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K.A. Mohamad Khan and anr. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectConstitution;Criminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 269 of 1962
Judge
Reported inAIR1964Ker104; 1964CriLJ400
ActsConstitution of India - Articles 13, 13(1) and 19(1); T.C. Public Safety Measures Act, 1950 - Sections 31 and 31(5)
AppellantK.A. Mohamad Khan and anr.
RespondentState of Kerala
Appellant Advocate T.C.N. Menon and; K.R. Panicker, Advs.
Respondent AdvocateState Prosecutor
DispositionRevision petition dismissed
Cases ReferredIn M. P. Menon v. State
Excerpt:
constitution - speech and expression - articles 13, 13 (1) and 19(1) of constitution of india and sections 31 and 31 (5) of t.c. public safety measures act, 1950 - whether section 31 (5) ultra vires and void as it imposes arbitrary restrictions of fundamental rights conferred by article 19 (1 ) (a) - report alleging suicide due to police torture was false - publication of such report amounted to prejudicial act punishable under section 31 (5) - section 31 imposes reasonable restriction on fundamental right of freedom of speech and expression - conviction upheld. - - it would thus include not only the freedom of press, but the expression of one's ideas by any visible representations, such as by gesture and the like. article 19(2) has been amended so as to extend its protection to a..........the said sub-clause 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 offenco.xx xx x this freedom guaranteed under clause (1) (a) is the right to express one's convictions and opinions freely, by were of mouth, writing, printing, picture or in any other manner. it would thus include not only the freedom of press, but the expression of one's ideas by any visible representations, such as by gesture and the like. expression, naturally, presupposes a second party to whom the ideas are expressed or communicated. in short, freedom of expression includes the freedom of propagation of ideas,' their publication and circulation.clause (2) as amended by the.....
Judgment:

Govinda Menon, J.

1. This revision petition is tiled by the accused who were convicted by the Sub-Divisional Magistrate of Always under Section 31(5) of the Travanco re-Cochin PUBLIC SAFELY Measures Act -- Act V of 1950 [hereinafter referred to as the Act).

2.The second accused is the Editor and printer of a Malayalam daily called 'Janatha' published from Ernakulam and accused No. 1 is the Alwaye correspondent of the paper. In the issue of the paper dated 26th August, 1960 a report sent by the first accused was published on the front, page under the caption

'Suicide due to police torture. Peoples' rage against the devilish activities of the Alwaye ponce'.

The substance of the report is that on 23-8-1960 one mazdoor by name Parasukulty, who is working in the Alwaye Railway Station, was taken at night to the Alwaye police station and subjected to severe torture, that he was released the next day and that in the afternoon or that day the police again came in search of the mazdoor, that on seeing the police the mazdoor ran in panic followed by the police and being afraid of price and to escape from their dutches the mazdoor jumped in front of a running train, was run over and killed. The prosecution alleged that the allegation confined in the report is absolutely false and baseless and the publication of the report amounts to a 'prejudicial act' and 'prejudicial report' as defined in Section 2 and is an ofience punshiable under Section 31(5) of the Act.

3. That the report was sent by the first accused and that it was published by the second accused in the paper is amply proved and has been admitted by the accuse When questioned under Section 342 Cr. P. C., the first accused stated that the report is, in fact, true and the second accused stated that it was published bona fide believing that the report is true. The defence examined witnesses to prove that the report is true. The learned Magistrate on a consideration of the evidence came to the conclusion that It was a false report and would amount to a 'prejudicial report' and convicted the accused under Section 31(5) or the Act. The learned Sessions Judge of Ernakulam on a reappraisal of the evidence, in appeal, cams to the same conclusion that tbe report was false. He negatived the contention, of the learned counsel for the defence that Section 31(5) of the Act was ultra vires and confirmed the conviction and sentence. Aggrieved by the order the accused has come up in revision.

4. Learned counsel for the petitioners contend that Section 31(5) under which the accused have been convicted is ultra vires and void as the section imposes arbitrary and unreasonable, restrictions on the fundamental rights corrterred on the petitioners by Article 19(1)(a) of the constitution, namely, the freedom of speech and expression and are therefore void under Article 13(1) of the constitution-Learned Advocate-General, appearing for the State, on the other hand contends that the legislature can make laws placing reasonable restrictions on the rights of citizens to freedom of speech and expression in the interests of public order and the validity of the impugned Act must toe tested by the provisions of Article 19(2) of the constitution we will, therefore, read the relevant articles. Article 13 reads:

'(1) All laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.XX XX X

The impugned Act -- Act V of 1950 -- was enacted on 30-3-1950. Clause (2) of Article 13 provides that any law made by any legislature after the commencement of the constitution which contravenes any of the fundamental rights included in Part III of the Constitution shall-to the extent of the contravention be void.

5. Now we will go to Article 19. Article 19 reads:

'(1) All citizens shall nave the right--(a) to freedom of speech and expression;

xx xx x(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the state from making any law, in so far as such taw imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 offenco.xx xx x

This freedom guaranteed under Clause (1) (a) is the right to express one's convictions and opinions freely, by were of mouth, writing, printing, picture or In any other manner. It would thus include not only the freedom of press, but the expression of one's ideas by any visible representations, such as by gesture and the like. Expression, naturally, presupposes a second party to whom the ideas are expressed or communicated. In short, freedom of expression includes the freedom of propagation of ideas,' their publication and circulation.

Clause (2) as amended by the constitution (first) amendment Act 1951, enables the legislature to impose restrictions upon the freedom of speech and expression. 'Public Order' referred to in clause (2) was introduced to meet the situation arising from the Supreme Court's decision in Romesh Thappar v. State of Madras, AIR 1950 SC 124 and Brij Bhusnan v. state of Delhi, AIR 1950 SC 329 which laid down that ordinary or local public order were no grounds for restricting the freedom of speech guaranteed by the Constitution. Presumably in an attempt to get over the effect of the Supreme court decisions, the expression 'public order was inserted in Article 19(2) with a view to bring in offences involving breach of purely local significance within the scope or permissible restrictions under Clause (2).

6. As to what is in 'interest of public order has been considered in various decisions of the supreme court: Learned Advocate-General referred us to two decisions. In Ramji Lal Modi. v. State of U. P. (S) AIR 1957 SC 620 Das, C. J., stated:

'It will be noticed that the language employed in the amended, clause is 'in the interests of and not 'for the, maintenance of'. As one of us pointed out in Debi Soren v. State of Bihar, AIR 1954 Pat 254 - the expression, 'in the interests of' makes the ambit of the protection very wide. A law may not nave been designed to directly maintain public order and yet it may nave been enacted, in the interests of public order.'

The argument in that case was that Section 295A of the Penal Code which deals with offences relating to religion have no bearing on the maintenance of public order or tranquility and consequently a law creating an onence 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, The learned Chief Justice referred to Articles 25 and 26 of the Constitution, and said that the right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health and. therefore it cannot the predicated that freedom of religion cart nave no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order.

7. The next case is Virendra v. State of. Punjab, (S) AIR 1957 SC 896 where the learned Chief justice again observed much to the same effect:

'As' has been explained by this Court in AIR 1957 SC 620, the words 'in the interests of' are words of great amplitude and are much wider than the words 'for the maintenance of', the expression 'in the interests of' makes the ambit of the protection very wide, for a law may not have been designed to directly maintain the public order, or to directly protect the general public, against any particular evil and yet it may nave been: enacted 'in the interests of' the public order or the general public as the case may be.'

8. Learned counsel for the petitioner argues that though this Act might have been enacted in the interests of public, order it takes within, its ambit the publication of all reports, both, true and false and therefore the section imposes not, merely restrictions, on but total, prohibition against, the exercise of the fundamental rights and are not saved, by the protective provisions embodied m Article 192. In other words the contention is that where a law purports as the Impugned section does, to authorise the, imposition of restriction on the exercise of the fundamental, rights to freedom, of speech and expression m language wide enough to coyer restrictions both within and without the limitation of constitutionally permissible legislative action affecting such, right, the court should not uphold it even in so far as it may be applied within the constitutionally permissible limits as it is not severable. Learned counsel, therefore, urged that so long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void.

Reference was made to the principles enunciated in the case in Chintaman Rao v. State of M. P., AIR 1951 SC 118 that if the language employed in the impugned law is wide enough to cover restriction both within and outside the limits of constitutionally permission legislative action affecting the guaranteed fundamental rights and so long as the possibility of the statute being applied for purposes not sanctioned by the constitution cannot be ruled out, the sections must be struck down as ultra vires the Constitution.

We do not think that these principles have any application in the instant case, it will be remembered that Article 19(2) as it was then worded gave protection to a law relating to any matter which undermined the security of or tended to overthrow the state, Section 9 (1-A) of the Madras Maintenance of Public Order was made for the purpose of securing public safety and the maintenance of public order.

This consideration cannot apply to the case now under consideration. Article 19(2) has been amended so as to extend its protection to a law imposing reasonable restrictions in the interests of public order and the language used in the impugned Act quite clearly and explicitly limits the exercise of the powers conferred by them to the purposes specifically mentioned in the sections and to no other purpose.

9. The next case to winch reference was made by the learned counsel for the petitioner is the decision in Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 636. Subba Rao, J., dealing with the case in (S) AIR 1957 SC 620 and AIR 1957 SC 896 (cited supra) stated that the observations in those cases cannot be taken to mean that any remote or fancitu connection between the Impugned Act and the public order would be sufficient to sustain its validity.

The learned Judge referred to the Full Bench decision-of the Federal Court in Rex v. Basudeva, AIR 1950 FC 67 where Patanjali Sastri, J., as he then was, pointed out at page 69:

'Activities such as these are so remote In the chain of relation to the maintenance of public order that preventive detention on account of them cannot in our opinion, fall within the purview of Entry I of list II..... the connection contemplated must in our view, be real and proximate, not far-fetched or problematical.

The learned Judge then referred to Section 3 of the impugned Act -- The U.P. Special Powers Act, 1932 -- under which Dr. Ram Manohar Lohla was prosecuted and analysing the section observed that under this section a wide net has been cast to catch In a variety of acts of instigation ranging from friendly advice to a systematic propaganda not to pay or to defer payment of liability to Government or any authority or to any person to whom rent is payable in respect of agricultural land, and In its wide amplitude the section takes in the innocent and the guilty persons, bona fide and mala fide advice, individuals and class, abstention from payment and deferment of payment, expressed or implied instigation, Indirect or direct instigation, liability due not only to Government but to any authority or landholder.

His Lordship stated that in short, no person, whether legal adviser or a friend or a well-wisher of a person instigated can escape the tentacles of that section, though in fact, the rent due has been collected through coercive process or otherwise. His Lordship, therefore held that the limitation imposed in the interest of public order, to be a reasonable restriction, should be one which has a proximate connection or nexus with public order but not one far-fetched, hypothetical or problematical or too more in the chain of its relation with the public order.

It is not seriously contended that in this case there is no proximate connection between the action complained against and public order. It is also not disputed that the report that was published is likely to incite public to violence and have a tendency to create public disorder. But what, is complained against by the learned counsel is that the term 'prejudicial report' would take in reports true as well as false and in fact any person, who gives a factual, account of a true occurrence can also be roped in under the provisions of this section and the constitutional validity of the section cannot Da made to depend, upon, such an uncertain factor and therefore a cannot be considered to be a reasonable restriction under Article 19(2).

10. Learned Advocate-General argued that a close scrutiny of We relevant provisions would show that the acts that would come in under the penal provision of the Act are publication of false reports and rumours and that it was never intended that true and factual reports should be brought in within the ambit of the section. Chapter 111 of the Act deals with public safety and it is in this chapter that Section 31 occurs, what is made punishable is doing of prejudicial act or publishing or prejudicial report. The prejudicial report must be one the publishing of which is or is an incitement to the commission, of a prejudicial act and to become a prejudicial act there must be dissemination of a false rumour, report or information. Thus carefully analysed it is clear that what is made punishable Is only publishing a false rumour or report or information. While construing the statute a reasonable meaning has to be assigned to words used having due regard to the context in which they are used and the object of the Act.

11. now even assuming that it could be argued that the section can refer to a true report also as contended by the learned counsel the entire section cannot be declared to be unconstitutional. Article 13(1) of the constitution says that all laws in so far as they are inconsistent with the provisions of Part 3 are void only to the extent or such, inconsistency and so the law to the extent that it can impose reasonable restriction cannot be held to be void.

In this, connection learned Advocate-General referred to the decision in Chamarbaughwall v. Union of India, W AIR 1957 SC 628. In that case the constitutionality of Sections. 4 and. 5 of the Prize Competitions Act (42 or 1955) was: challenged on We ground that 'prize competition' as defined in Section 2(d) of the Act included not merely competitions that were of a gambling nature but also those in which, success depended to a substantial degree on skill. The Supreme Court, having regard to the ststory of the legislation, the declared object thereof and the wording of the statute, came to the conclusion that we competitions which were sought to be controlled and regulated By the Act were only those competitions in which success did not depend to any substantial degree on skill and that having regarding to the circumstances under which the act was passed there cannot be any reasonable doubt that the Act was one to control and regulate prize competitions of a gambling character.

Even on the assumption trial 'prize competition' as defined in Section 2(d) of the Act included those in which success depended to a substantial degree on skill as well as those in which it did not so depend the supreme court elaborately considered the doctrine of severabitity and laid down as many as seven rules of construction and on the application of the said rules It was held that the impugned provisions were severable in their application to competitions in which success did not depend to any substantial degree on skill.

12. We may usefully refer to a recent decision of we Supreme Court in Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955. In that case the constitutionality of the provisions of Sections 124A and, 505 of the Penal Code were questioned as being inconsistent with Article 19(1)(a) of the Constitution. Sinha, C. J. after an elaborate discussion of the case law stated:

'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 nave 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 word 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 Co. Ltd. v. State of Bihar, 1955-2 SCR 603 : (S) AIR 1955 SC 661 and (2) 1957 SCR 930: AIR 1957 SC 628. 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.'

13. It may also be mentioned that the constitutionality of Section31 of this very same Act was challenged In the case In M. P. Menon v. State, 1953 Her LT 482: (AIR 1953 Trav-Co 540) and Govinda Pillai, J., held that the Act was valid because in the interests of public order restrictions could be Imposed on the right of freedom of speech and expression.

14. Therefore, we hold that though, the. provisions of the impugned statute impose restrictions on the fundamental right of freedom of speech, and expression, those restrictions are in the interests of public order and within the ambit of permissible legislative interference with that fundamental right and Clause (2) of. An. 19 clearly saves the section from the vice of unconstitutionally. On the merits of the case we are bound by the concurrent findings of the Courts below that the report is false and baseless. The publication of such a report therefore dearly amounts to an offence under Section 31(5).

15. The conviction and sentence are, therefore, confirmed and the revision petition is dismissed.


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