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Jagamohan Sahu and anr. Etc. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in42(1976)CLT1206; 1977CriLJ1394
AppellantJagamohan Sahu and anr. Etc.
RespondentState of Orissa
Excerpt:
.....1996 (2) glt 246, are not good law]. - in the speeches the petitioners also asked or incited the police force to fight against government like the police personnel of koraput and of uttar pradesh. this contention appears to be well founded. use of isolated passages of strong expressions here and there should not be given undue importance if the tenor of the entire speech shows that the speaker did not really mean that the isolated passages or words be understood in the literal sense. 8. hence it is argued that unless the entire text of the speech is before the court, it is not possible for it to know in what context the words and phrases complained of have been actually used by the speaker. 9. now coming to the speech of petitioner bhagabau sahu it appears that he has simply endorsed..........employees who had resorted to strike. in the speeches the petitioners also asked or incited the police force to fight against government like the police personnel of koraput and of uttar pradesh. these speeches were, therefore, in direct violation of the conditions imposed in the permission granted for the meeting and by delivering speeches to the above effect the petitioners committed prejudicial acts within the meaning of the defence and internal security of india rules. the petitioners thus, while delivering the speeches, formed an unlawful assembly. the authorities, therefore, ordered the petitioners to dissolve the meeting which order was not complied with,on these allegations the inspeetor-in-charge of the berhampur town police station drew up a plain paper f. i. r. and directed.....
Judgment:
ORDER

B.K. Roy, J.

1. The petitioners in these two revisions along with one Alii Kishore Patnaik were tried in G. R. Case No. 356 of 1974 by Shri P. Kar, Judicial Magistrate, 1st Class, Berhampur for offences under Rule 43(5) of the Defence and Internal Security of India Rules (hereinafter called the 'Rules'), Under Sections 145, 151, 224 and 332, Indian Penal Code and Under Section 32 of the Police Act. The trial Court found all the accused persons guilty under Rule 43(5) of the Rules, Under Sections 145 and 151, Indian Penal Code and Under Section 32 of the Police Act, convicted them thereunder and sentenced each of them to pay a fine of Rs. 50/-, in default to simple imprisonment for ten days for each of the offences under Rule 43(5) of the Rules, Under Section 145, Indian Penal Code and Under Section 32 of the Police Act. No separate sentence was passed for the offence Under Section 151, Indian Penal Code. All tfie accused persons were, however, acquitted of the charges Under Sections 224 and 332, Indian Penal Code. All the accused persons preferred Criminal Appeal No. 246 of 1974 against their order of conviction and sentence passed by the trial Court before the Sessions Judge, Ganjam, The learned Sessions Judge maintained the order of conviction and sentence passed against all the accused persons under Rule 43(5) of the Rules and Under Section 145, Indian Penal Code and acquitted them of the charges Under Section 151, Indian Penal Code and Under Section 32 of the Police Act. Against this appellate order of the learned Sessions Judge Jagamohan Sahu and Ram Chandra Naik have preferred Criminal Revision No. 233 of 1975 and Bhagaban Sahu, Sudhansu Sekhar Panda and Bidyadhar Jena have preferred Criminal Revision No. 298 of 1975. In Criminal Revision No. 298 of 1975 a notice of enhancement has been issued against the petitioners calling upon them to show cause as to why the sentence of fine shall not be enhanced to sentence of rigorous imprisonment for three months for each of the offences for which they have been held guilty. As both the revisions have arisen out of one trial, as the evidence is common in both the cases and as the points involved in both of them are the same, the two revisions have been heard together. This judgment will therefore govern both of them.

2. The case of the prosecution may briefly be stated thus : Petitioner Ram Chandra Naik made an application (Ex. 18) to the local police at Berhampur for permission to hold a meeting at the park near Ramalingam tank in Berhampur town to discuss matters relating to the arrests of Abhir Padhi and Y. L. Sitaramayya, President and Vice-President respectively of the Trade Union. The Inspector-in-charge of the Berhampur Town Police Station granted the required permission, subject to the condition that no other matter, except those relating to arrests, would be discussed at the meeting. In pursuance to the permission thus granted a meeting was held at the appointed place at 6-30 p. m. on 10-5-1974. Petitioner Jagamohan Sahu presided over the meeting. In the coure of speeches delivered at the meeting the petitioners appealed to the general public and the Government servants to support the action of the railway employees who had resorted to strike. In the speeches the petitioners also asked or incited the police force to fight against Government like the police personnel of Koraput and of Uttar Pradesh. These speeches were, therefore, in direct violation of the conditions imposed in the permission granted for the meeting and by delivering speeches to the above effect the petitioners committed prejudicial acts within the meaning of the Defence and Internal Security of India Rules. The petitioners thus, while delivering the speeches, formed an unlawful assembly. The authorities, therefore, ordered the petitioners to dissolve the meeting which order was not complied with,

On these allegations the Inspeetor-in-charge of the Berhampur Town Police station drew up a plain paper F. I. R. and directed the Sub-Inspector of Police (P. W. 8) to take up investigation. After investigation the petitioners were charger-sheeted Under Sections 143, 145, 151, 224 and 332, Indian Penal Code, Under Section 32 of the Police Act and under Rule 43(5) of the Rules. They were tried, convicted and sentenced as indicated above and hence the two revisions.

3. The plea of the petitioners during trial was one of complete denial.

4. In support of the prosecution as many as 9 witnesses have been examined and on behalf of the defence only 1 who says that the meeting held was lawful one ; that there was no unlawful assembly and that none of the speakers in the meeting incited anybody as alleged by the prosecution.

5. Of the 9 prosecution witnesses examined, the evidence of P. Ws. 1, 2, 4 and 7 only appears to be directly material on which the prosecution relies in support of its case. These witnesses claim themselves to be occurrence witnesses.

6. I shall take up the charge under Rule 43(5) of the Rules, The charge against the petitioners under this rule reads as follows :

That you on or about the 10th day of May, 1974 at 8.30 p. m. near Ramalingam tank road caused disaffection amongst public servants and interfered with the discipline of public servants by delivering speeches and thereby committed an offence punishable under Rule 43(5) of the Defence and Internal Security of India Rules within my cognizance.

Rule 43(1)(a) of the Rules provides thus :

No person shall, without lawful authority or excuse, do any prejudicial act.

The penal provision in the Rules as contained in Rule 43(5) prescribes punishment of imprisonment upto five years or fine or both for a person who contravenes Rule 48(1)(a). In the present case, it is conceded by the learned Standing Counsel that the petitioners committed prejudicial act as defined in Rule 36(6) (b) of the Rules as appears from the charges framed against them. The learned Sessions Judge, therefore, is wrong in bringing the case against the petitioners under Rule 36(6)(c) which says that 'prejudicial act' means an act which is intended or is likely to bring into hatred or contempt, or to excite disaffection towards the Government established by law in India. This contention appears to be well founded. A reading of the charge does not show that the petitioners were asked to meet a case as contemplated in Rule 36(6)(c) of the Rules. So, it is not necessary to examine if a case under Rule 36(6)(c) of the Rules has been made out against them,

7. The main question for consideration is whether any one of the petitioners by delivering speech attributed to him has caused disaffection among the public servants or interfered with their discipline. The expression 'disaffection' means disloyalty and feelings of enmity. In the present democratic set-up anything and everything spoken against Government or in relation to the public servants does not amount to causing disaffection. But that does not give liberty to a citizen to behave in a fashion which results in creating a feeling of disloyalty either towards Government or amongst the public servants or in inciting a sense of indiscipline in the public servants. A citizen and Government even in a democratic set up have to conduct themselves in a spirit of partnership recognising that there is no war between the two and they are engaged in a vital national enterprise affecting the future of the nation. In a democratic country criticism of Governmental measures is inevitable. Such criticism is made to enlist a popular support. A speech, therefore, should be read as a whole in a free, fair and liberal spirit and the general effect of the speech read as a whole is to be considered. Use of isolated passages of strong expressions here and there should not be given undue importance if the tenor of the entire speech shows that the speaker did not really mean that the isolated passages or words be understood in the literal sense. The speeches delivered in the present case have therefore to be considered from this point of view. In considering the effect of the speeches one must not forget that sometimes words and phrases are used in metaphorical sense. Take for example, the words 'Ladhai' which means 'fight' and the word 'Sangram' which means 'battle'. Sometimes these words may be used by a speaker in their real sense meaning an actual physical fight or an actual battle and sometimes they may be used in metaphorical sense. Therefore, by reading the entire speech the true intention of the speaker is to be gathered Very often it is said that an Advocate is fighting for his client in a Court ; that a doctor is fighting for the life of his patient and that a legislator is fighting a bill introduced by Government in the legislature clause by clause. The use of the word 'fight' in these cases cannot be understood to be a physical conflict. The word 'fight' very often means opposition. The word 'enemy' is also very often used in a similar sense. Therefore, from the mere use of these words in a speech one should not conclude that the speaker necessarily intends to inculcate a feeling of enmity or really means a bloody warfare.

8. The use of the word 'Sangram' meaning 'battle' in the passage in Ex. 8 in which the petitioner Ram Chandra Naik has specially asked the police force to join the battle can never mean that a call was given to the police force to raise a warfare in the true sense of the term against Government. If really by use of the word 'Sangram' the speaker meant a real fight, then certainly the act on the part of Shri Naik must be held to be act causing disaffection amongst the public servants and interfering with their discipline. But reading the passage in the context of the preceding paragraphs of the speech as mentioned in Ext. 8 it would not be proper to say that petitioner Naik intended the police force to raise a real battle against Government. The main purport of the speech seems to be that there has been a general rise in price in the country. This has affected not only the railway people who have struck work, but also people of other classes including the men belonging to the police force. The struggle which the railway people have begun must therefore be taken to be one for all people, and so, all the people in the country including cultivators, students, workers, and even police personnel must see that the struggle is brought to a successful conclusion. This seems to be the real purpose of the whole speech. While saying all these, I do not take into consideration the last portion of the speech of petitioner Naik where he has asked the police to behave in the way in which the police personnel of U. P. and of the district of Koraput did to shake Government. I shall deal with this portion of the speech in a later paragraph. The rest of the speech of petitioner Naik, according to me, therefore does not constitute a prejudicial act as defined in Rule 36(6)(b) of the Rules, At this stage, an argument has been advanced by the learned Counsel for the petitioners that admittedly Ex. 8 contains the substanee of the speeches delivered by different speakers including petitioner Naik. In view of the time taken by an individual speaker for his speech as noted in Ex. 8 it is contended that the speech attributed to petitioner Naik as menioned in Ex. 8 is only a portion of the entire speech. It is therefore said that a major portion of the speech has been omitted in Ext. 8. Hence it is argued that unless the entire text of the speech is before the Court, it is not possible for it to know in what context the words and phrases complained of have been actually used by the speaker. Though this contention as a general rule appears to be a sound one it can be of no assistance to the prosecution in the present case, so far as petitioner Naik is concerned. There might be a case where in the absence of the entire speech it is not possible to know in what sense any particular word or phrase has been used therein. But so far as the speech attributed to petitioner Naik as appears in Ext. 8 is concerned, there can be no such difficulty. I have myself read the speech of petitioner Naik as recorded in Ex. 8. P. W. 2, no doubt, has said that he has recorded only the substance. But reading the speech one has no doubt about what petitioner Naik meant to say in his address. As regards the speech of petitioner Naik excluding the portion addressed to the police personnel with which I shall deal later, it only appears to be a call to support the railway strike. By this speech petitioner Naik meant to raise war against Government and to spread disloyalty amongst public servants. I do not therefore agree with the Courts below that by delivering the speech excluding the portion referred to above petitioner Naik did any prejudicial act. The observation of the lower appellate Court that by the use of the words 'Ladhai' and 'Sangram' petitioner Naik was advocating a war against Government and was inciting the public servants with that end in view and was trying to start a rebellion or revolution with a view to crush Indira Government seems to be too far fetched and is not relevant to the charge framed against petitioner Naik. The words 'Ladhai' and 'Sangrama' which are said to have been used by petitioner Naik are the language current in political controversies in these days and the use of such words cannot ordinarily make the foundation for a charge of causing disaffection amongst public servants and interference with their discipline. The words used are merely evidence of intention, but the real intention is the test. The intention of the speaker has to be judged not from the use of any word or phrase in a particular part of the speech, but from the speech taken as a whole. Judged by this test it cannot be said that the words used in the speech of petitioner Naik, except the portion meant for police personnel to be dealt later, constitute a prejudicial act as defined in Rule 36(6)(b) of the Rules.

9. Now coming to the speech of petitioner Bhagabau Sahu it appears that he has simply endorsed what has been said by petitioner Naik. Petitioner Bhagaban as appears from Ex. 8 has particularly asked the police personnel to do as advised by petitioner Naik. This would mean that petitioner Bhagaban has asked the police force to behave in the same manner as the police did in U. P. and in the district of Koraput to shake Government. For this portion of the speech petitioner Bhagaban stands on the same footing as petitioner Naik. For the reasons given by me while discussing the case of Naik petitioner Bhagaban must be held not guilty of the charge, except of the portion where he asked the police force to behave in the manner in which the police force of U. P. and of Koraput did.

10. Petitioner Bidyadhar Jena appears to have only given a call in his speech to the people at large to join the battle against the price rise. He has also said that the oppression of Indira Government will not last long and the repression through police help which is going on in the country is a slur in a democratic Government. Judged in the same standrad as laid down above, petitioner Bidyadhar cannot be said to have done any prejudicial act.

11. Petitioner Sudhansu Sekhar Panda has only said that the strike of the railway people is a fight not confined to the railway people but is one involving all. The speaker in his speech has asked the people to support the fight in order to make it a success. This speech also judged in the above standard in which the case of petitioner Naik has been judged does not bring home the charge framed against petitioner Sudhansu.

12. Lastly coming to the case of petitioner Jagamoban Sahu who is said to have presided over the meeting as President it appears from Ex. 8 that he has only appealed to all sections of people in the country including the police to support the railway strike in order to make it a success. It has already been noticed above that the strike was only a protest against the rise in price in the country. Hence by no stretch of imagination it could be said that petitioner Jagamohan Sahu by delivering the speech intended to cause disaffection amongst the public servants or to interfere with their discipline. To support the movement of the railway people does not always mean an active participation in the movement. So, it is not possible to deduce from the speech of Jagamohan that he by his speech incited the police to be disloyal to Government or meant to interfere with the discipline of the police personnel.

13. I shall now take up that portion of the speech of petitioner Ram Chandra Naik which has been endorsed fully by petitioner Bhagaban in which the police personnel have been asked to behave in the same fashion as the police force did in U. P. and in the district of Koraput. In this portion of the speech petitioner Naik is said to have asked the police to shake Government as was done by the police force in U. P. and in the district of Koraput. This portion of the speech is quite distinct from the earlier portion of the speech of petitioner Naik. The portion specifically meant for the police force has, therefore, to be dealt separately, P. W. 1, while deposing about the contents of the different speeches has said that they (all the speakers) also appealed to the police officers to join the agitation as the constables of Koraput and of U. P. had done. The evidence of this witness further discloses that he who was himself a police officer felt excited after hearing the speeches. This witness has further said that he had come to know from newspapers that the constables revolted against S. P.'s administration and wanted to paralyse the administration in Koraput, According to this witness, in U. P. the police force were trying to paralyse Government. If petitioner Naik by asking the police force to behave in the same manner as the police constables had behaved in U. P. and in Koraput meant that the police force in Orissa should paralyse Government, it cannot be doubted that by this speech he intended to create disaffection and to interfere with the discipline amongst police officers. This act on his part must come within the definition of a prejudicial act as defined in Rule 36(6)(b) of the Rules. To incite the police force to paralyse Government is a very serious thing, and one who asks the police force to do so cannot be said to be exercising his right to ventilate the grievance which a citizen always has in a democratic form of Government, By this speech petitioner Naik cannot be said to have asked the people merely to carry on an agitation against the rise in price in the country. On the other hand, this portion of the speech means a direct incitement to the police personnel in this State to paralyse Government by taking resort to various active methods. One who indulges in doing so must be held to have exceeded the limit by all proportion. For this petitioner Naik has been rightly held guilty under Rule 43(5) having done a prejudicial act as defined in Rule 36(6)(b) of the Rules. I have already held that this portion of the speech of Naik has been fully endorsed by petitioner Bhagaban. It, therefore, follows that petitioner Bhagaban is also guilty of the charge which has been framed against him under Rule 43(5) of the Rules,

14. Regarding the offence Under Section 145, Indian Penal Code, it has been rightly con tended that the charge does not mention any common object at all. The evidence also does not show that the meeting had any of the objects as mentioned in Section 141, Indian Penal Code. Facts reveal that petitioner Naik obtained permission for the meeting to discuss matters relating to arrests of two trade Union leaders. This being the purpose for which the meeting was convened, all those who attended the meeting were only expected to know that there would be a discussion of matters relating to the arrests of two trade Union leaders. None of the persons who attended the meeting can be said to have shared the object which petitioners Naik and Bhagaban Sahu had, viz. to incite the police force to rise in revolt against Government and to paralyse the same. The speeches as mentioned in Ex. 8 only show that two of the speakers, Viz., petitioners Naik and Bhagaban Sahu, incited the police force. The other speakers simply called upon the persons present at the meeting to support the railway strike. In some of these speeches there are references to the repressive measures undertaken by Government. From this it cannot be said that those speakers who did not incite the police personnel shared the object of petitioners Naik and Bhagaban Sahu. Therefore, even conceding that the object of petitioners Naik and Bhagaban was to overawe by criminal force or show of criminal force the Central or the State Government, the said object not having been shared by other speakers as appears from then speeches, the assembly cannot be said to be an unlawful one. Since the assembly was not as unlawful one, the command given by P. W. 1 to the said assembly to disperse and the violation of such command would not make an offence Under Section 145, Indian Penal Code. It is only when an assembly is an unlawful one as defined in Section 141, Indian Penal Code and is commanded to disperse, any person who joins or continues in such assembly commits an offence Under Section 145, Indian Penal Code. The assembly in the present case having been held not to be an unlawful one, the petitioners cannot be convicted for an offence Under Section 145. Indian Penal Code even if it is accepted that they did not disperse in violation of the order given by P. W. 1.

15. In the result, I hold petitioners Ram Chandra Naik and Bhagaban Sahu only guilty under Rule 43(5) of the Rules and confirm the order of conviction and sentence passed against them. These two petitioners are, however, acquitted of the charge Under Section 145, Indian Penal Code. The rest of the petitioners having been found not guilty of any of the charges. the order of conviction and sentence passed against them is set aside and they are acquitted. Since the punishment inflicted upon petitioner Bhagaban Sahu is adequate I do not find any reason to enhance the same. The notice of enhancement therefore is discharged against Bhagaban Sahu in Criminal Revision No. 298 of 1975. Both the revisions are accordingly allowed in part as indicated above.


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