely local significance within the scope of permissible
restrictions under clause (2) of
Article 19. After the said
amendment, this Court explained the scope of Romesh
Thapper’s case20 in
State of Bihar v. Shailabala Devi51. That
case was concerned with the constitutional validity of
Section 4(1)(a) of the Indian Press (Emergency Powers) Act,
1931. It deals with the words or signs or visible
representations which incite to or encourage, or tend to incite
to or encourage the commission of any offence of murder or
any cognizable offence involving violence. Mahajan, J., as
he then was, observed at p. 660:

“The deduction that a person would be free to
incite to murder or other cognizable offence through
the press with impunity drawn from our decision
in Romesh Thapper case could easily have been
avoided as it was avoided by Shearer, J., who in very
emphatic terms said as follows:

‘I have read and re-read the judgments of
the Supreme Court, and I can find nothing in
them myself which bear directly on the point
at issue, and leads me to think that, in their
opinion, a restriction of this kind is no longer
permissible.’”

The validity of that section came up for consideration
after the Constitution (First Amendment) Act, 1951, which
was expressly made retrospective, and therefore the said
section clearly fell within the ambit of the words “in the
interest of public order”. That apart the observations of
Mahajan, J., as he then was, indicate that even without the
amendment that section would have been good inasmuch as
it aimed to prevent incitement to murder.

10. The words “public order” were also understood in
America and England as offences against public safety or

51
(1952) SCR 654
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70

public peace. The Supreme Court of America observed
in Cantewell v. Connecticut52 thus:

“The offence known as breach of the peace
embraces a great variety of conduct destroying or
menacing public order and tranquillity. It includes not
only violent acts and words likely to produce violence
in others. No one would have the hardihood to
suggest that the principle of freedom of speech
sanctions incitement to riot … When clear and
present danger of riot, disorder, interference with
traffic upon the public streets, or other immediate
threat to public safety, peace, or order appears, the
power of the State to prevent or punish is obvious.”
The American decisions sanctioned a variety of
restrictions on the freedom of speech in the interests of
public order. They cover the entire gamut of restrictions that
can be imposed under different heads in
Article 19(2) of our
Constitution. The following summary of some of the cases
of the Supreme Court of America given in a well-known
book on Constitutional law illustrates the range of categories
of cases covering that expression. “In the interests of public
order, the State may prohibit and punish the causing of ‘loud
and raucous noise’ in streets and public places by means of
sound amplifying instruments, regulate the hours and place
of public discussion, and the use of the public streets for the
purpose of exercising freedom of speech; provide for the
expulsion of hecklers from meetings and assemblies, punish
utterances tending to incite an immediate breach of the peace
or riot as distinguished from utterances causing mere ‘public
inconvenience, annoyance or unrest’”. In England also Acts
like Public Order Act, 1936, Theatres Act, 1843 were
passed: the former making it an offence to use threatening,
abusive or insulting words or behaviour in any public place
or at any public meeting with intent to provoke a breach of
the peace or whereby a breach of the peace is likely to be
caused, and the latter was enacted to authorise the Lord
Chamberlain to prohibit any stage play whenever he thought
its public performance would militate against good manners,
decorum and the preservation of the public peace. The
reason underlying all the decisions is that if the freedom of
speech was not restricted in the manner the relevant Acts did,
public safety and tranquillity in the State would be affected.

52

(1940) 310 US 296, 308
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71

11. But in India under Article 19(2) this wide concept of
“public order” is split up under different heads. It enables the
imposition of reasonable restrictions on the exercise of the
right to freedom of speech and expression in the interests of
the security of the State, friendly relations with foreign
States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.
All the grounds mentioned therein can be brought under the
general head “public order” in its most comprehensive sense.
But the juxtaposition of the different grounds indicates that,
though sometimes they tend to overlap, they must be
ordinarily intended to exclude each other. “Public order” is
therefore something which is demarcated from the others. In
that limited sense, particularly in view of the history of the
amendment, it can be postulated that “public order” is
synonymous with public peace, safety and tranquillity.”
(Emphasis supplied)

36. Having dealt with the applicability of Section 124A of the IPC3 and

the content of the rights of a citizen and of the Press, the next stage is to see

whether the petitioner is right in his submission that no offence as alleged,

has been made out. We need not set out the principles, on the basis of which

an FIR or a Complaint or pending Criminal proceedings can be quashed.

Those principles, post the decision of this Court in State of Haryana and

Others vs. Bhajan Lal and Others53 are well settled. We may however refer

to two decisions of this Court where, in the context of the alleged offences

under Sections 153A and 505 of the IPC3, the criminal proceedings were

quashed.

53

(1992) Suppl 1 SCC 335
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72

A) In Manzar Sayeed Khan vs. State of Maharashtra and Another54,

it was laid down that the requisite intention to promote feelings of enmity

or hatred between different classes of people, must be judged primarily by

“the language of the book and the circumstances in which the book was

written”; and accepted that the effect of the words must be judged from the

standards of reasonable, strong minded, firm and courageous men. It was

observed: –

“16. Section 153-A IPC, as extracted hereinabove, covers a
case where a person by words, either spoken or written, or
by signs or by visible representations or otherwise, promotes
or attempts to promote, disharmony or feelings of enmity,
hatred or ill will between different religious, racial, language
or regional groups or castes or communities or acts
prejudicial to the maintenance of harmony or is likely to
disturb the public tranquillity. The gist of the offence is the
intention to promote feelings of enmity or hatred between
different classes of people. The intention to cause disorder
or incite the people to violence is the sine qua non of the
offence under
Section 153-A IPC and the prosecution has to
prove prima facie the existence of mens rea on the part of the
accused. The intention has to be judged primarily by the
language of the book and the circumstances in which the
book was written and published. The matter complained of
within the ambit of
Section 153-A must be read as a whole.
One cannot rely on strongly worded and isolated passages
for proving the charge nor indeed can one take a sentence
here and a sentence there and connect them by a meticulous
process of inferential reasoning.

17. In Ramesh v. Union of India55 this Court held that TV
serial Tamas did not depict communal tension and violence
and the provisions of
Section 153-A IPC would not apply to

54
(2007) 5 SCC 1
55
(1988) 1 SCC 668
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73

it. It was also not prejudicial to the national integration
falling under
Section 153-B IPC. Approving the
observations of Vivian Bose, J. in Bhagwati Charan
Shukla v. Provincial Govt.56 the Court observed that:

“the effect of the words must be judged from the
standards of reasonable, strong-minded, firm and
courageous men, and not those of weak and
vacillating minds, nor of those who scent danger in
every hostile point of view. … It is the standard of
ordinary reasonable man or as they say in English law
‘the man on the top of a Clapham omnibus’.”
(Ramesh case55, SCC p. 676, para 13)”

B) In Patricia Mukhim vs. State of Meghalaya and Others57, the

requisite intention to bring out the basic ingredient of offences under

Sections 153A and 505 (1) (c) of the IPC3 was found to be absent. This

Court observed:-

“13. In the instant case, applying the principles laid down by
this Court as mentioned above, the question that arises for
our consideration is whether the Facebook post-dated
04.07.2020 was intentionally made for promoting
class/community hatred and has the tendency to provoke
enmity between two communities. A close scrutiny of the
Facebook post would indicate that the agony of the
Appellant was directed against the apathy shown by the
Chief Minister of Meghalaya, the Director General of Police
and the Dorbar Shnong of the area in not taking any action
against the culprits who attacked the non-tribals youngsters.
The Appellant referred to the attacks on nontribals in 1979.

At the most, the Facebook post can be understood to
highlight the discrimination against nontribals in the State of
Meghalaya. However, the Appellant made it clear that
criminal elements have no community and immediate action
has to be taken against persons who had indulged in the

56
AIR 1947 Nag 1
57
2021 SCC OnLine SC 258
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74

brutal attack on non-tribal youngsters playing basketball.
The Facebook post read in its entirety pleads for equality of
non-tribals in the State of Meghalaya. In our understanding,
there was no intention on the part of the Appellant to
promote class/community hatred. As there is no attempt
made by the Appellant to incite people belonging to a
community to indulge in any violence, the basic ingredients
of the offence under Sections 153 A and 505(1)(c) have not
been made out. Where allegations made in the FIR or the
complaint, even if they are taken on their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused, the FIR is
liable to be quashed58.”

37. According to the respondents, apart from the offences spelt out in

the FIR, certain other offences are also made out. The instant case,

therefore, has to be seen from both the perspectives, namely whether any

of the offences as stated in the FIR and whether those referred to in the

submissions of the respondents, are made out or not.

38. Leaving aside two incorrect statements made in the FIR which were

dealt with in paragraph 27 hereinabove, the following assertions from the

talk show are relied upon to say that the offences as alleged are made out: –

“i) Our biggest failure has been that we do not have
enough facilities to carry out testing.

ii) Till now we do not have any information how many
(PPE suits, N95 masks and masks of 3 ply) we have and
how many will become available by when.

iii) The Ventilators needed in other countries and in India,
respiratory devices and sanitisers were being exported
58
State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335
Writ Petition (Criminal) No.154 of 2020
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75

till 24.3.2020 instead of keeping these for use in our
country.

iv) That supply chains got disrupted due to blockage of
roads and now it is being heard that transportation of
essential goods has been allowed.

v) It is not difficult to imagine that when the supply chains
have been closed, when the shops are closed, some
people had gone to the extent of fearing food riots
which have not happened in our country could happen.

vi) When people started returning from Mumbai …. That
should have been a big signal for the Government
about the effect the complete lockdown in the country
can bring about, but no lessons were learnt.”

39. We now consider these statements.

A) It is common knowledge that the countries all over the world found

themselves wanting in terms of infrastructure and facilities to cope up with

the effects of Covid-19 Pandemic. Considering the size of the population

of this country, the testing facilities to gauge and check the spread and effect

of the Pandemic, at least in the initial stages of the surge, were not exactly

adequate. If in that light, the petitioner made any comments about testing

facilities or PPE Suits, N-95 masks and masks of 3 ply, those comments in

first two statements, cannot be anything other than appraisal of the situation

then obtaining. It was not even the case of the respondents that these two

statements were factually incorrect.

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76

B) With regard to the third statement, the contention of the respondents

was that the ban on export was imposed on 19.03.2020 and the said

statement was therefore not quite correct. It was also submitted that the

Petitioner produced no evidence of actual exports before the ban was

imposed on 19.03.2020 and that there were no exports immediately

proceeding the imposition of ban.

C) The effect of Nation-wide lockdown which came into effect from

the midnight intervening 24.03.2020 and 25.03.2020, according to the

Petitioner, resulted in disruption of supply chains due to blockage of roads.

It was the submission of the respondents that by Consolidated Guidelines

issued on 28.03.2020 (which was stated to be an order under Section 188

of the IPC3), adequate steps were directed to be taken to ensure that there

was no disruption in supply of essential goods. It must be stated that the

fourth statement did acknowledge that the transportation of essential goods

was being allowed and, in that sense, it was more or less correct depiction

of the state of affairs then prevailing.

D) The emphasis to a great extent, were, however, put on the fifth and

the sixth statements and it was strongly contended that said statements not

only gave factually incorrect information but amounted to incite the general
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77

public and that it was because of such incorrect information, the movement

of migrant workers had begun.

On the other hand, reliance was placed by the petitioner on the

interview of former Chief Statistician reported on 28.03.2020 that if food

requirements of migrant workers were not fulfilled amid countrywide

lockdown, food riots could be a real possibility. It was submitted that by

the time the talk show was uploaded, the movement of migrant workers had

already started and was at the peak.

40. It may be relevant to note here that Writ Petition (C) No.468 of

2020 (Alakh Alok Srivastava v. Union of India etc.) and connected

petition59, filed on 29.03.2020 by two Advocates, sought to highlight the

plight of migrant workers. These matters came up on 31.03.2020 before

this Court when it was observed:-

“In the instant writ petitions, we are concerned about the
migrant labourers who have started leaving their places of
work for their home villages/towns located at distant places.
For example, thousands of migrant labourers left Delhi to
reach their homes in the States Uttar Pradesh and Bihar, by
walking on the highways.

We are informed that the labourers who are unemployed due
to lock down were apprehensive about their survival. Panic
was created by some fake news that the lock down would
last for more than three months.

….. ….. …..
59

Writ Petition (C) No.469 of 2020 (Rashmi Bansal v. Union of India)
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78

During the course of hearing, the Solicitor General of India
made a statement that the information received by the
Control Room today at 2.30 A.M. showed that 21,064 relief
camps have been set up by various State
Governments/Union Territories where the migrant labourers
have been shifted and they are being provided with basic
amenities like food, medicines, drinking water, etc.
According to the Status Report, 6,66,291 persons have been
provided shelters and 22,88,279 persons have been provided
food.

….. ….. …..

The Solicitor General of India has also referred to the Status
Report to make a submission that the exodus of migrant
labourers was triggered due to panic created by some
fake/misleading news and social media.

….. ….. …..

While informing this Court about the steps taken by the
Government of India to ensure that the migrant labourers are
being shifted to nearby shelters/relief camps from place they
were found to be walking and basic amenities being
provided to them, the Union of India has sought a direction
from this Court to the State Governments and the Union
Territories to implement the directions issued by the Central
Government. A further direction was sought to prevent fake
and inaccurate reporting whether intended or not, either by
electronic print or social medial which will cause panic in
the society.

….. ….. …..

The migration of large number of labourers working in the
cities was triggered by panic created by fake news that the
lock down would continue for more than three months. Such
panic driven migration has caused untold suffering to those
who believed and acted on such news. In fact, some have lost
their lives in the process. It is therefore not possible for us to
overlook this menace of fake news either by electronic, print
or social media.

Section 54 of the Disaster Management Act, 2005 provides
for punishment to a person who makes or circulates a false
alarm or warning as to disaster or its severity or magnitude,
leading to panic. Such person shall be punished with
imprisonment which may extend to one year or with fine.
Disobedience to an order promulgated by a public servant
would result in punishment under section 188 of the Indian
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79

Penal Code. An advisory which is in the nature of an order
made by the public authority attracts
section 188 of the
Indian Penal Code.

We trust and expect that all concerned viz., State
Governments, Public Authorities and Citizens of this
country will faithfully comply with the directives, advisories
and orders issued by the Union of India in letter and spirit in
the interest of public safety.

In particular, we expect the Media (print, electronic or
social) to maintain a strong sense of responsibility and
ensure that unverified news capable of causing panic is not
disseminated. A daily bulletin by the Government of India
through all media avenues including social media and
forums to clear the doubts of people would be made active
within a period of 24 hours as submitted by the Solicitor
General of India. We do not intend to interfere with the free
discussion about the pandemic, but direct the media refer to
and publish the official version about the developments.”

41. The developments referred to in the aforementioned Order show

that the movement of migrant workers back to their hometown or villages

had posed an alarming situation. The writ petitions did bring out those

issues, in response to which the concern shown by the Government and the

steps undertaken by the authorities were placed on record. This Court

suggested that a daily bulletin by the Government of India be made active

so that correct and precise information was made available to the general

public and the exodus of migrant workers could thus be checked. However,

the Order also shows the magnitude of the problem which required about
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80

6,66,291 persons to be provided shelter and 22,88,279 persons to be

provided food.

42. What was prevailing on 30.03.2020 was therefore clear and migrant

workers in huge numbers were moving towards their hometowns/villages.

In the circumstances, there would naturally be some apprehension about the

shelter and food to be provided to them en-route. The former Chief

Statistician had expressed a possibility with the intent to invite the attention

of the authorities. If the petitioner in his talk show uploaded on 30.03.2020,

that is even before the matter was taken up by this Court, made certain

assertions in his 5th and 6th statement, he would be within his rights to say

that as a Journalist he was touching upon issues of great concern so that

adequate attention could be bestowed to the prevailing problems. It cannot

be said that the petitioner was spreading any false information or rumours.

It is not the case of the respondents that the migrant workers started moving

towards their hometowns/villages purely as a result of the statements made

by the petitioner. Such movement of migrant workers had begun long

before. In the circumstances, these statements can neither be taken to be an

attempt to incite migrant workers to start moving towards their hometowns

or villages nor can it be taken to be an incitement for causing any food riots.
Writ Petition (Criminal) No.154 of 2020
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81

The situation was definitely alarming around 30.03.2020 and as a

journalist if the petitioner showed some concern, could it be said that he

committed offences as alleged.

43. The Principles culled out in paragraph 33 hereinabove from the

decision of Court in Kedar Nath Singh2 show that a citizen has a right to

criticize or comment upon the measures undertaken by the Government and

its functionaries, so long as he does not incite people to violence against the

Government established by law or with the intention of creating public

disorder; and that it is only when the words or expressions have pernicious

tendency or intention of creating public disorder or disturbance of law and

order that Sections 124A and 505 of the IPC3 must step in.

In our view, the statements by the petitioner as mentioned

hereinabove, if read in the light of the principles emanating from the

decision in Kedar Nath Singh2 and against the backdrop of the

circumstances when they were made, can at best be termed as expression

of disapprobation of actions of the Government and its functionaries so that

prevailing situation could be addressed quickly and efficiently. They were

certainly not made with the intent to incite people or showed tendency to

create disorder or disturbance of public peace by resort to violence. The

petitioner was within the permissible limits laid down in the decision of this
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82

Court in Kedar Nath Singh2. It may be that certain factual details in the 3rd

statement regarding the date when the ban came into effect were not

completely correct. However, considering the drift of the entire talk show

and all the statements put together it cannot be said that the petitioner

crossed the limits set out in the decision of this Court in Kedar Nath Singh2.

44. We are, therefore, of the firm view that the prosecution of the

petitioner for the offences punishable under Sections 124A and 505 (1) (b)

of the IPC3 would be unjust. Those offences, going by the allegations in the

FIR and other attending circumstances, are not made out at all and any

prosecution in respect thereof would be violative of the rights of the

petitioner guaranteed under Article 19(1)(a) of the Constitution.

45. The other offending provision referred to in the FIR is Section 501

of the IPC3 which is printing or engraving a matter which is defamatory to

any person. As a matter of fact, the cognizance with respect to an offence

punishable under Chapter XXI of the IPC3 (Section 501 of the IPC3 is part

of said Chapter) can be taken by a Court only upon a complaint made by

the person aggrieved. Without going into such technicalities, in our view,

there is nothing defamatory in the statements made by the petitioner.

Further, the statements of the petitioner would be covered by the second

and third exceptions to Section 499 of the IPC3. In some of the cases
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83

decided by this Court, for example, in Jawaharlal Darda and Others vs.

Manoharrao Ganpatrao Kapsikar and Another60, Rajendra Kumar

Sitaram Pande and Others vs. Uttam and Another61, Vivek Goenka and

Others vs. Y.R. Patil62, and S. Khushboo vs. Kanniammal and Another63,

relying on exceptions to Section 499 of the IPC3, the criminal proceeding

initiated against the accused were quashed. Thus, the instant proceedings,

in so far as Section 501 IPC3 is concerned, also deserve to be quashed.

46. The other provision referred to in the FIR was Section 268 of the

IPC3 which is nothing but the definition of “Public Nuisance” and is not a

penal provision in itself which prescribes any punishment. It was also not

the case of the respondent that any penal provision involving element of

“Public Nuisance” was attracted in the instant case.

47. Thus, all the offences set out in the FIR, in our considered view, are

not made out at all.

48. We now turn to the case with regard to the offences which were not

spelt out in the FIR. It was contended by the respondents that in addition

to the offences specifically set out in the FIR, the petitioner would also be

60
(1998) 4 SCC 112
61
(1999) 3 SCC 134
62
(2000) 9 SCC 87
63
(2010) 5 SCC 600
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guilty of the offences punishable under Sections 52 and 54 of the DM Act1

and Section 188 of the IPC3. According to the respondents, the statements

made by the petitioner during the Talk Show amounted to circulating a false

alarm and would therefore be covered by Section 54 of the DM Act1; and

that the petitioner would also be guilty of having violated communications

dated 24.3.2020 and 28.3.2020 (set out earlier in paragraph 14) and thereby

committed offences under Section 188 of the IPC3.

49. The response of Mr. Vikas Singh, learned Senior Advocate for the

petitioner was that by virtue of Section 6064 of the DM Act1, the offences

punishable under the provisions of the DM Act1 could be taken cognizance

of only upon a complaint being made by the certain designated officials or

functionaries. Similarly, in respect of offence under Section 188 of the

IPC3, by virtue of Section 195 of the Code, cognizance could be taken only

upon a complaint in writing made by the concerned public servant whose

orders were allegedly violated or by someone who was administratively

superior to such public servant. These statutory requirements having not

64

60. Cognizance of offences.—No court shall take cognizance of an offence under this Act except on a complaint
made by—

(a) the National Authority, the State Authority, the Central Government, the State Government, the District
Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case
may be; or

(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence
and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the
State Government, the District Authority or any other authority or officer authorised as aforesaid
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been satisfied, the submission that the offences punishable under the DM

Act1 and under Section 188 of the IPC3 were made out, was required to be

rejected. Reliance was placed by him on the decisions of this Court in

Daulat Ram v. State of Punjab65 and in C. Muniappan and Others v. State

of Tamil Nadu66 as well as cases referred to in C. Muniappan66.

The other facet of the submission was that even on merits, the

statements made by the petitioner in his Talk Show did not satisfy the

requirements of both said statutory provisions and therefore the petitioner

was entitled to the relief prayed for.

50. In reply, Mr. S.V. Raju, learned Additional Solicitor General

submitted that the injunctions spelt out in Section 60 of the DM Act1 and

Section 195 of the Code would come into play only at the stage of

cognizance by the Court and as such there would not be any bar to the

invocation of these provisions at a stage anterior to the stage of cognizance.

51. We need not go into the technical issue whether the initiation of the

proceedings in respect of the offences punishable under DM Act1 and/or

under Section 188 of the IPC3 could only be after an appropriate complaint

65
AIR 1962 SC 1206
66
(2010) 9 SCC 567
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would be made in writing as submitted by the petitioner, as in our

considered view, none of these offences as submitted by the respondents

get attracted in the instant matter.

A) Section 188 of the IPC3 deals with “Disobedience to order duly

promulgated by public servant”. If a person, though directed inter alia to

abstain from a certain act, disobeys a direction issued by a Public Servant

lawfully empowered to promulgate such direction or order, Section 188 of

the IPC3 may get attracted. The communications dated 24.3.2020 and

28.3.2020 which have been quoted earlier were pressed into service and it

was submitted that said communications which everyone was bound and

obliged to follow, were violated by the petitioner. We have gone through

these communications and in our view, there was nothing therein which

was violated as a result of the Talk Show uploaded by the petitioner. An

attempt was then made to rely on the order dated 31.3.20207 to submit that

this Court had issued certain directions and expected the media to maintain

strong sense of responsibility and ensure that unverified news capable of

causing panic was not disseminated. First, the direction was issued on

31.3.2020 i.e. after the episode was uploaded on 30.3.2020 and secondly,

we have not found any infirmity or illegality in the statements made by the

petitioner, on the basis of which it could be possibly be said that he was
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87

attempting to disseminate any news capable of causing panic.

Consequently, the provisions of Section 188 of the IPC3 would not get

attracted at all.

B) Section 52 of the DM Act1 deals with the lodging of a false claim

by a person for obtaining any relief, assistance, etc., which provision has

nothing to do with the present fact situation. Section 54 deals with cases

where a person makes or circulates a false alarm or warning as to disaster

or its severity or magnitude, leading to panic. We have already held that the

statements made by the petitioner were within the limits prescribed by the

decision of this Court in Kedar Nath Singh2 and that the statements were

without any intent to incite people for creating public disorder. It was not

even suggested that as a result of statements made by the petitioner any

situation of panic had resulted in any part of the country.

52. In the circumstances, without going into the technicalities whether

the initiation of the proceedings could only be through a complaint filed in

conformity with Section 60 of the DM Act1 or Section 195 of the Code, in

our view, the provisions of the DM Act1 or Section 188 of the IPC3 are not

attracted at all.

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53. Consequently, we accept the first prayer made by the petitioner in

this Writ Petition and quash FIR No.0053 dated 6.5.2020 registered at

Police Station Kumarsain, District Shimla, Himachal Pradesh and any

proceedings arising therefrom. We must however clarify that the issues

concerning ownership of HW News which had aired the talk show or the

nature and effect of violation, if any, of the Norms of Journalistic conduct

framed by the Press Council of India, have not been gone into by us as they

do not strictly are of any concern for determining first prayer made in the

writ petition.

54. We now come to the second prayer made in the writ petition, in

support of which reliance was placed by the petitioner on the decisions of

this Court in Jacob Mathew4 and Lalita Kumari5. In Jacob Mathew4, a

Bench of three Judges of this Court issued certain guidelines with respect

to the prosecution of medical professionals.

“Guidelines — Re: prosecuting medical professionals

50. As we have noticed hereinabove that the cases of doctors
(surgeons and physicians) being subjected to criminal
prosecution are on an increase. Sometimes such
prosecutions are filed by private complainants and
sometimes by the police on an FIR being lodged and
cognizance taken. The investigating officer and the private
complainant cannot always be supposed to have knowledge
of medical science so as to determine whether the act of the
accused medical professional amounts to a rash or negligent
act within the domain of criminal law under
Section 304-A
IPC. The criminal process once initiated subjects the medical
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professional to serious embarrassment and sometimes
harassment. He has to seek bail to escape arrest, which may
or may not be granted to him. At the end he may be
exonerated by acquittal or discharge but the loss which he
has suffered to his reputation cannot be compensated by any
standards.

51. We may not be understood as holding that doctors can
never be prosecuted for an offence of which rashness or
negligence is an essential ingredient. All that we are doing is
to emphasise the need for care and caution in the interest of
society; for, the service which the medical profession
renders to human beings is probably the noblest of all, and
hence there is a need for protecting doctors from frivolous
or unjust prosecutions. Many a complainant prefer recourse
to criminal process as a tool for pressurising the medical
professional for extracting uncalled for or unjust
compensation. Such malicious proceedings have to be
guarded against.

52. Statutory rules or executive instructions incorporating
certain guidelines need to be framed and issued by the
Government of India and/or the State Governments in
consultation with the Medical Council of India. So long as it
is not done, we propose to lay down certain guidelines for
the future which should govern the prosecution of doctors
for offences of which criminal rashness or criminal
negligence is an ingredient. A private complaint may not be
entertained unless the complainant has produced prima
facie evidence before the court in the form of a credible
opinion given by another competent doctor to support the
charge of rashness or negligence on the part of the accused
doctor. The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or
omission, obtain an independent and competent medical
opinion preferably from a doctor in government service,
qualified in that branch of medical practice who can
normally be expected to give an impartial and unbiased
opinion applying the Bolam67 test to the facts collected in the
investigation. A doctor accused of rashness or negligence,
may not be arrested in a routine manner (simply because a

67
Balam vs. Friern Hospital Management Committee: (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)
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charge has been levelled against him). Unless his arrest is
necessary for furthering the investigation or for collecting
evidence or unless the investigating officer feels satisfied
that the doctor proceeded against would not make himself
available to face the prosecution unless arrested, the arrest
may be withheld.”
(Emphasis supplied)

55. Before issuing the aforesaid guidelines, this Court considered the

illustrations mentioned below Sections 88, 92 and 93 of the IPC3 and some

relevant decisions, whereafter conclusions were summed up as under:-

“Conclusions summed up

48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to
do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent
and reasonable man would not do. The definition of
negligence as given in Law of Torts, Ratanlal Dhirajlal
(edited by Justice G.P. Singh), referred to hereinabove, holds
good. Negligence becomes actionable on account of injury
resulting from the act or omission amounting to negligence
attributable to the person sued. The essential components of
negligence are three: “duty”, “breach” and “resulting
damage”.

(2) Negligence in the context of the medical profession
necessarily calls for a treatment with a difference. To infer
rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case
of occupational negligence is different from one of
professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the
part of a medical professional. So long as a doctor follows a
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practice acceptable to the medical profession of that day, he
cannot be held liable for negligence merely because a better
alternative course or method of treatment was also available
or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which
the accused followed. When it comes to the failure of taking
precautions, what has to be seen is whether those precautions
were taken which the ordinary experience of men has found
to be sufficient; a failure to use special or extraordinary
precautions which might have prevented the particular
happening cannot be the standard for judging the alleged
negligence. So also, the standard of care, while assessing the
practice as adopted, is judged in the light of knowledge
available at the time of the incident, and not at the date of
trial. Similarly, when the charge of negligence arises out of
failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it
is suggested it should have been used.

(3) A professional may be held liable for negligence on one
of the two findings: either he was not possessed of the
requisite skill which he professed to have possessed, or, he
did not exercise, with reasonable competence in the given
case, the skill which he did possess. The standard to be
applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent
person exercising ordinary skill in that profession. It is not
possible for every professional to possess the highest level
of expertise or skills in that branch which he practices. A
highly skilled professional may be possessed of better
qualities, but that cannot be made the basis or the yardstick
for judging the performance of the professional proceeded
against on indictment of negligence.

(4) The test for determining medical negligence as laid down
in Bolam case67 holds good in its applicability in India.
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(5) The jurisprudential concept of negligence differs in civil
and criminal law. What may be negligence in civil law may
not necessarily be negligence in criminal law. For
negligence to amount to an offence, the element of mens
rea must be shown to exist. For an act to amount to criminal
negligence, the degree of negligence should be much higher
i.e. gross or of a very high degree. Negligence which is
neither gross nor of a higher degree may provide a ground
for action in civil law but cannot form the basis for
prosecution.

(6) The word “gross” has not been used in Section 304-A
IPC, yet it is settled that in criminal law negligence or
recklessness, to be so held, must be of such a high degree as
to be “gross”. The expression “rash or negligent act” as
occurring in
Section 304-A IPC has to be read as qualified
by the word “grossly”.

(7) To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did
something or failed to do something which in the given facts
and circumstances no medical professional in his ordinary
senses and prudence would have done or failed to do. The
hazard taken by the accused doctor should be of such a
nature that the injury which resulted was most likely
imminent.”

56. Bolam’s67 case referred to in conclusion (4) was dealt with in

paragraph 20 of the decision as follows:-

“20. The water of Bolam67 test has ever since flown and
passed under several bridges, having been cited and dealt
with in several judicial pronouncements, one after the other
and has continued to be well received by every shore it has
touched as neat, clean and a well-condensed one. After a
review of various authorities Bingham, L.J. in his speech
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in Eckersley v. Binnie68 test in the following words: (Con
LR p. 79)
“From these general statements it follows
that a professional man should command the
corpus of knowledge which forms part of the
professional equipment of the ordinary member
of his profession. He should not lag behind other
ordinary assiduous and intelligent members of his
profession in the knowledge of new advances,
discoveries and developments in his field. He
should have such an awareness as an ordinarily
competent practitioner would have of the
deficiencies in his knowledge and the limitations
on his skill. He should be alert to the hazards and
risks in any professional task he undertakes to the
extent that other ordinarily competent members
of the profession would be alert. He must bring to
any professional task he undertakes no less
expertise, skill and care than other ordinarily
competent members of his profession would
bring, but need bring no more. The standard is
that of the reasonable average. The law does not
require of a professional man that he be a paragon
combining the qualities of polymath and
prophet.” (Charlesworth Percy, ibid., para
8.04)”

57. What the decision makes clear is that before a medical professional

is prosecuted for negligence in criminal law, some threshold requirements

ought to be satisfied, otherwise an unwarranted prosecution may not only

result in great prejudice to the concerned medical professional but would

also not instill a sense of confidence in the medical professionals for

discharging their duties. Considering Section 88 of the IPC3 falling in

68
(1988) 18 Con LR 1
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Chapter titled “General Exceptions” and various illustrations as stated

above, adequate protection was found necessary to be extended to medical

professionals, whereafter aforestated guidelines were issued by this Court.

58. The Constitution Bench of this Court in Lalita Kumari’s5 was

called upon to consider, inter alia, the effect of Section 154 of the IPC3.

One of the questions dealt with by the Constitution Bench was whether the

police would be required to make any preliminary inquiry before

registration of an FIR. Taking note of the decision of this Court in Jacob

Mathew4, this Court in Lalita Kumari’s5 case observed:

“Exceptions

115. Although, we, in unequivocal terms, hold that Section
154 of the Code postulates the mandatory registration of
FIRs on receipt of all cognizable offences, yet, there may be
instances where preliminary inquiry may be required owing
to the change in genesis and novelty of crimes with the
passage of time. One such instance is in the case of
allegations relating to medical negligence on the part of
doctors. It will be unfair and inequitable to prosecute a
medical professional only on the basis of the allegations in
the complaint.

116. In the context of medical negligence cases, in Jacob
Mathew4 , it was held by this Court as under : (SCC p. 35,
paras 51-52)

“51. We may not be understood as holding that
doctors can never be prosecuted for an offence of
which rashness or negligence is an essential
ingredient. All that we are doing is to emphasise
the need for care and caution in the interest of
society; for, the service which the medical
profession renders to human beings is probably
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95

the noblest of all, and hence there is a need for
protecting doctors from frivolous or unjust
prosecutions. Many a complainant prefer
recourse to criminal process as a tool for
pressurising the medical professional for
extracting uncalled for or unjust compensation.
Such malicious proceedings have to be guarded
against.

52. Statutory rules or executive instructions
incorporating certain guidelines need to be
framed and issued by the Government of India
and/or the State Governments in consultation
with the Medical Council of India. So long as it
is not done, we propose to lay down certain
guidelines for the future which should govern the
prosecution of doctors for offences of which
criminal rashness or criminal negligence is an
ingredient. A private complaint may not be
entertained unless the complainant has produced
prima facie evidence before the court in the form
of a credible opinion given by another competent
doctor to support the charge of rashness or
negligence on the part of the accused doctor. The
investigating officer should, before proceeding
against the doctor accused of rash or negligent act
or omission, obtain an independent and
competent medical opinion preferably from a
doctor in government service, qualified in that
branch of medical practice who can normally be
expected to give an impartial and unbiased
opinion applying the Bolam67 test to the facts
collected in the investigation. A doctor accused
of rashness or negligence, may not be arrested in
a routine manner (simply because a charge has
been levelled against him). Unless his arrest is
necessary for furthering the investigation or for
collecting evidence or unless the investigating
officer feels satisfied that the doctor proceeded
against would not make himself available to face
the prosecution unless arrested, the arrest may be
withheld.”
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117. In the context of offences relating to corruption, this
Court in
P. Sirajuddin v. State of Madras69, expressed the
need for a preliminary inquiry before proceeding against
public servants.

118. Similarly, in CBI v. Tapan Kumar Singh70, this Court
has validated a preliminary inquiry prior to registering an
FIR only on the ground that at the time the first information
is received, the same does not disclose a cognizable offence.

119. Therefore, in view of various counterclaims regarding
registration or non-registration, what is necessary is only that
the information given to the police must disclose the
commission of a cognizable offence. In such a situation,
registration of an FIR is mandatory. However, if no
cognizable offence is made out in the information given,
then the FIR need not be registered immediately and perhaps
the police can conduct a sort of preliminary verification or
inquiry for the limited purpose of ascertaining as to whether
a cognizable offence has been committed. But, if the
information given clearly mentions the commission of a
cognizable offence, there is no other option but to register an
FIR forthwith. Other considerations are not relevant at the
stage of registration of FIR, such as, whether the information
is falsely given, whether the information is genuine, whether
the information is credible, etc. These are the issues that have
to be verified during the investigation of the FIR. At the
stage of registration of FIR, what is to be seen is merely
whether the information given ex facie discloses the
commission of a cognizable offence. If, after investigation,
the information given is found to be false, there is always an
option to prosecute the complainant for filing a false FIR.”

Thereafter, directions were issued in paragraph 120 of the decision and

direction 120.6 was as under:

“Conclusion/Directions

120. In view of the aforesaid discussion, we hold:

69

(1970) 1 SCC 595 : 1970 SCC (Cri) 240
70
(2003) 6 SCC 175 : 2003 SCC (Cri) 1305
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….. ….. …..

120.6. As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of each
case. The category of cases in which preliminary
inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal
delay/laches in initiating criminal
prosecution, for example, over 3 months’
delay in reporting the matter without
satisfactorily explaining the reasons for
delay.

The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry.”

59. We may now notice the relevant observations in P. Sirajuddin, Etc.

vs. State of Madras, Etc.71, which were:-

“17. In our view the procedure adopted against the appellant
before the laying of the first information report though not
in terms forbidden by law, was so unprecedented and
outrageous as to shock one’s sense of justice and fairplay. No
doubt when allegations about dishonesty of a person of the
appellant’s rank were brought to the notice of the Chief
Minister it was his duty to direct as enquiry into the matter.

The Chief Minister in our view pursued the right course. The
High Court was not impressed by the allegation of the
appellant that the Chief Minister was moved to take an
initiative at the instance of person who was going to benefit
by the retirement of the appellant and who was said to be a
relation of the Chief Minister. The High Court rightly held
that the relationship between the said person and the Chief
Minister, if any, was so distant that it could not possibly have

71
(1970) 1 SCC 595
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98

influenced him and we are of the same view. Before a public
servant, whatever be his status, is publicly charged with acts
of dishonesty which amount to serious misdemeanour or
misconduct of the type alleged in this case and a first
information is lodged against him, there must be some
suitable preliminary enquiry into the allegations by a
responsible officer. The lodging of such a report against a
person, specially one who like the appellant occupied the top
position in a department, even if baseless, would do
incalculable harm not only to the officer in particular but to
the department he belonged to, in general. If the Government
had set up a Vigilance and Anti-Corruption Department as
was done in the State of Madras and the said department was
entrusted with enquiries of this kind, no exception can of
taken to an enquiry by officers of this department but any
such enquiry must proceed in a fair and reasonable manner.
The enquiring officer must not act under any preconceived
idea of guilt of the person whose conduct was being enquired
into or pursue the enquiry in such a manner as to lead to an
inference that he was bent upon securing the conviction of
the said person by adopting measures which are of doubtful
validity or sanction. The means adopted no less than the end
to be achieved must be impeccable. In ordinary departmental
proceedings against a Government servant charged with
delinquency, the normal practice before the issue of a
charge-sheet is for some one in authority to take down
statements of persons involved in the matter and to examine
documents which have a bearing on the issue involved. It is
only thereafter that a charge-sheet is submitted and a full-
scale enquiry is launched. When the enquiry is to be held for
the purpose of finding out whether criminal proceedings are
to be restored to the scope thereof must be limited to the
examination of persons who have knowledge of the affairs
of the delinquent officer and documents bearing on the same
to find out whether there is prima facie evidence of guilt of
the officer. Thereafter the ordinary law of the land must take
its course and further inquiry be proceeded with in terms
of
the Code of Criminal Procedure by lodging a first
information report.

….. ….. …..

21. In our view the enquiring officer pursued the
investigation with such zeal and vigour that he even enquired
into and took down statements as persons who were
supposed to have provided the appellant with articles of food
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worth trifling sums of money long before the launching of
the enquiry. The whole course of investigation as disclosed
in the affidavits is suggestive of some pre-determination of
the guilt of the appellant. The enquiring officer was a high-
ranking police officer and it is surprising that simply because
he was technically not exercising power under Chapter 14
of
the Criminal Procedure Code in that a formal first
information report had not been lodged he overlooked or
deliberately overstepped the limits of investigation
contained in the said chapter. He recorded self-incriminating
statements of a number of persons and not only secured their
signatures thereto obviously with the idea of pinning them
down to those but went to the length of providing certificates
of immunity to at least two of them from the evil effects of
their own misdeeds as recorded. It was said that the
certificates were given after the statements had been signed.
It is difficult to believe that the statements could have been
made before the grant of oral assurances regarding the issue
of written certificates. There can be very little doubt that the
persons who were given such immunity had made the
statements incriminating themselves and the appellant under
inducement, threat or promise as mentioned in
Section 24 of
the Indian Evidence Act.”

The statement in paragraph 17 certainly spoke of requirement of a

preliminary inquiry before a first information report is lodged against a

public servant.

60. Mr. Vikas Singh, learned Senior Advocate for the petitioner

strongly relied upon paragraph 120.6 of Lalita Kumari5 to submit that the

category of cases in which preliminary inquiry could possibly be insisted

upon were detailed by this Court but it was clearly stated that such

categorisation was only illustrative and not exhaustive of all conditions
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100

which may warrant preliminary enquiry. It was submitted that there was

strong similarity between the medical professionals and journalists and the

latter were also entitled to certain safeguards and protection; that journalists

would also discharge function of educating and altering the public in

general and as such they, as a class would also require similar protection.

On the other hand, Mr. S.V. Raju, learned Additional Solicitor

General relied upon two recent decisions in Union of India v. State of

Maharashtra and others72 and in Social Action Forum For Manav

Adhikar and another v. Union of India, Ministry of Law and Justice and

others73 of this Court rendered by Benches of three Judges where directions

similar to those issued in the case of Jacob Mathew4 were not accepted.

61. In Rajesh Sharma and others v. State of Uttar Pradesh and

another74 a Bench of two Judges of this Court (to which one of us, Lalit, J.

was a party) issued following directions in cases where the offence alleged

was one punishable under Section 498-A of the IPC3:-

“19. Thus, after careful consideration of the whole issue, we
consider it fit to give the following directions:

19.1 In every district one or more Family Welfare
Committees be constituted by the District Legal Services

72
(2020) 4 SCC 761
73
(2018) 10 SCC 443
74
(2018) 10 SCC 472
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101

Authorities preferably comprising of three members. The
constitution and working of such committees may be
reviewed from time to time and at least once in a year by the
District and Sessions Judge of the district who is also the
Chairman of the District Legal Services Authority.

19.2. The Committees may be constituted out of paralegal
volunteers/social workers/retired persons/wives of working
officers/other citizens who may be found suitable and
willing.

19.3. The Committee members will not be called as
witnesses.

19.4. Every complaint under Section 498-A received by the
police or the Magistrate be referred to and looked into by
such Committee. Such Committee may have interaction with
the parties personally or by means of telephone or any other
mode of communication including electronic
communication.

19.5. Report of such Committee be given to the authority by
whom the complaint is referred to it latest within one month
from the date of receipt of complaint.

19.6. The Committee may give its brief report about the
factual aspects and its opinion in the matter.

19.7. Till report of the Committee is received, no arrest
should normally be effected.

19.8. The report may be then considered by the investigating
officer or the Magistrate on its own merit.

19.9. Members of the Committee may be given such basic
minimum training as may be considered necessary by the
Legal Services Authority from time to time.

19.10. The members of the Committee may be given such
honorarium as may be considered viable.

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102

19.11. It will be open to the District and Sessions Judge to
utilise the cost fund wherever considered necessary and
proper.

19.12. Complaints under Section 498-A and other connected
offences may be investigated only by a designated
investigating officer of the area. Such designations may be
made within one month from today. Such designated officer
may be required to undergo training for such duration (not
less than one week) as may be considered appropriate. The
training may be completed within four months from today.

19.13 In cases where a settlement is reached, it will be open
to the District and Sessions Judge or any other senior judicial
officer nominated by him in the district to dispose of the
proceedings including closing of the criminal case if dispute
primarily relates to matrimonial discord.

19.14 If a bail application is filed with at least one clear day’s
notice to the Public Prosecutor/complainant, the same may
be decided as far as possible on the same day. Recovery of
disputed dowry items may not by itself be a ground for
denial of bail if maintenance or other rights of wife/minor
children can otherwise be protected. Needless to say that in
dealing with bail matters, individual roles, prima facie truth
of the allegations, requirement of further arrest/custody and
interest of justice must be carefully weighed.

19.15. In respect of persons ordinarily residing out of India
impounding of passports or issuance of red corner notice
should not be a routine.

19.16. It will be open to the District Judge or a designated
senior judicial officer nominated by the District Judge to
club all connected cases between the parties arising out of
matrimonial disputes so that a holistic view is taken by the
court to whom all such cases are entrusted.

19.17. Personal appearance of all family members and
particularly outstation members may not be required and the
trial court ought to grant exemption from personal
appearance or permit appearance by videoconferencing
without adversely affecting progress of the trial.
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103

19.18. These directions will not apply to the offences
involving tangible physical injuries or death.”

Direction No.19.4 had thus contemplated referral of every complaint

under Section 498A IPC3 to a Committee and it was only after the report of

the Committee, arrest if at all, could be effected. In terms of direction 19.12

it was directed that all complaints under Section 499A IPC3 be investigated

only by a Designated Investigating Officer of the area. While issuing these

directions, this Court had inter alia relied upon the decision in Arnesh

Kumar v. State of Bihar75 as well as the decision in Lalita Kumari7.

62. The correctness of the decision in Rajesh Sharma and others72

was questioned before a Bench of three Judges in Social Action Forum For

Manav Adhikar and another v. Union of India, Ministry of Law and

Justice and others76. This Court in paragraph 33 of its Judgment referred

to paragraph 120.6 of the decision in Lalita Kumari5 and thereafter made

following observations:-

“37. On a perusal of the aforesaid paragraphs, we find that
the Court has taken recourse to fair procedure and
workability of a provision so that there will be no unfairness
and unreasonableness in implementation and for the said
purpose, it has taken recourse to the path of interpretation.

The core issue is whether the Court in Rajesh

75
(2014) 8 SCC 273
76
(2018) 10 SCC 443
Writ Petition (Criminal) No.154 of 2020
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104

Sharma72 could, by the method of interpretation, have issued
such directions. On a perusal of the directions, we find that
the Court has directed constitution of the Family Welfare
Committees by the District Legal Services Authorities and
prescribed the duties of the Committees. The prescription of
duties of the Committees and further action therefor, as we
find, are beyond
the Code and the same does not really flow
from any provision
of the Code. There can be no denial that
there has to be just, fair and reasonable working of a
provision. The legislature in its wisdom has made the
offence under
Section 498-A IPC cognizable and non-
bailable. The fault lies with the investigating agency which
sometimes jumps into action without application of mind.
The directions issued in Arnesh Kumar73 are in consonance
with the provisions contained in
Section 41 CrPC and
Section 41-A CrPC. Similarly, the guidelines stated
in
Joginder Kumar v. State of U.P.77, and D.K. Basu v. State
of W.B.78, are within the framework
of the Code and the
power of superintendence of the authorities in the
hierarchical system of the investigating agency. The purpose
has been to see that the investigating agency does not abuse
the power and arrest people at its whim and fancy.

38. In Rajesh Sharma72, there is introduction of a third
agency which has nothing to do with
the Code and that apart,
the Committees have been empowered to suggest a report
failing which no arrest can be made. The directions to settle
a case after it is registered is not a correct expression of law.
A criminal proceeding which is not compoundable can be
quashed by the High Court under
Section 482 CrPC. When
settlement takes place, then both the parties can file a
petition under
Section 482 CrPC and the High Court,
considering the bona fide of the petition, may quash the
same. The power rests with the High Court. In this regard,
we may reproduce a passage from a three-Judge Bench
in
Gian Singh v. State of Punjab79, In the said case, it has
been held that:

“61. … Inherent power is of wide plenitude with no
statutory limitation but it has to be exercised in accord
with the guideline engrafted in such power viz.: (i) to
secure the ends of justice, or (ii) to prevent abuse of
77
(1994) 4 SCC 260
78
(1997) 1 SCC 416
79
(2012) 10 SCC 303
Writ Petition (Criminal) No.154 of 2020
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105

the process of any court. In what cases power to quash
the criminal proceeding or complaint or FIR may be
exercised where the offender and the victim have
settled their dispute would depend on the facts and
circumstances of each case and no category can be
prescribed. However, before exercise of such power,
the High Court must have due regard to the nature and
gravity of the crime. Heinous and serious offences of
mental depravity or offences like murder, rape,
dacoity, etc. cannot be fittingly quashed even though
the victim or victim’s family and the offender have
settled the dispute. Such offences are not private in
nature and have a serious impact on society.
Similarly, any compromise between the victim and
the offender in relation to the offences under special
statutes like the
Prevention of Corruption Act or the
offences committed by public servants while working
in that capacity, etc.; cannot provide for any basis for
quashing criminal proceedings involving such
offences. But the criminal cases having
overwhelmingly and predominatingly civil flavour
stand on a different footing for the purposes of
quashing, particularly the offences arising from
commercial, financial, mercantile, civil, partnership
or such like transactions or the offences arising out of
matrimony relating to dowry, etc. or the family
disputes where the wrong is basically private or
personal in nature and the parties have resolved their
entire dispute. In this category of cases, the High
Court may quash the criminal proceedings if in its
view, because of the compromise between the
offender and the victim, the possibility of conviction
is remote and bleak and continuation of the criminal
case would put the accused to great oppression and
prejudice and extreme injustice would be caused to
him by not quashing the criminal case despite full and
complete settlement and compromise with the
victim.”

39. Though Rajesh Sharma72 takes note of Gian Singh78, yet
it seems to have applied it in a different manner. The seminal
issue is whether these directions could have been issued by
the process of interpretation. This Court, in furtherance of a
fundamental right, has issued directions in the absence of
law in certain cases, namely, Lakshmi Kant Pandey v. Union
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106

of India80, Vishaka v. State of Rajasthan81 and Common
Cause v. Union of India82, and some others. In the obtaining
factual matrix, there are statutory provisions and judgments
in the field and, therefore, the directions pertaining to
constitution of a committee and conferment of power on the
said committee are erroneous. However, the directions
pertaining to Red Corner Notice, clubbing of cases and
postulating that recovery of disputed dowry items may not
by itself be a ground for denial of bail, would stand on a
different footing. They are protective in nature and do not
sound a discordant note with
the Code. When an application
for bail is entertained, proper conditions have to be imposed
but recovery of disputed dowry items may not by itself be a
ground while rejecting an application for grant of bail under
Section 498-A IPC. That cannot be considered at that stage.
Therefore, we do not find anything erroneous in Directions
19.14 and 19.15. So far as Directions 19.16 and 19.17 are
concerned, an application has to be filed either under
Section
205 CrPC or
Section 317 CrPC depending upon the stage at
which the exemption is sought.

….. ….. …..

42. In the aforesaid analysis, while declaring the directions
pertaining to Family Welfare Committee and its constitution
by the District Legal Services Authority and the power
conferred on the Committee is impermissible. Therefore, we
think it appropriate to direct that the investigating officers be
careful and be guided by the principles stated in Joginder
Kumar76, D.K. Basu77, Lalita Kumari5 and Arnesh Kumar73.
It will also be appropriate to direct the Director General of
Police of each State to ensure that the investigating officers
who are in charge of investigation of cases of offences under
Section 498-A IPC should be imparted rigorous training
with regard to the principles stated by this Court relating to
arrest.

43. In view of the aforesaid premises, the directions
contained in paras 19.1 to 19.11 as a whole are not in accord
with the statutory framework and the direction issued in para
19.12 shall be read in conjunction with the direction given
hereinabove.

80

(1984) 2 SCC 244
81
(1997) 6 SCC 241
82
(2018) 5 SCC 1
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107

44. Direction 19.13 is modified to the extent that if a
settlement is arrived at, the parties can approach the High
Court under
Section 482 of the Code of Criminal Procedure
and the High Court, keeping in view the law laid down
in Gian Singh78, shall dispose of the same.

45. As far as Directions 19.14, 19.15, 19.16 and 19.17 are
concerned, they shall be governed by what we have stated in
para 39.

46. With the aforesaid modifications in the directions issued
in Rajesh Sharma73, the writ petitions and criminal appeal
stand disposed of. There shall be no order as to costs.”

It was thus held that directions 19.1 to 19.11 were not in conformity

with the statutory framework, while directions 19.12 to 19.17 were suitably

modified.

63. A Bench of two Judges of this Court (to which one of us i.e. Lalit,

J. was a party) in its decision in Dr. Subhash Kashinath Mahajan v. State

of Maharashtra and another83 issued following directions in connection

with prosecutions instituted in relation to the offences punishable under the

provisions of the Scheduled Cases and Scheduled Tribes (Prevention of

Atrocities) Act, 1989; (the “Atrocities Act”, or “the 1989 Act”, for short):

“79. Our conclusions are as follows:

79.1. Proceedings in the present case are clear abuse of
process of court and are quashed.

83

(2018) 6 SCC 454
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108

79.2. There is no absolute bar against grant of anticipatory
bail in cases under the Atrocities Act if no prima facie case
is made out or where on judicial scrutiny the complaint is
found to be prima facie mala fide. We approve the view
taken and approach of the Gujarat High Court in
Pankaj D.
Suthar v. State of Gujarat84, and
N.T. Desai v. State of
Gujarat85, and clarify the judgments of this Court in
State of
M.P. v. Ram Kishna Balothia86, and
Manju Devi v. Onkarjit
Singh Ahluwalia87;

79.3. In view of acknowledged abuse of law of arrest in
cases under the Atrocities Act, arrest of a public servant can
only be after approval of the appointing authority and of a
non-public servant after approval by the SSP which may be
granted in appropriate cases if considered necessary for
reasons recorded. Such reasons must be scrutinised by the
Magistrate for permitting further detention.

79.4. To avoid false implication of an innocent, a
preliminary enquiry may be conducted by the DSP
concerned to find out whether the allegations make out a
case under the Atrocities Act and that the allegations are not
frivolous or motivated.

79.5. Any violation of Directions 79.3 and 79.4 will be
actionable by way of disciplinary action as well as contempt.

79.6. The above directions are prospective.”

During the course of its decision, the Bench had noticed paragraph

120.6 of the decision in Lalita Kumari5 as well as the decision in P.

Sirajuddin69. In terms of directions in paragraph 79.3 and 79.4, it was

84
(1992) 1 Guj LR 405
85
(1997) 2 Guj LR 942
86
(1995) 3 SCC 221 : 1995 SCC (Cri) 439
87
(2017) 13 SCC 439 : (2017) 4 SCC (Cri) 662
Writ Petition (Criminal) No.154 of 2020
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109

directed that an arrest of a public servant could be effected only after

approval of the appointing authority and that of a non-public servant could

be effected only after approval by the Special Superintendent of Police;

that the reasons for arrest could be scrutinised by the Magistrate for

permitting further detention; and that a preliminary enquiry be conducted

by the DSP concerned to find out whether the allegations making out a

case under the provisions of Atrocities Act were frivolous or motivated.

64. Union of India being aggrieved, filed Review Petition questioning

the correctness of the directions issued in Dr. Subhash Kashinath

Mahajan82. A Bench of three Judges of this Court considered the matter in

Union of India v. State of Maharashtra and others70. Various decisions

were noticed by this Court and it was concluded:

“In re : Sanction of the appointing authority

59. Concerning public servants, the provisions contained in
Section 197 CrPC provide protection by prohibiting
cognizance of the offence without the sanction of the
appointing authority and the provision cannot be applied at
the stage of the arrest. That would run against the spirit of
Section 197 CrPC. Section 41 CrPC authorises every police
officer to carry out an arrest in case of a cognizable offence
and the very definition of a cognizable offence in terms of
Section 2(c) CrPC is one for which police officer may arrest
without warrant.

60. In case any person apprehends that he may be arrested,
harassed and implicated falsely, he can approach the High
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110

Court for quashing the FIR under Section 482 as observed
in
State of Orissa v. Debendra Nath Padhi88.

61. While issuing guidelines mentioned above approval of
appointing authority has been made imperative for the arrest
of a public servant under the provisions of the Act in case,
he is an accused of having committed an offence under the
1989 Act. Permission of the appointing authority to arrest a
public servant is not at all statutorily envisaged; it is
encroaching on a field which is reserved for the legislature.
The direction amounts to a mandate having legislative
colour which is a field not earmarked for the courts.

62. The direction is discriminatory and would cause several
legal complications. On what basis the appointing authority
would grant permission to arrest a public servant? When the
investigation is not complete, how can it determine whether
public servant is to be arrested or not? Whether it would be
appropriate for appointing authority to look into case diary
in a case where its sanction for prosecution may not be
required in an offence which has not happened in the
discharge of official duty. Approaching appointing authority
for approval of arrest of a public servant in every case under
the 1989 Act is likely to consume sufficient time. The
appointing authority is not supposed to know the ground
realities of the offence that has been committed, and arrest
sometimes becomes necessary forthwith to ensure further
progress of the investigation itself. Often the investigation
cannot be completed without the arrest. There may not be
any material before the appointing authority for deciding the
question of approval. To decide whether a public servant
should be arrested or not is not a function of the appointing
authority, it is wholly extra-statutory. In case the appointing
authority holds that a public servant is not to be arrested and
declines approval, what would happen, as there is no
provision for grant of anticipatory bail. It would tantamount
to taking away functions of court. To decide whether an
accused is entitled to bail under
Section 438 in case no prima
facie case is made out or under
Section 439 is the function
of the Court. The direction of the appointing authority not to
arrest may create conflict with the provisions of the 1989 Act
and is without statutory basis.

88

(2005) 1 SCC 568 : 2005 SCC (Cri) 415
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111

63. By the guidelines issued, the anomalous situation may
crop up in several cases. In case the appointing authority
forms a view that as there is no prima facie case the
incumbent is not to be arrested, several complications may
arise. For the arrest of an offender, may be a public servant,
it is not the provision of the general law of
CrPC that
permission of the appointing authority is necessary. No such
statutory protection is provided to a public servant in the
matter of arrest under
IPC and CrPC as such it would be
discriminatory to impose such rider in the cases under the
1989 Act. Only in the case of discharge of official duties,
some offence appears to have been committed, in that case,
sanction to prosecute may be required and not otherwise. In
case the act is outside the purview of the official discharge
of duty, no such sanction is required.

64. The appointing authority cannot sit over an FIR in case
of cognizable, non-bailable offence and investigation made
by the police officer; this function cannot be conferred upon
the appointing authority as it is not envisaged either in
CrPC
or the 1989 Act. Thus, this rider cannot be imposed in
respect of the cases under the 1989 Act, may be that
provisions of the Act are sometimes misused, exercise of
power of approval of arrest by the appointing authority is
wholly impermissible, impractical besides it encroaches
upon the field reserved for the legislature and is repugnant
to the provisions of general law as no such rider is envisaged
under the general law.

65. Assuming it is permissible to obtain the permission of
the appointing authority to arrest the accused, would be
further worsening the position of the members of the
Scheduled Castes and Scheduled Tribes. If they are not to be
given special protection, they are not to be further put in a
disadvantageous position. The implementation of the
condition may discourage and desist them even to approach
the police and would cast a shadow of doubt on all members
of the Scheduled Castes and Scheduled Tribes which cannot
be said to be constitutionally envisaged. Other castes can
misuse the provisions of law; also, it cannot be said that
misuse of law takes place by the provisions of the 1989 Act.
In case the direction is permitted to prevail, days are not far
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112

away when writ petition may have to be filed to direct the
appointing authority to consider whether the accused can be
arrested or not and as to the reasons recorded by the
appointing authority to permit or deny the arrest. It is not the
function of the appointing authority to intermeddle with a
criminal investigation. If at the threshold, approval of the
appointing authority is made necessary for arrest, the very
purpose of the Act is likely to be frustrated. Various
complications may arise. Investigation cannot be completed
within the specified time, nor trial can be completed as
envisaged. The 1989 Act delay would be adding to the
further plight of the downtrodden class.

In re : Approval of arrest by the SSP in the case of a non-
public servant

66. Inter alia for the reasons as mentioned earlier, we are of
the considered opinion that requiring the approval of SSP
before an arrest is not warranted in such a case as that would
be discriminatory and against the protective discrimination
envisaged under the Act. Apart from that, no such guidelines
can prevail, which are legislative. When there is no provision
for anticipatory bail, obviously arrest has to be made.
Without doubting bona fides of any officer, it cannot be left
at the sweet discretion of the incumbent howsoever high.
The approval would mean that it can also be ordered that the
person is not to be arrested then how the investigation can be
completed when the arrest of an incumbent, is necessary, is
not understandable. For an arrest of the accused such a
condition of approval of SSP could not have been made a
sine qua non, it may delay the matter in the cases under the
1989 Act.

In re : Requiring the Magistrate to scrutinise the reasons
for permitting further detention

67. As per the guidelines issued by this Court, the public
servant can be arrested after approval by the appointing
authority and that of a non-public servant after the approval
of SSP. The reasons so recorded have to be considered by
the Magistrate for permitting further detention. In case of
approval has not been granted, this exercise has not been
undertaken. When the offence is registered under the 1989
Act, the law should take its course no additional fetters are
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113

called for on arrest whether in case of a public servant or
non-public servant. Even otherwise, as we have not
approved the approval of arrest by appointing authority/SSP,
the direction to record reasons and scrutiny by the Magistrate
consequently stands nullified.

68. The direction has also been issued that the DSP should
conduct a preliminary inquiry to find out whether the
allegations make out a case under the Atrocities Act, and that
the allegations are not frivolous or motivated. In case a
cognizable offence is made out, the FIR has to be outrightly
registered, and no preliminary inquiry has to be made as held
in Lalita Kumari5 by a Constitution Bench. There is no such
provision in
the Code of Criminal Procedure for preliminary
inquiry or under the SC/
ST Act, as such direction is
impermissible. Moreover, it is ordered to be conducted by
the person of the rank of DSP. The number of DSP as per
stand of the Union of India required for such an exercise of
preliminary inquiry is not available. The direction would
mean that even if a complaint made out a cognizable offence,
an FIR would not be registered until the preliminary inquiry
is held. In case a preliminary inquiry concludes that
allegations are false or motivated, FIR is not to be registered,
in such a case how a final report has to be filed in the Court.
Direction 79.4 cannot survive for the other reasons as it puts
the members of the Scheduled Castes and Scheduled Tribes
in a disadvantageous position in the matter of procedure vis-
à-vis to the complaints lodged by members of upper caste,
for later no such preliminary investigation is necessary, in
that view of the matter it should not be necessary to hold
preliminary inquiry for registering an offence under the
Atrocities Act, 1989.

70. We do not doubt that directions encroach upon the field
reserved for the legislature and against the concept of
protective discrimination in favour of downtrodden classes
under
Article 15(4) of the Constitution and also
impermissible within the parameters laid down by this Court
for exercise of powers under
Article 142 of the Constitution
of India. Resultantly, we are of the considered opinion that
Directions 79.3 and 79.4 issued by this Court deserve to be
and are hereby recalled and consequently we hold that
Direction 79.5, also vanishes. The review petitions are
allowed to the extent mentioned above.”
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114

Paragraph 68 of this decision clearly held that the direction to hold a

preliminary inquiry issued in Dr. Subhash Kashinath Mahajan82 was not

consistent with the statutory framework while it was held in paragraph 70

that the directions issued by the two Judge Bench amounted to

encroachment upon the field reserved for the legislature.

65. The submissions regarding the second prayer in the Writ Petition

are required to be considered in the backdrop of these decisions.

66. In Jacob Mathew4, the guidelines were issued after noticing Section

88 of the IPC3 falling in Chapter titled “General Exceptions” as well as

illustrations below Sections 88, 92, and 93 of the IPC3. The direction, “a

private complaint may not be entertained unless the complainant has

produced prima facie evidence before the Court in the form of a credible

opinion given by another competent doctor to support the charge of

rashness and negligence on the part of the accused doctor” was founded on

reasons including the status of a medical professional acknowledged by

Section 88 and illustrations as stated above as well as the fact that the

investigating officers and the private complainant would not be supposed

to be having knowledge about medical science so as to determine whether

the act of the accused professional amounted to a rash and negligent act
Writ Petition (Criminal) No.154 of 2020
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115

within the domain of criminal law. It is true that the decision in P.

Sirajuddin69 did observe that there ought to be a preliminary inquiry before

a first information report is registered against a public servant of any status.

But today, with the establishment of Vigilance Cells in every Governmental

Department or organisation, the preliminary inquiries are not strictly

traceable to the direction issued by this Court. As a matter of fact, the

accepted norm – be it in the form of CBI Manual or like instruments is to

insist on a preliminary inquiry. One can also say that the protection to a

public servant is the underlying principle under certain provisions like

Section 197 of the Code and as such there is some foundation in statutory

provisions.

On the other hand, directions (19.1 to 19.11) issued in Rajesh

Sharma73, were not found to be in accord with the statutory framework and

as such did not meet with the approval of the decision of the larger bench

of this Court. Similarly, the directions issued in Dr. Subhash Kashinath

Mahajan82 regarding holding of a preliminary inquiry were not found

consistent with the statutory framework. The second prayer made in the

Writ Petition is asking for the constitution of the Committee completely

outside the scope of the statutory framework. Similar such exercise of

directing constitution of a Committee was found inconsistent with the
Writ Petition (Criminal) No.154 of 2020
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116

statutory framework in the decisions discussed above. We are conscious

that the directions issued in Jacob Mathew4 had received approval by a

Constitution Bench in Lalita Kumari5, but those guidelines issued in Jacob

Mathew4 stand on parameter which are completely distinguishable from the

subsequent decisions of three Judge Bench of this Court in Union of India

vs. State of Maharashtra and Others70 and in Social Action Forum for

manav Adhikar and Another vs. Union of India, Ministry of Law and

Justice and Others71. Any relief granted in terms of second prayer would

certainly, in our view, amount to encroachment upon the field reserved for

the legislature. We have, therefore, no hesitation in rejecting the prayer and

dismissing the Writ Petition to that extent.

67. It must however be clarified that every Journalist will be entitled to

protection in terms of Kedar Nath Singh2, as every prosecution under

Sections 124A and 505 of the IPC3 must be in strict conformity with the

scope and ambit of said Sections as explained in, and completely in tune

with the law laid down in Kedar Nath Singh2.

68. In conclusion:

i. We quash FIR No.0053 dated 6.5.2020, registered at Police Station

Kumarsain, Distt. Shimla, Himachal Pradesh, against the petitioner;
Writ Petition (Criminal) No.154 of 2020
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117

ii. but reject the prayer that no FIR be registered against a person

belonging to media with at least 10 years of standing unless cleared

by the Committee as suggested.

69. Writ Petition is allowed to the aforesaid extent.

….……………………….J.

[UDAY UMESH LALIT]

….……………………….J.

[VINEET SARAN]
NEW DELHI;

JUNE 03, 2021.

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We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

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