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Kali Charan Mohapatra Vs. Srinivas Sahu - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Criminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 82 of 1959
Reported inAIR1960Ori65; 1960CriLJ497
ActsIndian Penal Code (IPC), 1860 - Sections 505; Constitution of India - Article 19(1) and 19(2)
AppellantKali Charan Mohapatra
RespondentSrinivas Sahu
Advocates:G.K. Misra, ;S.C. Mohapatra and ;S.K. Misra, Advs.
Cases ReferredShib Nath Banerjee v. Emperor
.....section 505 - pamphlet alleged to amount to incitement of offence - held, intention of author of pamphlet was to draw attention of public to omissions by authorities in certain administrative matters - no incitement as contemplated under section 505 - falls within exception 1 of section 505 as there was reasonable ground for author to believe allegations to be true - hence, immunity from prosecution granted - revision petition for quashing criminal proceedings under section 505 allowed. - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes..........and some other persons. 2. on 5-5-58 one srinivas sahu who is said to be the sarbarakar of talcher town filed a complaint before the sub-divisional magistrate againstone sri dibakar misra alleging that the latter had distributed copies of a printed pamphlet at various places in talcher town on 13-4-1958 with the intention of inciting the general public of talcher town against the government officials stationed at that place and against some of the political parties and also some lawyers. the sub-divisional magistrate, after examining the complainant on solemn affirmation, summoned the said dibakar misra, under section 505 i. p. c. the case proceeded against the said dibakar misra in due course and srinivas sahu was also examined as p. w. 1 on 10-10-1958. the original manuscript.....

R.L. Narasimham, C.J.

1. This is a revision for quashing a criminal proceeding under Section 505 I. P. C. initiated by the Sub-divisional Magistrate of Talcher against the petitioner and some other persons.

2. On 5-5-58 one Srinivas Sahu who is said to be the Sarbarakar of Talcher Town filed a complaint before the Sub-divisional Magistrate againstone Sri Dibakar Misra alleging that the latter had distributed copies of a printed pamphlet at various places in Talcher town on 13-4-1958 with the intention of inciting the general public of Talcher Town against the Government Officials stationed at that place and against some of the political parties and also some lawyers. The Sub-Divisional Magistrate, after examining the complainant on solemn affirmation, summoned the said Dibakar Misra, under Section 505 I. P. C. The case proceeded against the said Dibakar Misra in due course and Srinivas Sahu was also examined as P. W. 1 on 10-10-1958.

The original manuscript from which the pamphlet was printed was also proved before the court as Ext. 4 and, on seeing the same the learned Magistrate found that Sachidananda Das and one Kalicharan Mohapatra were signatories to the pamphlet. He therefore, directed the issue of summons on those two persons also under Section 505 I, P. C. Kalicharan Mohapatra challenged the legality of the proceeding, but neither Dibakar Misra nor Sachidananda Das cared to join in this revision petition. But I called for the records of the case and perused the same and am satisfied that the initiation of a criminal proceeding against all these persons for an offence under Section 505 I. P. C. is misconceived and should be quashed.

3. An English translation of the offending pamphlet is given below:

'An Appeal to the Brothers and Sisters of Talcher Town.'

'At present the local officials are carrying an autocratic ride in Talcher Town on the pattern of despotic regime. The situation is such that nobody can dare to raise his voice against it. Some political parties are lending support to this action of the officials and are thus putting the knife on the necks of the residents of Talcher Town. In order to stabilise the mis-deeds of the Ruling Officials some legal officers have joined hands with the intelligent businessmen and with their support are influencing the officials to perpetuate the misrule.

It is for this act that the construction of big roads and ferry ghats have been stopped. In case of objection, assurance is being given that the works will be constructed.

Previously, the roads used by the officials as also the market places were being drenched with water, carried on the head, just to please the officials. Even now the roads are being drenched in the same process in spite of purchase of water carriages. In the roads or Patna, no water is being thrown even if they are dusty and they have become the cause of diseases. In case of complaint it was told previously that the streets would b' watered after the purchase of water carriages. This is not all. In Patna and other places tho debris from dust-bins is being removed after the same gets decomposed.

The construction of the roof of the slaughter house is not being completed and the same is not being put to use.

Last month the Harijan Bastee in the town and six houses fa Kamarasala Sahi were burnt down by fire and these families are troubled in the hot sun but no help being rendered to these families.

The people are being intentionally kept in the dark. Besides house tax, other new taxes are being levied. But, apart from this, the introduction of many new taxes is also under contemplation.

There is no provision for protection of public health. Although the town is at present infested with fever and other contagious diseases, and mos-quittoes are giving trouble; there is no spraying of D. D. T. nor any other preventive measure. Even though there is acute scarcity of wat(sic) no atten-tion is being paid for making provision for supply of pipe water or to reexcavate the wells.

Although it has been notified by Govt. that the Notified Area Council will be the owner or the hats, the hats have been auctioned out on lesser amounts in order to over-burden the tax-payers. In spite of this, the Hat dandidars (auction purchasers) are realising higher rates of tax.

In such, circumstances we consider it proper to alert the town dwellers of Talcher and request them to attend the General meeting to be held at 5 P. M. on Monday at Mid Patna Deula compound.'

4. A fair reading of the pamphlet would show that the primary intention of its authors was to draw the pointed attention of the public to certain important omissions in the administration, of Talcher Town which required immediate redress. Thus, there is a reference to the stoppage of construction of big roads and ferry ghats, the failure to water streets so as to keep down the dust, the delay in removing debris from dust-bins, the omission to complete the roof of the slaughter house, the omission to give timely aid to the occupants of the Harijan bustee which, was burnt down, the omission to spray D, D. T. in the Town with a view to eradicate the mosauitto menace, the omission to provide adequate drinking water for the people and similar matters. The public were requested to attend a general meeting to be held at a specified time at a particular place. Doubtless, in the first paragraph of the pamphlet there is mention of the autocratic rule of the officials of Talcher with the help of some political parties.

5. Clauses (a) and (b) of Section 505 I. P. C. have obviously no application. The Magistrate issued summons presumably under Clause (c) of that Section. That Clause (omitting immaterial portions) penalises the publication or circulation of any statement with intent to incite or which is likely to incite any class of community of persons to commit any offence against any other class or community. Long before the commencement of the Constitution in Shib Nath Banerjee v. Emperor, 40 Cal WN 1218, it was pointed out that this section deals with the liberty of the subject and must be construed very strictly in favour of the defence.

This principle applies with greater force now because the right of freedom of speech and expression has been made one of the Fundamental Rights guaranteed under Article 19(1)(a) of the Constitution. In a democratic set up a citizen has a right subject to certain restrictions to point out, either by means of a pamphlet or by holding public meetings, what he considers to be the various instances of acts of commission and omission on the part of the officials of a particular place in consequence of which the public of that place are suffering. The exception to Section 505 I. P. C. grants him immunity from prosecution if he had reasonable grounds for believing these allegations to be true and if he did not have the necessary intention as required by that Section. In the Constitution also, the only restriction placed on the exercise of this fundamental right is that imposed by Clause (2) of Article 19.

By virtue of this clause any 'existing law' (which includes the Indian Penal Code) which imposes reasonable restrictions on the exercise of this right in relation to contempt of Court, defamation or 'incitement to commit an offence' is saved from the operation of Clause (1) of Article 19. Hence, if Section 505 I. P C. is harmoniously construed with Clause (2) of Article 19, it seems clear that unless the contents of the pamphlet amount to 'incitement to an offence' the persons who have published andcirculated the same cannot be held guilty of offence Iunder Section 505 I. P. C.

6. In my opinion the pamphlet will not have the effect of inciting the commission of an offence. Specific instances of alleged omissions on the part of the officials of Talcher to look after the general interests of the public of that Town have been mentioned. If these allegations are untrue, it was always open to the authorities to refute the same in an appropriate manner. But the legitimate ventilation of grievance which some sections of the public may have against the local authorities should not be checked by initiating a prosecution under Section 505 I. P. C.

The petitioner has filed, along with his revisions petition, copies of letters addressed to various officials including the Sub-divisional Magistrate oi Talcher, the Chief Minister of Orissa and the District Magistrate of Dhenkanal. inviting their attention to some of the grievances of the general public of Talcher Town. This shows that the intention was mainly to focus the attention of the higher officials on these grievances with a view to get them redressed.

7. The revision petition is allowed and the entire proceeding before the Sub-divisional Magistrate of Talcher in Case No. 46-C-1/65 T.R. of 1958 is quashed not only against the petitioner, but also against the other persons, namely Dibakar Misra and Sachidananda Das.

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