1. This is an appeal under Section 33 of Act 56 of 1951. Tilok Chand Gopal Das, Editor and Publisher of the Sindhi language paper 'Hindu', Ajmer, has been called upon by the learned Sessions Judge under Sections 4 and 7 of Act 56 of 1951 to furnish a security in the sum of Rs. 500/- in cash or equivalent thereof in Government securities. Against that order, the respondent Tilokchand Gopal Das has come up in appeal. I have heard the learned Counsel for the appellant and the learned Assistant Public Prosecutor.
2. The facts in brief are that on 3-6-1952 a certain leading article was published in the newspaper 'Hindu'. Soon after the appellant was detained under the Preventive Detention Act, but on the intervention of some citizens of Ajmer and on their giving certain assurances, the appellant was released from, detention. The appellant published the article in question in the paper 'Hindu' dated 12-6-1952. He was again detained, but was subsequently on the advice of the Advisory Board released from detention. On 7-7-19S2, the District Magistrate, Ajmer, preferred a complaint under Sections 3(v), 4 and 7 read with Section 16 of Act 56 of 1951. An enquiry was held and the learned Sessions Judge demanded the security in terms stated above by his judgment dated 18-5-1953.
3. The first point pressed by the learned Counsel for the appellant is that Section 3(v) of Act 56 of 1951 is ultra vires the Constitution and therefore void under Article 13. The contention of the learned Counsel is that Article 19(a) guarantees freedom of speech and expression. This freedom is restricted by the provisions of Article 19(2) which provides that the State will not be prevented from making any law imposing reasonable restrictions on the exercise of the right of freedom of expression in the interests of the security of the State... public order ... or incitement to an offence.
4. Section 3(v) provides that the expression 'objectionable matters' means 'any words, signs or visible representations which are likely to promote feelings of enmity or hatred between different sections of the people of India'. I believe there can be no two opinions in the matter for anything which promotes feelings of enmity or hatred between different sections of the people of India is something which is likely to affect the interests of public order inasmuch as it may lead to a riot, commotion or commission of other offences. I am, therefore, unable to accept the contention that Section 3(v) is not intra vires.
5. The second contention of the learned Counsel is with reference to Article 20(2) of the Constitution. It is suggested that the appellant having been detained after he had written this article has already been punished and cannot be punished for the same offence more than once. - Maqbool Hussain v. State of Bombay : 1983ECR1598D(SC) , fully answers this contention. It is clear that the accused was neither prosecuted nor punished for the writing of this article when he was directed to be detained on 3-7-1952.
6. The next contention of the learned Counsel is with reference to Section 247, Criminal P. C. This section provides that in a case tried as a summons case, if the complainant is absent and the Magistrate does not consider it proper to adjourn the hearing of the case to some other day, the accused must be acquitted. The learned Counsel points out that no request was made to the learned Sessions Judge to condone the absence of the complainant and as such no order was passed by him. The learned Counsel further contends that as the question involves judicial consideration and the exercise of judicial discretion, the learned Sessions Judge cannot be 'deemed' to have condoned the absence of the complainant and therefore he ought to have acquitted the accused. On the other hand, the learned Assistant Public Prosecutor has urged that Section 247 will have no application to the present case. The learned Counsel has relied on - Asrafali Saiyal v. Nasu Sarkar AIR 1927 Cal 343 (B). In this case it was held that in proceedings under Section 107 of the Code of Criminal Procedure, if the complainant and his witnesses are absent, the proper order for the Magistrate to pass is one of discharge of the persons proceeded against under Section 119 of the Code of Criminal Procedure and not of acquittal under Section 247, It was further held that Section 247 was not applicable to proceedings under Section 107. The summons procedure has been made applicable by Section 18(2) which provides that the enquiry under this Act shall be made, as nearly as may be practicable, in the manner prescribed for conducting trials in summons cases. I am of opinion that it is not the whole Chapter XX which has been made applicable. The purpose of Section 18(2) is only to indicate and direct that the enquiry shall be conducted in the manner in which a summons trial is conducted subject to the modifications mentioned in the subsequent sections. The fact that this is an enquiry and not a trial and that the person proceeded against is a respondent and not an accused can, however, not be lost sight of. I am of opinion that the procedure laid down in Chap. XX will not apply in its full rigour, but only its general principles will apply. I am, therefore, of opinion that Section 247, Criminal P. C. has no application to enquiries under Act 56 of 1951 and, as such, the question of discharging the respondent of acquitting him or even dropping the proceedings against him did not arise.
7. The learned Counsel for the appellant has next urged that in a summons case, under Section 244, the complaint should be heard first. It is pointed out that the District Magistrate was not examined in the case. I am of opinion that this argument has no force. Section 19 specifically provides that in case of non-appearance of the respondent, the complainant is to be heard and all evidence that may be produced in support of the complaint has to be examined. Section 18(1) also provides that after settling the points for determination the Sessions Judge is to proceed to enquire into the complaint and after taking such evidence as may be produced and hearing the arguments, pass such orders as he may think fit. There is a provision that the complaint shall be enquired into but no direction has been given, as in Section 244 of the Code of Criminal Procedure, that the complainant must be heard in the complaint under Act 56 of 1951. Unlike a complainant in respect of an offence under the Indian Penal Code, the complainant may not necessarily be able to give evidence of any facts within his personal knowledge and, as such, it also appears that the examination of the complainant may not serve any useful purpose in every case. I am, therefore, of opinion that the examination of the complainant is not essential under the procedure laid down in the Act and therefore the non-examination of the complainant was not an irregularity.
8. The learned Counsel for the appellant has next contended that the complaint is defective inasmuch as it does not mention the background of the situation prevailing at Ajmer at the time, against which the article and its tendencies have to be judged. The learned Counsel has argued that in the absence of any such allegation in the complaint, the prosecution was not entitled to rely on the circumstances then obtaining. The learned Assistant Public Prosecutor has urged that Act 56 of 1951 does not specify the contents of the complaint. It is also urged that it is sufficient to allege the facts and not the evidence by which it is intended to prove those facts. It would certainly be desirable to mention the circumstances which make the particular article an objectionable matter. I am however of opinion that no actual prejudice was caused. The respondent was in the know of the circumstances. In fact, all of them except the promulgation of order under Section 144, Criminal P. C. are mentioned in the article complained against. I am, therefore, unable to see any force in the contention.
9. The learned Counsel has urged that the learned Sessions Judge lost sight of Explanation 1 to Section 3 of Act 56 of 1951. The argument is that any comment expressing disapprobation of matters which are producing or have a tendency to produce, feelings of enmity or hatred between different sections of the people of India, shall not be deemed to be objectionable matter. The learned Assistant Public Prosecutor has urged that this is to be so only if the words complained of point to these matters 'with a view to their removal'. The learned Counsel for the appellant urges that the expression 'with a view to their removal' goes with the earlier part of the explanation. I am unable to accept this contention. In my view, words pointing out matters which are producing or have a tendency to produce, feelings of enmity or hatred are not to be deemed objectionable matters if this pointing out of the matters is done with a view to their removal that is with a view to removal of the causes which are producing the undesirable effects.
10. The learned Counsel for the appellant has also urged that the evidence on the record is insufficient. He has pointed out that the witnesses state that tension existed, but they have not given any facts from which the court could infer the existence of the tension. It is also pointed out that the witnesses do not mention their own feelings. I am of opinion that all this evidence about tension was not necessary. The facts furnishing the back-ground are few and are not disputed. It is admitted that the Delhi incident referred to in the article had occurred. There was the other incident about the girl from Kalyan Camp and the third incident was the finding of the corpse in Mohalla Inderkot. There can be no doubt that the situation was considered by the authorities to be such as might lead to a disturbance of the public peace and an order under Section 144, Criminal P. C. was promulgated on June 3, 1952. All that I have to see is not what actual effect this article had, but what effect it was 'likely' to have in the circumstances stated above.
11. This brings me to question whether the article was likely to promote feelings of hatred between the different sections. I am not concerned with the question whether the appellant condemned the action of a few Muslims. All that I have to decide is whether the article, taken as a whole was likely to promote feelings of enmity or hatred between the Hindus of Ajmer and the Muslims of this place.
12. As I read it, the article appears to point out that the Hindus have not taken kindly to inter-communal marriages and that action was taken to prevent the marriage at Delhi. Then a reference was made to forced conversions by Aurengzeb and the resulting increase in the Muslim population. Then after making reference to the Visit of the girl from Kalyan-Camp to Ajmer, it appears to me that it was pointed out that the Hindu public would not tolerate inter-communal marriages. It was stated that the incident referred to showed that the Muslims were preparing to marry Hindu girls. In the last paragraph, it was stated that it was apprehended that the Hindus of Bharat may behave like Balochis of Sind in kidnapping double the number for each Hindu girl kidnapped by the Muslims. Taken as a whole, it appears to me that in the atmosphere then prevailing at Ajmer, this amounted to virtual incitement to Hindus to act as Balochis were acting in Baluchistan. I am, therefore, of opinion that the article amounted to an 'objectionable matter'. The appellant was, therefore, rightly called upon to furnish security.
13. The learned Counsel has also urged that under Section 4, the learned Sessions Judge should not have taken action unless he was satisfied that there were sufficient grounds for demanding security. I am unable to see any force in this contention. I have already held above that the article was objectionable matter. There is also evidence to show that the appellant was, for writing certain previous articles detained and then released on certain citizens giving certain assurances. It, therefore, appears to me that it was within his knowledge that in the opinion of the authorities, his writings were having a prejudicial effect. It was found by the learned Sessions Judge that the article complained of was objectionable matter and that the respondent had persisted in his course despite warning. It, therefore, appears to me that in taking action, the learned Sessions Judge must have been of opinion that there were sufficient grounds for demanding security. I am unable to see any force in the suggestion that before demanding security the learned Sessions Judge should have specifically recorded the fact that in his opinion sufficient grounds existed for taking action.
14. No other point has been pressed before me.
15. I am, however, of opinion that in view of the fact that a period of 15 months has elapsed without any serious consequence having followed from the article and also because the appellant does not appear to have done any act justifying the State in taking action to get the security forfeited, the amount of the security may without detriment to the public interest be reduced to Rs. 200/- (Two hundred) only. With that amendment I dismiss the appeal.