T. Chandrasekhara Menon, J.
1. Petitioners are the accused who are arrayed before the Judicial Magistrate of Second Class, Moovattupuzha in Crime No. 79 of 1982 (of the Koothattukulam Police Station). The offences alleged against them are under Sections 143, 149. 121A and 124A of the Penal Code and Section 131(1)(b) of the Representation of the People Act. They have approached this court, seeking its inherent powers to quash the proceedings before the Magistrate on the around that even on the allegations made against, them by the police, they could not be convicted for the offences aforementioned and the continuation of the proceedings before the Magistrate would only be an abuse of the process of court.
2. To appreciate the contentions advanced on behalf of the petitioners it is necessary to take note of the actual complaint made against them. What is stated in the first information is (Being in vernacular is omitted in this report Ed.) It is further elucidated that what the people were asked to vote for in the parallel booth was on the Question whether they approve of the bourgeois elections.
3. Section 143 of the Penal Code prescribes the punishment for being a member of an unlawful assembly. An assembly of five or more persons is designated as 'an unlawful assembly' if the common object of the persons composing that assembly is to overawe by criminal force or show of criminal force the Central or any State Government or Parliament or the Legislature of any State or any public servant in the exercise of the lawful power of such public servant, or to resist the execution of any law, or of any legal process or to commit any mischief or criminal trespass, or other offence or by means of criminal force or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right: or by means of criminal force or show of criminal force to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Section 141 I.P.C. only if the aforesaid ingredients are there, the assembly of persons becomes unlawful. Where the common object of the assembly whatever be their number, is not one or more of The objects specified above, it will not constitute an unlawful assembly. It might be noted here that the mere fact that an assembly consists of five or more persons or is likely to disturb the public peace does not prove that the common object of the assembly is one of those enumerated in the Section. But then there Section 151 of the I.P.C. may come in. And it has been held that the common object must be an immediate one and not to be carried out at some future time, See Shoukat Ali v. State AIR 1954 Pat 194 : 1954 Cri LJ 485 : C. V. Devassikutty v. State AIR 1953 Tray-Co 275 at 278 & 280 : 1953 Cri L.I 1301 at p. 1304 & 1306and King Emperor v. Nga Tun Maung AIR 1925 Rangoon 362 at 363 : 1926-27 Cri LJ 337 at P. 338. It is impossible to say that in this case on the allegations in the police report Section 143, I.P.C. will come in.
4. Nor would Section 149 I.P.C. is attracted as a consequence. Though Section 151 I.P.C. is not alleged, it is also of no relevance here because no complaint is there that there is likelihood of causing public disturbance on account of the action alleged against the petitioners.
5. Now it has to be considered whether the allegations of the police if accepted would bring in Sections 121A and 124A of the I.P.C. Section 121A will be attracted if anybody wages or attempts to wage war against the Government of India or conspires to overawe by means of criminal force or by show of criminal force the Central or State Government. The expression waging war has neither been defined in the Code nor in the General Clauses Act. A Division Bench of the Calcutta High Court had said in an early case that the expression must be understood in its ordinary dictionary meaning of 'carrying on war'. The Indian Law Commissioners in their Second Report dt. 24-6-1847 had observed:
We conceive the term 'wages war against, the Government' naturally to import a person arraying himself in defiance of the Government in like manner and by like means as a foreign enemy would, do, and it seems to us, we presume it did to the authors of the Code that any definition of the term so unambiguous would be superfluous.
Here the allegations will not certainly amount to waging war or attempting to wage war. Nor are there any allegations that, the petitioners conspired to overawe any Government servant by means of criminal force or show of criminal force. A slogan that the Government can be changed by an armed revolution does not mean that there is a conspiracy to change the Government by criminal force. At best it could be said that, the petitioners want to educate the people that by force only the Government could be changed. The word 'overawe' clearly imports more than the creation of apprehension or alarm or fear. It connotes the creation of a situation in which the Government is compelled to choose between fielding to force or exposing the Government or the members of the public to a very serious danger. See Mir Hagan Khan v. State : AIR1951Pat60 . : 1951 52 Cri LJ 462 at p. 467.
6. In a similar slogan shouting case, I had considered the application of Section 124A Sedition. And I had said on the basis of the Supreme Court decision in Kedar Nath v. State of Bihar : AIR1962SC955 that the said section will not be applicable in cases of this nature because Sinha C.J. in the aforesaid case has made it plain that the scope of the section was restricted to cases where the activity of the accused was prejudicial to public order or public security, as it is only in such cases that it could be said that the attack was directed against the Government: established by law. It is only on that basis the Supreme Court said that the section came within the saving provision of Clause (2) of Article 19 of the Constitution. A procession of a few youngsters shouting slogans to the effect that only by an armed revolution the Government of people could be established would not by itself create any public disturbance.
7. No doubt, no Government worth its name cannot but intervene when there is threat to public tranquility by any act. That is the necessity for the saving provision in Clause (2) of Article 19 of the Constitution. A Government which keeps quiet when public peace is endangered from whichever quarter is really abdicating its duties. However it is also necessary to remember that no opinion or ideas could be suppressed by imprisoning those who hold them. Political advocacy that, criticized Government or urged unorthodox ideas, if forcefully presented, would create some possibility that it would lead to undesired action. But then what would be the result of suppressing such political advocacy. Apart from the fact that such suppression of ideas may merely divert public opinion from serious social problems which need to be heeded, cutting off opportunity for expression is likely to intensify hostility, drive opposition underground, and prevent, the solution of problems by reason rather than by force. As Thomas I Emersion an eminent jurist and a Professor of Law at Yale University says the system of freedom of expression rests upon the proposition that all beliefs, ideas and opinions should be open to challenge, as otherwise the values on which society is founded become 'dead dogma', not really understood, lacking in vitality and vulnerable to erosion or full scale attack. Groups which advance antidemocratic ideas do not operate in a political vacuum. They are often motivated by fears, grievances or other conditions which the society should understand and confront. All the more in a country like India where the gap between the rich and the poor is so wide and where a large percentage of the population live below poverty line, no set of ideas or opinions could be suppressed without endangering freedom of expression throughout the society. And such repression could be achieved only by creating an apparatus which will destroy the atmosphere of freedom essential to the life and progress of a healthy community. We may well remember what Justice Oliver Wendell Holmes said more than half a century back:
If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should 'be given their chance and have their way.
8. As regards the offence under Section 131(1) of the Representation of the People Act. that deals with using or operating within or at the entrance of the polling station, an apparatus like a megaphone or a loudspeaker or shouting or otherwise acting in a disorderly manner within or at the entrance of the polling station or in the neighborhood thereof. The allegations against the accused do not state that there has been such a disorderly conduct, on the petitioners' part. If away from the polling station, they set up a booth to test the popularity of their idea (it is stated by the petitioners that, it was away four kilometers from the nearest polling booth which statement is not challenged) it is no offence at all.
In this view, I allow the petitioners' plea and the proceedings pending in the file of the Judicial Magistrate of the Second Class, Moovattupuzha in Crime No. 79 of 1982 of the Koothattukulam Police Station is Quashed and the petition discharged.