Skip to content


M. Govindankutty and anr. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Misc. Petn. No. 21 of 1963
Judge
Reported inAIR1964Ker221
ActsDefence of India Rules, 1962 - Rules 35(6), 41(1), 147 and 155
AppellantM. Govindankutty and anr.
RespondentState of Kerala
Appellant Advocate V.R. Krishna Iyer and; V.M. Nayanar, Advs.
Respondent AdvocateState Prosecutor
DispositionPetition dismissed
Excerpt:
.....of military operations: i see no good reason for supposing that particular portions of a speech or article cannot constitute a 'prejudicial act. notwithstanding anything contained in the code of criminal procedure, 1898 (v of 1898), no person accused or convicted of a contravention of these rules or orders made thereunder shall, if in custody, be released on bait or on his own bond unless,-(a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these rules or orders made thereunder as the central government or the state government may by notified order specify in this behalf, the court is satisfied that there are reasonable grounds for believing,..........sheeted for the contravention of the provisions contained in rule 41 (1) (c) of the defence of india rules, 1962, an offence punishable under rule 41 (5) of the rules. 2. the first petitioner is the printer and publisher of a local vernacular daily by name 'desabhimani' and the second petitioner is the maker of the offending article. it is said to be a translation of an article under the caption 'war drums beat' written by one c. n. achary in the english weekly 'mainstream' published from new delhi. 3. the petitioners, who are on remand, applied for bail but the application was rejected by the district magistrate. the sessions judge agreed with the district magistrate when a similar application was made to him. the petitioners have now applied to this court in the exerciseof its.....
Judgment:
ORDER

P. Govinda Menon, J.

1. The petitioners have been charge sheeted for the contravention of the provisions contained in Rule 41 (1) (c) of the Defence of India Rules, 1962, an offence punishable under Rule 41 (5) of the Rules.

2. The first petitioner is the Printer and Publisher of a local vernacular daily by name 'Desabhimani' and the second petitioner Is the maker of the offending article. It is said to be a translation of an article under the caption 'War Drums Beat' written by one C. N. Achary in the English Weekly 'Mainstream' published from New Delhi.

3. The petitioners, who are on remand, applied for bail but the application was rejected by the District Magistrate. The Sessions Judge agreed with the District Magistrate when a similar application was made to him. The petitioners have now applied to this court in the exerciseof its revisional powers to set aside the order of the courts below and to grant them bail.

4. Learned counsel for the petitioners first argued that the publication would not amount to an offence under the Defence of India Rules.

Rule 41 (1) of the Defence of India Rules states:

'(1) No person shall, without lawful authority orexcuse--

(a) do any prejudicial acts; or

(b) ..................

(c) make, print, publish or distribute any documentcontaining, or spread by any other means whatsoever, anyprejudicial report.

(d) ...................

And Sub-rule (5) says:

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

5. Rule 35(7) defines 'prejudicial report'. It reads:

' 'Prejudicial Report' -- '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.'

Sub-rule (6) to Rule 35 indicates what is meant by prejudicial act.

' 'Prejudicial act' means any act which is intended or is likely,--

(a) to (f). .................

(g) to promote feelings of enmity and hatred between different classes of persons In India;

(h) to (k). .................

(i) to undermine public confidence In the national credit or in any Government loan or security or in any notes, coins or tokens which are legal tender in India or in any part thereof, or to prejudice the success of any financial measures taken or arrangements made by Government with a view to the efficient conduct of military operations:

(m) ..................

(n) to influence the conduct or attitude of the public or of any section of the public in a manner likely to be prejudicial to the defence of India and civil defence or to the efficient conduct of military operations.'

6. The article has been read over to me and I am not prepared to accede to the contention of the learned counsel for the petitioners that the article prima facie would not amount to the publication of a 'prejudicial report.' As the case is pending trial, I do not want to say anything more at this stage. It is also not possible to accept the argument that the article must be considered as a whole and unless the whole article was found to be a 'prejudicial act,' the petitioners cannot be convicted. I see no good reason for supposing that particular portions of a speech or article cannot constitute a 'prejudicial act.'

7. Various other contentions on the merits of the case whether there was the requisite mens rea, whether the making and the publication were prior to the coming into force of that Ordinance etc., were raised. Rule 147 says that where any person is prosecuted for contravening any of these Rules which prohibits him from doing an act the burden of proving that he had such authority or excuse shall be on him. So if the prosecution provesthat a prejudicial act coming within the Rules is committed the onus would be on the person charged to prove that the document was made or printed before the ordinance came into force. It is, therefore, premature to decide these questions which may, to a certain extent, depend on the evidence adduced in the case.

8. Learned Public Prosecutor then referred to Rule 155 of the Defence of India Rules and contended that it is only if the Court is prepared to say at this stage that the petitioners are not guilty of the offence charged, that they could be released on bail. The Rule is in the following terms:

'Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no person accused or convicted of a contravention of these rules or orders made thereunder shall, if in custody, be released on bait or on his own bond unless,--

(a) the prosecution has been given an opportunity to oppose the application for such release, and

(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the court is satisfied that there are reasonable grounds for believing, that he is not guilty of such contravention.'

9. It is not contended that this Rule is ultra vires. If this Rule contains a valid provision, then the court must be satisfied that there are reasonable grounds for believing that the accused is innocent before releasing him on bail. It is stated that this Rule is Quite unreasonable and repugnant to the elementary notions of Criminal Jurisprudence that a person is presumed to be innocent until it is proved that he is guilty. Neither the Act nor the Rules indicate any attempt to depart from these well-settled principles. Rule 155 merely Indicates that where a person is accused of an offence under the Rules the court may not liberate him on ball pending the trial, except when it was reasonable grounds to believe that he is innocent. When the court comes to decide the case, it must acquit the accused if the prosecution has failed to establish the charge. Whether unreasonable or not laws lawfully made have to be given effect to by courts. It must be remembered that many provisions which would appear very harsh or unreasonable in peace time may be justified by necessities of war.

10. The courts below were, therefore, justified in-finding that no reasonable grounds exist, at this stage for believing that the accused are not guilty of the contravention of the provisions of the Defence of India Rules.

11. The petition fails and it is dismissed. The learned Public Prosecutor stated that the case is ready for hearing. The learned District Magistrate will take up and dispose of the case as expeditiously as possible.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //