LAW FOR ALL : every Journalist will be entitled to protection in terms of Kedar Nath Singh2 , as every prosecution under Sections 124A and 505 of the IPC3 must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh

Thursday, June 3, 2021

every Journalist will be entitled to protection in terms of Kedar Nath Singh2 , as every prosecution under Sections 124A and 505 of the IPC3 must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.154 OF 2020

VINOD DUA …PETITIONER

VERSUS

UNION OF INDIA & ORS. …RESPONDENTS

J U D G M E N T

UDAY UMESH LALIT, J.

1. This petition under Article 32 of the Constitution of India prays for

following principal reliefs:-

“a. Quash FIR No.0053 dated 06.05.2020 registered at

Police Station Kumarsain, District Shimla, Himachal

Pradesh.

b. Direct that henceforth FIRs against persons belonging

to the media with at least 10 years standing be not

registered unless cleared by a committee to be

constituted by every State Government, the composition

of which should comprise of the Chief Justice of the

High Court or a Judge designated by him, the leader of

the Opposition and the Home Minister of the State.”

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

2. FIR No.0053 dated 06.05.2020 was registered pursuant to

Complaint made by respondent No.3 herein to the following effect:-

“On 30th March, 2020, Mr. Vinod Dua, in his show namely

The Vinod Dua Show on YouTube, has made unfounded and

bizarre allegations (details of particular moments are

provided below) by stating following facts at 5 minutes and

9 seconds of the video, he has stated that Narendra Modi has

used deaths and terror attacks to garner votes. At 5 minutes

and 45 seconds of the video, he claims that the government

does not have enough testing facilities and has made false

statements about the availability of the Personal Protective

Kits (PPE) and has stated that there is no sufficient

information on those. Further, he also went on to state that

ventilators and sanitizer exports were stopped only on 24th

March 2020. A true copy of the video link is: https:/

/www.youtube.com/watch?vvijFD_tgvv8. That the said

allegations are false and the claims are bizarre and

unfounded. Mr. Vinod Dua has spread false and malicious

news by stating that the PM has garnered votes through acts

of terrorism. This directly amounts to inciting violence

amongst the citizens and will definitely disturb public

tranquillity. This is an act of instigating violence against the

government and the Prime Minister. He also creates panic

amongst the public and disturbs public peace by trying to

spread false information, such as, the government does not

have enough testing facilities which is absolutely false. The

government has sufficient facilities to curb the pandemic and

have been taking all the measures to control the pandemic.

By making such false statements, Mr. Vinod Dua spread fear

amongst the people. This video will only create a situation

of unrest amongst the public which will result in panic and

people not obeying the lockdown to come out and hoard

essentials which is absolutely unnecessary. Mr. Vinod Dua

has circulated these rumours with the intent to defeat the

Lockdown by creating an impression that there is a complete

failure of the institution and it will become hard to survive

this lockdown, if not acted upon immediately. It is

unfortunate that during such a pandemic, which is of such a

magnitude, instead of helping out the citizens and

encouraging them to stay at home, the show and the host,

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

Mr. Vinod Dua, is only interested in raising his show’s TRP

and making it successful. The rumours were spread with

intent to cause, or which is likely to cause, fear or alarm to

the public or to any section of the public, whereby any

person may be induced to commit an offence against the

state or against the public tranquillity. Since the matter

relates to Public health, considering the gravity and

seriousness of the matter, this dishonest and fraudulent act

of the Mr. Vinod Dua should be taken with utmost

seriousness. The aforesaid act of Mr. Vinod Dua is an

offence punishable under Sections 124-A, 268, 501 and 505

of the Indian Penal Code, 1860 (IPC). Unless strict action is

taken, it will result in unrest in public and go against public

tranquillity. Hence, you are requested to take strict

appropriate legal action against Mr. Vinod Dua and punish

him accordingly.”

3. The FIR dated 06.05.2020 thus pointedly referred to two segments

in the talk show uploaded on 30.03.2020 – one at 5 minutes 9 seconds and

the other at 5 minutes 45 seconds and generally dealt with the drift of the

assertions made by the petitioner in said talk show to submit that the actions

on part of the petitioner amounted to offences punishable under penal

provisions referred to in the FIR. The transcript of the relevant episode of

the talk show has been placed on record and the translation of the relevant

portions is :-

“At present I am talking about the ongoing corona virus and

whatever has happened in its context – how was our

preparedness, when we were alerted and despite which why

we were in slumber. When I refer to WE then I refer to the

government. I present a small analysis on which a few things

have been stated by P. Chidambaram in an article in the

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

Indian Express, some of this we have also seen and you

understand all of the rest very well. …..

Now, the national lockdown, desh bandhi, note bandhi, GST

are the three big events. Our work as media, we do not stoop,

we are not darbari, we are not from the government, our job

is not to denigrate, our job is not also to criticize, our job is

to do critical appraisal of government’s work. We do not

need anything from the government or anyone’s

complaisance. Media has to do this work but unfortunately

most of the media is towing the line of the government or

their stoogas. They look for support in everything to turn

everything into an event of the Pradhan Sewak and to tout

that as a big success. In the case of attacks on India on

Pathnakot and Pulwama the same were used as political

events to garner votes, surgical strikes were also used as gain

politically. The air strikes by India on Balakot were also

used as means of getting votes. To seek votes by turning

everything into an event has become the hallmark of this

government, this is our call of duty and our dharma to

present these before you, so we are saying these.

Further, our biggest failure has been that we do not have

enough facilities to carry out testing. Undoubtedly, ICMR

and Health Ministry maintain that corona in India is still in

nd stage and has not reached in 3rd stage when community

transmission takes place. At the present juncture India needs

7 lakh PPE suits, 6 lakh N95 masks and 8 crore masks of

three ply. Till now we do not have any information how

many we have and how many will become available by

when. The ventilators needed in other countries and in India,

respiratory devices and sanitizers were being exported till 24

March instead of keeping these for use in our country.

Supply chains got disrupted due to blockage of roads and

now it is being heard that transportation of essential goods

has been allowed. It is not difficult to imagine that when the

supply chains have been closed, when the shops are closed,

some people had gone to the extent of fearing food riots

which have not happened in our country could happen.

Therefore the government is now taking steps which should

have been taken at least 15 days earlier. On 11 February,

ICMR had forewarned, later Rahul Gandhi did the same by

writing a letter on 12 February and again 13 February but the

government kept sleeping.

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

Now, the migrant labour which is a huge issue, the people

who leave their distant villages to earn their livelihoods here,

who are the backbone of the cities, who help in running our

lives, our drivers, our daily wagers, construction workers,

tailors, all those who do small odd jobs and somehow send

money back home. There are certain states like Bihar which

also run on money order economy where it caused huge

disruption and who started returning home. When people

started returning from Mumbai on 10 March, that should

have been a big signal for the government about the effect

the complete lockdown in the whole country can bring about

but no lessons were learnt. Besides, police did not get any

instructions about how to handle this, the face of brutality

and inhumanity of the police was seen and now the face of

the police is also seen while distributing food and also their

face of shaming those not following the lockdown. These

steps could have been taken earlier also because using force

is not the only way of the police.

4. Certain factual developments that occurred after the registration of

the FIR were noted in the Order dated 14.06.2020 passed by this Court as

under:-

“A Notice for Appearance dated 11.06.2020 was issued by

the office of Station House Officer, Police Station

Kumarsain, District Shimla, Himachal Pradesh, under

Section 160 Cr.P.C. to the following effect:

“A Case FIR No.53/2020 Dated 06.05.2020 U/s

124A, 268, 501, 505 IPC has been registered in Police

Station Kumarsain, Distt. Shimla, HP on the

complaint of Sh. Ajay Shyam, Vill & PO Kiara,

Tehsil Theog, Distt. Shimla HP against (You) Mr.

Vinod Dua Journalist, HW News Network. In above

said case your presence is required for interrogation.

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

So you are therefore directed to join investigation at

Police Station Kumarsain on or before 13/06/2020 at

10 am sharp.”

A response to the above notice was sent by the petitioner on

12.06.2020 stating inter alia:

“I have received your notice dated 11.06.2020

seeking my physical presence for the interrogation of

FIR dated 06.05.2020, on 13.06.2020 before the

police station in Kumarsain, Himachal Pradesh.

I wish to bring to your notice as per Himachal Pradesh

covid guidelines dated 11.05.2020, any person

coming from the red zone is directed to be in

institutional quarantine for a period of 14 days. Since

I reside in New Delhi which is currently a red zone, I

would be forced to be in quarantine for a period of 14

days.

Further, I wish to bring to your kind notice that I am

66 plus years old. Therefore, as per MOH guidelines,

all citizens of 65 plus age are asked not to travel due

to health safety risks.

Further I suffer from Thalassemia minor with Iron

deficiency anaemia, pancytopenia (low red & white

blood cell and low platelet count), chronic liver

disease with portal hypertension & splenomegaly,

diabetes and hypothyroidism. I also have oesophageal

varices with a high risk of bleeding. Therefore doctors

have stated that stepping out of my house would be

life endangering. I am attaching my medical

certificate herewith.

Meanwhile, I would join the investigation through

email or any other online mechanism.”

While issuing notice in the petition, the Order dated 14.06.2020

recorded further: -

“Mr. Vikas Singh, learned Senior Counsel appearing for the

petitioner submitted that the Himachal Pradesh Police had

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

contacted the petitioner day before yesterday in connection

with the investigation in the crime referred to above.

Considering the circumstances on record, we deem it

appropriate to direct as under:

(a) Pending further orders, the petitioner shall not be arrested

in connection with the present crime;

(b) However, the petitioner in terms of the offer made by him

in his communication dated 12.06.2020, shall extend full

cooperation through Video Conferencing or Online mode;

and

the investigation including interrogation of the petitioner at

his residence after giving him prior notice of 24 hours and

complying with the Social Distancing norms prescribed

during Covid-19 Pandemic.

The affidavit in reply filed on behalf of the State shall

indicate the steps taken during investigation and a complete

Status Report shall be filed before the next date of hearing.

The concerned Investigating Officer shall remain personally

present in case the open Court hearing is resumed by this

Court or shall be available in case the proceedings are taken

up through Video Conferencing mode.”

5. Some of the grounds raised in the instant writ petition relating to

the prayers quoted hereinabove are:

“A. Because the contents in the video is pure and

simple critical analysis by the Petitioner of the functioning

of the Government and cannot by any stretch of

imagination be said to be offences under Sections 124-A,

268, 501, 505 of IPC.

B. Because the decisive ingredient for establishing

the offence of sedition under Section 124-A IPC is the

doing of certain acts which would bring to the Government

established by law in India hatred or contempt etc. which

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

would incite violence or create public disorder. In the

present case, there is not even a suggestion that the

Petitioner did anything against the Government of India or

any other Government of the State.

R. Because seeking quashing of the FIR dated

06.05.2020 is part prayer, the petitioner through this

petition is also seeking guidelines from this Hon’ble Court

in respect of lodging of FIRs against persons belonging to

the media of a particular standing as done in the case of

medical professionals vide judgment in Jacob Mathew v.

State of Punjab (2005) 6 SCC 1 para 51, 52 affirmed by the

Constitution Bench Judgment in Lalita Kumari v.

Government of Uttar Pradesh and others (2014) 2 SCC 1

para 115.”

6. The affidavit in reply filed on behalf of the State referred to

Sections 52 and 54 of the DM Act1

as under:

“At this juncture, it may be noticed that the entire world is

passing through an unprecedented international crises in the

form of a pandemic. India also is no exception. In case of a

pandemic, any false news necessarily have a tendency of

creating panic and, therefore, the Disaster Management Act

provides for certain offences and penalties. Sections 52 and

54 of the Disaster Management Act read as under:-

“Section 52. Punishment for false claim.-

Whoever knowingly makes a claim which he

knows or has reason to believe to be false for

obtaining any relief, assistance, repair,

reconstruction or other benefits consequent to disaster

from any officer of the Central Government, the State

Government, the National Authority, the State

Authority or the District Authority, shall, on

conviction be punishable with imprisonment for a

term which may extend to two years, and also with

fine.

1 The Disaster Management Act, 2005

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

Section 54. Punishment for false warning.-

Whoever makes or circulates a false alarm or warning

as to disaster or its severity or magnitude, leading to

panic, shall on conviction, be punishable with

imprisonment which may extend to one year or with

fine.”

Thereafter, the affidavit indicated following steps taken by the

Investigating machinery:

“Having found that complaint disclosed cognizable offence,

the FIR was registered. In respectful submission of the

respondent, since a FIR discloses prima facie commission of

cognizance offence, no interference may be warranted.

That after registration of FIR, on 07.05.2020 the

complainant was called in the Police Station but he did not

appear as he was out of station. On 08.05.2020 complainant

joined the investigation in the Police Station and produced

one DVD containing telecast dated 30.03.2020 as referred in

the FIR which was taken into possession by the Investigating

Officer through seizure memo and statement of Sh. Ajay

Shyam was recorded u/s 161 Cr.P.C.

That on 11.05.2020, Investigating Officer visited Cyber

Crime Police Station from where Notice u/sec 91 Cr.P.C.

was sent to Google and YouTube through e-mail for

obtaining information in respect to URL of the channel and

URL of the post.”

7. The original complainant (Respondent No.3) stated in his response

as under:

“It is submitted that, on 30.03.2020, the petitioner in his

show, ‘The Vinod Dua Show’ telecasted on You Tube in

Episode No.255 made false allegations regarding

preparedness for the pandemic Covid-19 which were clearly

in violation of Sections 124-A, 268, 501 and 505 IPC. The

entire content/transcript of the episode has been reproduced

in the Writ Petition at pages 45 onwards at Annexure A-2.

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

It is submitted that, on 21.04.2020, when the respondent was

surfing on the internet on his mobile that, he had the occasion

to watch the said alleged video of the petitioner. He strongly

felt that the contents of the video had a tendency to create

disturbance of public peace against the government

established by law.

……

It is submitted that, in the present case, prima facie the

offences u/s 124-A, 268, 501 and 505 of the IPC are clearly

made out and more serious offences will emerge once the

material supplied by the answering respondent is

investigated, and therefore, there is no ground for quashing

the present FIR. If the statements in the video are seen in its

entirety, then the mala fide intention of the petitioner is

apparent and all is being said to incite people and create

disaffection and hatred in the minds of the people against the

Government of India and that too during these difficult times

of pandemic Covid-19.”

Respondent No.3 then referred to the other episodes of talk show of

the petitioner uploaded on 02.03.2020, 31.03.2020, 01.04.2020 and

01.06.2020 to emphasize the alleged tendency on part of the petitioner of

making statements which were devoid of truth.

8. The Status Report placed for perusal of this Court in pursuance of

the order dated 14.06.2020, inter alia, gave details about HW News owned

by Theo Connect Private Ltd.

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

9. Appearing for the petitioner, Mr. Vikas Singh, learned Senior

counsel submitted: -

A) The statements in the FIR that, “Hon’ble Prime Minister used

threats and terror acts to garner votes”; and “Prime Minister garnered votes

through act of terrorism” were factually incorrect. No such assertions were

made by the petitioner.

B) The basic allegations in the FIR were required to be seen in the light

of the law laid down by this Court in Kedar Nath Singh vs. State of Bihar2

and subsequent cases. Viewed thus, the provisions of Section 124A of the

IPC3 would not get attracted at all.

C) As a journalist, the petitioner was entitled to and did nothing more

than critical analysis of the functioning of the Government.

D) The ingredients constituting offences under Sections 501 and 505

of the IPC3 were also not established.

(1962) Supp. 2 SCR 769

3 The Indian Penal Code, 1860

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

E) Consequently, the criminal proceedings initiated against the

petitioner being abuse of the process and being violative of the fundamental

rights guaranteed under the Constitution of India, the same be quashed.

10. In support of the second prayer made in the petition, Mr. Singh

submitted: -

In Jacob Mathew v. State of Punjab and Another4

, this Court

issued certain guidelines with regard to prosecution of Medical

Professionals accused of rashness or negligence while discharging their

professional duties; which decision was not only affirmed by the

Constitution Bench of this Court in Lalita Kumari v. Government of Uttar

Pradesh and Others5 but this Court went on to explain that a preliminary

inquiry could validly be insisted upon in certain categories of cases. The

case of journalists as a category be considered on similar lines, so that the

journalists can, without any hindrance or fear of unwarranted prosecution

fulfil their duties. The protection suggested in the second prayer would

afford and ensure protection against such unwarranted prosecutions.

11. Mr. Tushar Mehta, learned Solicitor General of India appeared for

State of Himachal Pradesh and submitted: -

(2005) 6 SCC 1

(2014) 2 SCC 1

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

A) The instant petition under Article 32 of the Constitution of India,

seeking quashing of the FIR may not be entertained and the petitioner be

relegated to remedies available under the Code6

B) At the present stage, the allegations made in the FIR were required

to be presumed to be true and the matter be allowed to be investigated into.

C) The attempts on part of the petitioner were to spread

misinformation or incorrect information and cause panic in the perception

of the general public; for example, the statement that some people feared

that there could be food riots post lockdown was without any basis and had

clear potential of spreading panic. Such action would be covered and be

punishable under Sections 52 and 54 of the DM Act1

D) Whether such statements were deliberate or unintended and

innocent assertions, would be a matter for investigation and as such no case

was made out for interference at the present stage.

E) The episode in question was uploaded on 30.03.2020 and migrant

workers in many metropolitan cities and towns had started walking towards

6 The Code of Criminal Procedure, 1973

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

their hometowns seriously jeopardising their own health and safety and that

of the society in general.

12. In response to the second prayer, it was submitted by the Solicitor

General: -

The direction as prayed for, if granted would result in overstepping

the field and area reserved for the Legislature. Any preliminary inquiry as

suggested by the petitioner, would be clearly opposed to law and not

sanctioned or permitted by law.

13. Mr. S.V. Raju, learned Additional Solicitor General who appeared

for Union of India, submitted: -

A) The matter would additionally come under Section 188 read with

Section 511 of the IPC3

as the statements made by the petitioner were in the

nature of incitement to disobey the orders passed by the concerned

authorities pursuant to lockdown including the order dated 31.03.20207

passed by this Court.

B) The bar under Section 195 of the Code with respect to cases falling

under Section 188 of the IPC3 would be relatable to the stage of cognizance

7 Writ Petition (C) No.468 of 2020 (Alakh Alok Srivastava v. Union of India)

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

by Court and not to anterior stages and as such the matter be allowed to be

investigated into.

C) Norms of Journalistic Conduct framed by the Press Council of

India (2010 Edition) obliged the petitioner to check the facts and data

thoroughly from authentic sources and only thereafter he could make any

publication relating to the pandemic in a manner which was bereft of

sensationalization or exaggeration. The conduct of the petitioner was

completely wanting in this respect.

Paragraph 39 of said Norms, on which reliance was placed, reads:-

“39. Reporting on Natural Calamities

(i) Facts and data relating to spread of epidemics or natural

calamities shall be checked up thoroughly from authentic

sources and then published with due restraint in a manner

bereft of sensationalism, exaggeration, surmises or

unverified facts.

(ii) Natural or manmade hazards become disasters through

acts of commission and omission of the society. Therefore,

the disastrous impact can be minimized by preventive action

taken by all the stakeholders including the media.

(iii) Media should give wide publicity to the do’s and don’ts

and the potential benefits of disaster mitigation so that the

society follows them before, during and after the occurrence

of the disasters. People should be detailed on standard

guidelines. The issues of children and women which are the

most vulnerable groups during and after disaster should be

handled carefully by the media.

(iv) It is necessary to have complete cooperation between

the media and all governmental and non-governmental

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

agencies. The extent of the coordination and cooperation

between them determines the nature, the degree and the scale

of the preparedness to prevent or meet the disasters.”

14. Mr. Mahesh Jethamalani and Mr. Vinay Navre, learned Senior

Advocates for respondent No.3 reiterated the submissions on behalf of the

State and the Union and submitted that the severity and magnitude of the

pandemic called for strict adherence to the journalistic standards and

observance of restraint; that it was the fake and inaccurate reporting that

triggered the migration of workers; that the petitioner definitely intended to

disrupt the public order and that his intention was apparent from statements

that there could be food shortage resulting in food riots. In the written

submissions filed by respondent No.3, the Order dated 24.03.2020 and

Guidelines dated 28.03.2020 were highlighted and relied upon to submit

that by spreading false information regarding shortage of food, medical and

other essential services, the petitioner had contravened the Order dated

24.03.2020 and Guidelines dated 28.03.2020 and thereby committed

offences punishable under Sections 188, 153, 124A and 503(b) of the IPC3

15. In rejoinder, Mr. Singh repelled the arguments advanced by the

respondents and the essence of his contentions as found in the written

submissions was: -

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

A) The video of the telecast if watched in its entirety would show that

the intent of the petitioner was to reaffirm the highest standard of journalism

and independence of the media. The petitioner did his duty to bring forth

the dispassionate and critical appraisal of the Government. His actions were

fully covered by Explanations 2 and 3 of Section 124A, IPC3

and exception

to Section 505 IPC3

and were within his Right of Free Speech and

Expression guaranteed under Article 19 (1)(a) of the Constitution of India.

B) The complainant along with the State brought down their case from

Section 124-A and Section 505 to Section 188 IPC3

in their attempt to show

that some cognizable offence was committed by the petitioner. The

allegation that the petitioner disobeyed the order dated 31.03.20207 passed

by this Court was rather absurd as the telecast was issued prior to the

directions of this Court.

C) The offences under the DM Act1

and Section 188 of the IPC3 were

not made out and, in any case, in the absence of a complaint in terms of

Section 60 of the DM Act1

and Section 195 of the Code, the submissions

made by the respondents called for rejection.

D) Further, the order dated 31.03.20207 gave liberty to the media to

have a free discussion about the pandemic; and that there was no unverified

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

news nor was there any disobedience by the Petitioner. The information in

the telecast was based on the information available in the public domain.

The interview of former Chief Statistician, Mr. Pronab Sen reported on

28.3.2020 and the notification dated 19.3.2020 and 24.3.2020 prohibiting

export of surgical masks, ventilators and sanitizers were also placed on

record.

In support of the contention that the petitioner had been a journalist

of some standing, following awards / recognitions received by the petitioner

were highlighted in the written submissions: -

“i. Padma Shri for Excellence in Journalism by the Hon’ble

President of India.

ii. The B.D. Goenka award for excellence in journalism,

instituted by Late Shri Ram Nath Goenka and decided by an

eminent jury comprising Justice Sujata Manohar, Justice

Bakhtawar Lentin and Jurist Nani Palkhiwala.

iii. Haldighati Award for excellence in journalism by the

Maharana Mewar Foundation.

iv. The RedInk Life Time Achievement Award by the

Mumbai Press Club.

v. Conferred with D.Litt. (Honoris Causa) by ITM

University, Gwalior.”

Finally, in support of the second prayer, the written submissions

stated: -

“There would be similarity between the case of Jacob

Mathews (2005) 6 SCC 1 and the present case as a large

number of TV journalists had been prosecuted in the recent

past. More than 56 FIR were registered against TV

journalists. Explanations 2 and 3 under Section 124-A IPC

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

would clearly exempt media persons from the commission

of the said offence and also the Exception under Section 505

IPC would exempt media persons acting in good faith, from

the offence under said Section.”

16. In the written submissions filed on behalf of respondent No.3, the

relevant text of communications dated 24.03.2020 and 28.03.2020 was set

out as under: -

“f. On 24.03.2020, the Ministry of Home Affairs issued a

public order proclaiming that in view of the orders that had

been issued under the Disaster Management Act, 2005

(lockdown measures) which read as under:

“1. In the wake of the orders that have been issued under

the Disaster Management Act, 2005, there are possibilities

of rumour mongering, including those relating to shortage

of food and other essential services and commodities.

2. In this context, it is imperative that all State Governments

and Union Territory Administrations take necessary steps

to suitably publicise through all available means that food,

medical and civil supplies, and other essential services will

be maintained and there are adequate supplies available in

the country.

3. It is also requested that provisions of the Guidelines

issued in this regard, on the measures to be taken for

containment of COVID-19 epidemic in the country, as

annexure to MHA Order No.40-3/2020-D dated 24.03.2020

may be suitably disseminated amongst the public. All

measures may be taken to allay apprehensions and maintain

peace and tranquillity.”

g. On 26.03.2020 the PM had announced Pradhan Mantri

Garib Kalyan Anna Yojna under which 5 Kg of Rice or

wheat (according to regional dietary preferences) per person

and 1 kg of dal would be provided to each family holding a

ration card. This successful scheme covers 80 crore people

and has now been extended till November 2020. It is

recognised inter alia by the WHO as the largest food security

programme in the world.

h. Two days before impugned telecast by the Petitioner, the

MHA issued Consolidated Guidelines on 28.03.2020. As per

guidelines:

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

“2. Offices of the State/Union Territory Governments, their

Autonomous Bodies, Corporations, etc. shall remain

closed.

Exceptions:

h. Agencies engaged in procurement of agriculture

products, including MSP operations.

i. ‘Mandis’ operated by the Agriculture Produce Market

Committee or as notified by the State Government.

4. Commercial and private establishments shall be closed

down.

Exceptions:

a. Shops, including ration shops (under PDS), dealing with

food, groceries, fruits and vegetables, dairy and milk

booths, meat and fish, animal fodder, fertilizers, seeds and

pesticides. However, district authorities may encourage and

facilitate home delivery to minimize the movement of

individuals outside their homes.

6. All transport services – air, rail, roadways – will remain

suspended.

Exceptions:

a. Transportation for essential good only.

…. ….. …..

e. Cross land border movement of essential goods including

petroleum products and LPG, food products, medical

supplies.

f. Intra and inter-state movement of harvesting and sowing

related machines like combined harvester and other

agriculture/horticulture implements.”

i. The orders of 24.03.2020 as also the consolidated

guidelines of 28.03.2020 are both orders duly promulgated

by public servants and disobedience to them by any person

renders that person liable to punishment u/s 188 IPC. In

Alakh Alok Srivastava vs. Union of India, this Hon’ble

Court, in its order dated 31.03.2020 (Coram: Hon’ble Chief

Justice and Hon’ble Justice Nageswara Rao) held as under:

“Disobedience to an order promulgated by a public servant

would result in punishment under Section 188 of the Indian

Penal Code. An advisory which is in the nature of an order

made by the public authority attracts Section 188 of the

Indian Penal Code.”

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

In spreading manifestly false information and rumour

mongering regarding shortages in the country of food,

medical and other essential services, the Petitioner has

contravened the said orders of 24.03.2020 and 28.03.2020.”

It was further stated:-

“Neither in the petition nor in his written submission has the

petitioner denied that he had knowledge of the advisory of

24.3.2020 and the consolidated guidelines issued by the

MHA on 28.3.2020 nor of the Pradhan Mantri Garib Kalyan

Anna Yojna announced on 26.3.2020. The petitioner

telecast on 30.3.2020, as well as at least three subsequent

telecasts from April to June, 2020 dealt with the prevailing

COVID situation and the Governments’ response to the

developing pandemic. While dealing with so sensitive

subject on more than one occasion, it was incumbent upon

the petitioner as a responsible journalist and by virtue of the

Press Council Norms to keep himself abreast with

Government orders, guidelines pertaining to the pandemic.

Indeed, his telecast and written submission indicate that he

had express knowledge of some Government notifications,

issued prior to the telecast of 30.3.2020.”

17. At the outset, we must consider whether the instant challenge raised

through a petition under Article 32 of the Constitution and the prayers made

in the petition can be entertained and considered specially when the

investigation into the alleged crime has not yet resulted in a report under

Section 173 of the Code.

18. It is the contention of the respondents that the petitioner be

relegated to the remedies under the Code rather than entertain the instant

petition under Article 32 of the Constitution. Since the first prayer in the

petition seeks quashing of the FIR, reliance is placed on the decision of this

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

Court in Arnab Ranjan Goswami vs. Union of India and Others8

in which

the relief was granted against multiple FIRs arising from the same

television show and pending at places other than Mumbai but this Court

refused to exercise jurisdiction under Article 32 of the Constitution for the

purpose of quashing the basic FIR registered at Mumbai. The relevant

discussion in that behalf was: -

“39. A litany of our decisions — to refer to them individually

would be a parade of the familiar — has firmly established

that any reasonable restriction on fundamental rights must

comport with the proportionality standard, of which one

component is that the measure adopted must be the least

restrictive measure to effectively achieve the legitimate State

aim. Subjecting an individual to numerous proceedings

arising in different jurisdictions on the basis of the same

cause of action cannot be accepted as the least restrictive and

effective method of achieving the legitimate State aim in

prosecuting crime. The manner in which the petitioner has

been subjected to numerous FIRs in several States, besides

the Union Territories of Jammu and Kashmir on the basis of

identical allegations arising out of the same television show

would leave no manner of doubt that the intervention of this

Court is necessary to protect the rights of the petitioner as a

citizen and as a journalist to fair treatment (guaranteed by

Article 14) and the liberty to conduct an independent

portrayal of views. In such a situation to require the

petitioner to approach the respective High Courts having

jurisdiction for quashing would result into a multiplicity of

proceedings and unnecessary harassment to the petitioner,

who is a journalist.

40. The issue concerning the registration of numerous FIRs

and complaints covering different States is however, as we

will explain, distinct from the investigation which arises

from FIR No. 164 of 2020 at N.M. Joshi Marg Police Station

in Mumbai. The petitioner, in the exercise of his right under

Article 19(1)(a), is not immune from an investigation into

(2020) 14 SCC 12

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

the FIR which has been transferred from Police Station

Sadar, District Nagpur City to N.M. Joshi Marg Police

Station in Mumbai. This balance has to be drawn between

the exercise of a fundamental right under Article 19(1)(a)

and the investigation for an offence under the CrPC. All

other FIRs in respect of the same incident constitute a clear

abuse of process and must be quashed.

….. ….. …..

57. We hold that it would be inappropriate for the Court to

exercise its jurisdiction under Article 32 of the Constitution

for the purpose of quashing FIR No. 164 of 2020 under

investigation at N.M. Joshi Marg Police Station in Mumbai.

In adopting this view, we are guided by the fact that the

checks and balances to ensure the protection of the

petitioner's liberty are governed by the CrPC. Despite the

liberty being granted to the petitioner on 24-4-20209

, it is an

admitted position that the petitioner did not pursue available

remedies in the law, but sought instead to invoke the

jurisdiction of this Court. Whether the allegations contained

in the FIR do or do not make out any offence as alleged will

not be decided in pursuance of the jurisdiction of this Court

under Article 32, to quash the FIR. The petitioner must be

relegated to the pursuit of the remedies available under the

CrPC, which we hereby do. The petitioner has an equally

efficacious remedy available before the High Court. We

should not be construed as holding that a petition under

Article 32 is not maintainable. But when the High Court has

the power under Section 482, there is no reason to by-pass

the procedure under the CrPC, we see no exceptional

grounds or reasons to entertain this petition under Article 32.

There is a clear distinction between the maintainability of a

petition and whether it should be entertained. In a situation

like this, and for the reasons stated hereinabove, this Court

would not like to entertain the petition under Article 32 for

the relief of quashing the FIR being investigated at N.M.

Joshi Police Station in Mumbai which can be considered by

the High Court. Therefore, we are of the opinion that the

petitioner must be relegated to avail of the remedies which

are available under the CrPC before the competent court

including the High Court.” (Emphasis supplied)

Arnab Ranjan Goswami v. Union of India, (2020) 14 SCC 51

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

The further contention is that there are no exceptional grounds or

reasons for entertaining the petition under Article 32 of the Constitution nor

is there any reason to bypass the procedure under the Code.

19. Reliance is also placed on the decision of this Court in Amish

Devgan vs. Union of India and Others10 which in turn referred to the

decisions of this Court in State of H.P. vs. Pirthi Chand and Another11 and

State of UP vs. OP Sharma12 as well as the decision in Arnab Ranjan

Goswami

. In Amish Devgan10

, this Court did not refuse to entertain the

petition at the threshold but proceeded to consider the issues on merits and

finally declined the prayer made by the petitioner for quashing of the FIRs.

The following observations are noteworthy: -

“118. We respectfully agree with the aforesaid ratio.

Ordinarily we would have relegated the petitioner and asked

him to approach the concerned High Court for appropriate

relief, albeit in the present case detailed arguments have been

addressed by both sides on maintainability and merits of the

FIRs in question and, therefore, been dealt with by us and

rejected at this stage. We do not, in view of this peculiar

circumstance, deem it appropriate to permit the petitioner to

open another round of litigation; therefore, we have

proceeded to answer the issues under consideration.”

(Emphasis supplied)

(2021) 1 SCC 1

11 (1996) 2 SCC 37

(1996) 7 SCC 705

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

At the same time, there is a line of cases in which even while

exercising jurisdiction under Article 32 of the Constitution of India, this

Court was pleased to quash the concerned FIRs; some such cases being: -

(i) Vijay Shekhar and Another vs. Union of India and Others13

(ii) Rini Johar and Another vs. State of Madhya Pradesh and

Others14

(iii) Monica Kumar and Another vs. State of Uttar Pradesh and

Others15

(iv) Priya Prakash Varrier and Others vs. State of Telangana

and Another16

(v) Laxmibai Chandaragi B. and Another vs. State of

Karnataka and Others17

20. In Priya Prakash Varrier16, the nature of relief claimed was set out

in paragraph 1 of the decision whereafter this Court relied upon the dictum

of the Constitution Bench in Ramji Lal Modi vs. State of U.P.18 that for an

offence to come within the parameters of Section 295-A of the IPC3

, the

(2004) 4 SCC 666

(2016) 11 SCC 703

(2017) 16 SCC 169

(2019) 12 SCC 432

(2021) 3 SCC 360

AIR (1957) SC 620

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

crime ought to have been committed with deliberate and malicious intention

of outraging the religious feelings of a class. Finding such element to be

completely absent, the relief prayed for was granted by this Court. The

relevant observations of this Court were:-

“1. In the instant writ petition preferred under Article 32 of

the Constitution of India, the petitioners, namely, the actor,

producer and director of the movie, have prayed for quashing

of FIR No. 34 of 2018, dated 14-2-2018, registered at

Falaknama Police Station, Hyderabad, Telangana. That

apart, a prayer has also been made that no FIR should be

entertained or no complaint under Section 200 of the Code

of Criminal Procedure, 1973 should be dealt with because of

the picturisation of the song “Manikya Malaraya Poovi” by

Petitioner 1 in the film, namely, “Oru Adaar Love”.

7. It is worthy to note here that the constitutional validity

of the said provision was assailed before this Court and a

Constitution Bench in Ramji Lal Modi v. State of U.P.17

spoke thus: (AIR pp. 622-23, paras 8-9)

“8. It is pointed out that Section 295-A has been

included in Chapter XV, Penal Code which deals with

offence relating to religion and not in Chapter VIII

which deals with offences against the public

tranquillity and from this circumstance it is faintly

sought to be urged, therefore, that offences relating to

religion have no bearing on the maintenance of public

order or tranquillity and consequently a law creating

an offence 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. A reference to Articles 25 and 26 of the

Constitution, which guarantee the right to freedom of

religion, will show that the argument is utterly

untenable. The right to freedom of religion assured by

those articles is expressly made subject to public

order, morality and health. Therefore, it cannot be

predicated that freedom of religion can have no

bearing whatever on the maintenance of public order

or that a law creating an offence relating to religion

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

cannot under any circumstances be said to have been

enacted in the interests of public order. Those two

articles in terms contemplate that restrictions may be

imposed on the rights guaranteed by them in the

interests of public order.

9. The learned counsel then shifted his ground and

formulated his objection in a slightly different way.

Insults to the religion or the religious beliefs of a class

of citizens of India, may, says the learned counsel,

lead to public disorders in some cases, but in many

cases they may not do so and, therefore, a law which

imposes restrictions on the citizens’ freedom of

speech and expression by simply making insult to

religion an offence will cover both varieties of insults

i.e. those which may lead to public disorders as well

as those which may not. The law insofar as it covers

the first variety may be said to have been enacted in

the interests of public order within the meaning of

clause (2) of Article 19, but insofar as it covers the

remaining variety will not fall within that clause. The

argument then concludes that so long as the

possibility of the law being applied for purposes not

sanctioned by the Constitution cannot be ruled out,

the entire law should be held to be unconstitutional

and void. We are unable, in view of the language used

in the impugned section, to accede to this argument.

In the first place clause (2) of Article 19 protects a law

imposing reasonable restrictions on the exercise of

the right to freedom of speech and expression “in the

interests of public order”, which is much wider than

“for maintenance of” public order. If, therefore,

certain activities have a tendency to cause public

disorder, a law penalising such activities as an offence

cannot but be held to be a law imposing reasonable

restriction “in the interests of public order” although

in some cases those activities may not actually lead to

a breach of public order. In the next place Section

295-A does not penalise any and every act of insult to

or attempt to insult the religion or the religious beliefs

of a class of citizens but it penalises only those acts of

insults to or those varieties of attempts to insult the

religion or the religious beliefs of a class of citizens,

which are perpetrated with the deliberate and

malicious intention of outraging the religious feelings

of that class. Insults to religion offered unwittingly or

carelessly or without any deliberate or malicious

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

intention to outrage the religious feelings of that class

do not come within the section. It only punishes the

aggravated form of insult to religion when it is

perpetrated with the deliberate and malicious

intention of outraging the religious feelings of that

class. The calculated tendency of this aggravated

form of insult is clearly to disrupt the public order and

the section, which penalises such activities, is well

within the protection of clause (2) of Article 19 as

being a law imposing reasonable restrictions on the

exercise of the right to freedom of speech and

expression guaranteed by Article 19(1)(a). Having

regard to the ingredients of the offence created by the

impugned section, there cannot, in our opinion, be

any possibility of this law being applied for purposes

not sanctioned by the Constitution. In other words,

the language employed in the section is not wide

enough to cover restrictions both within and without

the limits of constitutionally permissible legislative

action affecting the fundamental right guaranteed by

Article 19(1)(a) and consequently the question of

severability does not arise and the decisions relied

upon by learned counsel for the petitioner have no

application to this case.”

12. In Mahendra Singh Dhoni v. Yerraguntla

Shyamsundar19

, the justification for the registration of an

FIR under Section 295-A had come up for consideration

before this Court. Appreciating the act done by the petitioner

therein, the Court quashed the FIR for an offence under

Section 295-A IPC.

13. If the ratio of the Constitution Bench is appropriately

appreciated, the said provision was saved with certain riders,

inasmuch as the larger Bench had observed that the language

employed in the section is not wide enough to cover

restrictions, both within and without the limits of

constitutionally permissible legislative action affecting the

fundamental right guaranteed by Article 19(1)(a) of the

Constitution. The emphasis was laid on the aggravated form

of insult to religion when it is perpetrated with the deliberate

and malicious intention of outraging the religious feelings of

that class.

(2017) 7 SCC 760

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

….. ….. …..

15. In view of the aforesaid, we allow the writ petition and

quash FIR No. 34 of 2018. We also direct that no FIR under

Section 154 or any complaint under Section 200 of the Code

of Criminal Procedure should be entertained against the

petitioners because of the picturisation of the song.

However, there shall be no order as to costs.”

Notably, this decision rendered by a three Judge Bench of this Court

was in the context of right claimed under Article 19(1)(a) of the

Constitution, where the offence alleged was one under Section 295-A of the

IPC3

. Apart from quashing the FIR, this Court also directed that no FIR or

complaint should be entertained against the petitioners because of the

picturisation of the concerned song.

21. In the celebrated case of Romesh Thappar v. The State of

Madras20

, a Constitution Bench of this Court dealt with the preliminary

objection that instead of entertaining a petition under Article 32 of the

Constitution, the petitioner be asked to approach the High Court under

Article 226 of the Constitution, in following words:-

“ The Advocate-General of Madras appearing on behalf of

the respondents raised a preliminary objection, not indeed to

the jurisdiction of this Court to entertain the application

under article 32, but to the petitioner resorting to this Court

directly for such relief in the first instance. He contended

that, as a matter of orderly procedure, the petitioner should

first resort to the High Court at Madras which under

20 1950 SCR 594

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Vinod Dua vs. Union of India & Ors.

article 226 of the Constitution has concurrent jurisdiction to

deal with the matter. He cited criminal revision petitions

under section 435 of the Criminal Procedure Code,

applications for bail and applications for transfer under

section 24 of the civil Procedure Code as instances where,

concurrent jurisdiction having been given in certain matters

to the High Court and the Court of a lower grade, a rule of

practice has been established that a party should proceed first

to the latter Court for relief before resorting to the High

Court. He referred to Emperor v. Bisheswar Prasad Sinha21

where such a rule of practice was enforced in a criminal

revision case, and called our attention also to certain

American decisions Urquhart v. Brown22 and Hooney v.

Kolohan23, as showing that the Supreme Court of the United

States ordinarily required that whatever judicial remedies

remained open to the applicant in Federal and State Courts

should be exhausted before the remedy in the Supreme Court

- be it habeas corpus or certiorari - would be allowed. We

are of opinion that neither the instances mentioned by the

learned Advocate-General nor the American decisions

referred to by him are really analogous to the remedy

afforded by article 32 of the Indian Constitution. That article

does not merely confer power on this Court, as

article 226 does on the High Court, to issue certain writs for

the enforcement of the rights conferred by Part III or for any

other purpose, as part of its general jurisdiction. In that case

it would have been more appropriately placed among

articles 131 to 139 which define that jurisdiction.

Article 32 provides a "guaranteed" remedy for the

enforcement of those rights, and this remedial right is itself

made a fundamental right by being included in Part III. This

Court is thus constituted the protector and guarantor of

fundamental rights, and it cannot, consistently with the

responsibility so laid upon it, refuse to entertain applications

seeking protection against infringements of such rights. No

similar provision is to be found in the Constitution of the

United States and we do not consider that the American

decisions are in point.”

21 I.L.R. 56 All. 158

205 U.S. 179

294 U.S. 10

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Vinod Dua vs. Union of India & Ors.

22. The aforestated dictum was followed by another Constitution

Bench of this Court in Daryao and others v. The State of U.P. and others24

as under:

“ There can be no doubt that the fundamental right

guaranteed by Art. 32(1) is a very important safeguard for

the protection of the fundamental rights of the citizens, and

as a result of the said guarantee this Court has been entrusted

with the solemn task of upholding the fundamental rights of

the citizens of this country. The fundamental rights are

intended not only to protect individual's rights but they are

based on high public policy. Liberty of the individual and

the protection of his fundamental rights are the very essence

of the democratic way of life adopted by the constitution,

and it is the privilege and the duty of this Court to uphold

those rights. This Court would naturally refuse to

circumscribe them or to curtail them except as provided by

the Constitution itself. It is because of this aspect of the

matter that in Romesh Thappar v. The State of Madras20, in

the very first year after the Constitution came into force, this

Court rejected a preliminary objection raised against the

competence of a petition filed under Art. 32 on the ground

that as a matter of orderly procedure the petitioner should

first have resorted to the High Court under Art. 226, and

observed that "this Court in thus constituted the protector

and guarantor of the fundamental rights, and it cannot,

consistently with the responsibility so laid upon it, refuse to

entertain applications seeking protection against

infringements of such rights".”

23. In Jagisha Arora vs. State of Uttar Pradesh and Another25, this

Court entertained a petition under Article 32 of the Constitution against an

order of remand passed by the jurisdictional magistrate despite the

(1962) 1 SCR 574

25 (2019) 6 SCC 619

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

objection that the order must be challenged in accordance with the

provisions of the Code. The discussion was:-

“2. The fundamental rights guaranteed under the

Constitution of India and in particular Articles 19 and 21 of

the Constitution of India are non-negotiable.

3. The learned Additional Solicitor General appearing on

behalf of the State has opposed this allegation on various

technical grounds including the ground that there is an order

of remand passed by the jurisdictional Magistrate. It is also

contended that the High Court should have first been

approached.

4. Citing the judgment of this Court in State of

Maharashtra v. Tasneem Rizwan Siddiquee26, the learned

Additional Solicitor General argued that the question of

whether a writ of habeas corpus could be maintained in

respect of a person who was in police custody pursuant to a

remand order passed by the jurisdictional Magistrate in

connection with the offence under investigation, had already

been settled by this Court. This application, is, therefore not

maintainable. It was argued that the order of remand ought

to be challenged in accordance with the provisions of the

Criminal Procedure Code. It was also argued that this Court

does not ordinarily entertain writ petitions unless the High

Court has first been approached.

5. As a matter of self-imposed discipline and considering the

pressure of mounting cases on this Court, it has become the

practice of this Court to ordinarily direct that the High Court

first be approached even in cases of violation of fundamental

rights. However, Article 32 which is itself a fundamental

right cannot be rendered nugatory in a glaring case of

deprivation of liberty as in the instant case, where the

jurisdictional Magistrate has passed an order of remand till

22-6-2019 which means that the petitioner's husband

Prashant Kanojia would be in custody for about 13/14 days

for putting up posts/tweets on the social media.

26 (2018) 9 SCC 745 : (2019) 1 SCC (Cri) 386

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Vinod Dua vs. Union of India & Ors.

6. We are not inclined to sit back on technical grounds. In

exercise of power under Article 142 of the Constitution of

India this Court can mould the reliefs to do complete justice.

7. We direct that the petitioner's husband be immediately

released on bail on conditions to the satisfaction of the

jurisdictional Chief Judicial Magistrate. It is made clear that

this order is not to be construed as an approval of the

posts/tweets in the social media. This order is passed in view

of the excessiveness of the action taken.”

24. Thus, the practice of directing that the High Court be approached

first even in cases of violation of fundamental rights, is more of a selfimposed discipline by this Court; but in glaring cases of deprivation of

liberty, this Court has entertained petitions under Article 32 of the

Constitution. We may, at this stage, also notice the following observations

made in Union of India vs. Paul Manickam and Another27:-

“22. Another aspect which has been highlighted is that

many unscrupulous petitioners are approaching this Court

under Article 32 of the Constitution challenging the order of

detention directly without first approaching the High Courts

concerned. It is appropriate that the High Court concerned

under whose jurisdiction the order of detention has been

passed by the State Government or Union Territory should

be approached first. In order to invoke the jurisdiction under

Article 32 of the Constitution to approach this Court directly,

it has to be shown by the petitioner as to why the High Court

has not been approached, could not be approached or it is

futile to approach the High Court. Unless satisfactory

reasons are indicated in this regard, filing of petition in such

matters directly under Article 32 of the Constitution is to be

discouraged.”

27 (2003) 8 SCC 342

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Vinod Dua vs. Union of India & Ors.

25. We have therefore considered the instant case in the light of the

principles emanating from all the aforementioned decisions.

Apart from the fact that the right claimed by the petitioner is one

under Article 19 (1) (a) of the Constitution which was in the forefront in

Romesh Thappar20

, Priya Prakash Varrier16

, Jagisha Arora25 and Amish

Devgan10 in our view, the second prayer made by the petitioner can

effectively be considered only in a writ petition. Going by the nature of the

second prayer, relegating the petitioner to file a petition under Article 226

of the Constitution, may not be appropriate. Rather, the issue must ideally

be settled by this Court. Consequently, we do not accept the preliminary

objection raised by the respondents and we proceed to deal with the merits

and consider the matter with respect to both the prayers.

26. After stating that in his Talk Show uploaded on 30.03.2020, the

petitioner had asserted that the Prime Minister used deaths and terror

attacks to garner votes and that the Prime Minister garnered votes through

acts of terrorism, the F.I.R. stated, “This directly amounts to inciting

violence amongst the citizens and will definitely disturb public tranquillity.

This is an act of instigating violence against the Government and the Prime

Minister.” It was also stated, “the petitioner creates panic amongst the

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Vinod Dua vs. Union of India & Ors.

public and disturbs public peace by trying to spread false information, such

as… the Government does not have enough testing facilities which is

absolutely false.”

According to the F.I.R. “…by making such false statements,

Mr.Vinod Dua spread fear amongst the people. This video will only create

a situation of unrest amongst the public which will result in panic and

people not obeying the lockdown to come out and hoard essentials which

is absolutely unnecessary.…. The rumours were spread with intent to cause,

or which is likely to cause, fear or alarm to the public or to any section of

the public, whereby any person may be induced to commit an offence

against the State or against the public tranquillity.”

27. On facts, it has been established that the statements attributed to the

petitioner that the Prime Minister had used deaths and terror attacks to

garner votes or that the Prime Minister had garnered votes through acts of

terrorism, were not made in the Talk Show. The true translation of the

original episode in Hindi, has been placed on record. No such assertions

find place in the true translation nor were any objections raised that the

translated version was in any way incorrect. The petitioner did say that the

air strikes by India on Balakot and attacks on Pathankot and Pulwama were

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

used as political events to garner votes but no allegations were made against

the Prime Minister as was stated in the F.I.R.

It is true that some of the portions of the Talk Show do assert that

there were not enough testing facilities; that there was no information as to

the quantum of PPE kits/ suits, N95 masks, and masks of three ply that were

available in the country; that the respiratory devices and sanitizers were

being exported till 24th March (2020) instead of keeping them for use in the

country; that the supply claims got disrupted due to blockage of roads; and

that the migrant workers was a huge issue. It was also asserted that with

supply claims being closed, some people had feared food riots, which had

not happened in the country. These statements were subject matter of

considerable debate by the learned Counsel and the principal question is

whether these statements were merely in the nature of critical appraisal of

the performance of the Government or were designed to create unrest

amongst the public.

28. The scope of section 124(A) of the IPC3 was considered by a

Constitution Bench of this Court in Kedar Nath Singh v. State of Bihar2

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Vinod Dua vs. Union of India & Ors.

28.1 The conviction of Kedar Nath Singh under Sections 124A and

505(b) of the IPC3 was affirmed by the High Court; and the view taken by

the High Court was paraphrased as under:

“In the course of his judgment, the learned Judge observed

that the subject-matter of the charge against the appellant

was nothing but a vilification of the Government; that it was

full of incitements to revolution and that the speech taken as

a whole was certainly seditious. It is not a speech criticising

any particular policy of the Government or criticising any of

its measures. He held that the offences both under Sections

124-A and 505(b) of the Indian Penal Code had been made

out.”

28.2 This Court dealt with the decisions in Bangobashi case (Queen

Empress v. Jogendra Chunder Bose28) and Queen-Empress v.

Balgangaddhar Tilak29

, as under:

“The first case in India that arose under the section is what

is known as the Bangobasi case (QueenEmpress v. Jogendra Chunder Bose28 which was tried by a

jury before Sir Comer Petheram, C.J. While charging the

jury, the learned Chief Justice explained the law to the jury

in these terms:

“Disaffection means a feeling contrary to affection, in

other words, dislike or hatred. Disapprobation means

simply disapproval. It is quite possible to disapprove

of a man's sentiments or action and yet to like him.

The meaning of the two words is so distinct that I feel

it hardly necessary to tell you that the contention of

Mr Jackson cannot be sustained. If a person uses

either spoken or written words calculated to create in

the minds of the persons to whom they are addressed

a disposition not to obey the lawful authority of the

Government, or to subvert or resist that authority, if

and when occasion should arise, and if he does so

28 (1892) I.L.R. 19 Cal. 35

29 (1898) I.L.R. 22 Bom. 112.

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with the intention of creating such a disposition in his

hearers or readers, he will be guilty of the offence of

attempting to excite disaffection within the meaning

of the section, though no disturbance is brought about

by his words or any feeling of disaffection, in fact,

produced by them. It is sufficient for the purposes of

the section that the words used are calculated to excite

feelings of ill-will against the Government and to

hold it up to the hatred and contempt of the people,

and that they were used with the intention to create

such feeling.”

The next case is the celebrated case of QueenEmpress v. Balgangadhar Tilak29 which came before the

Bombay High Court. The case was tried by a jury before

Strachey, J. The learned Judge, in the course of his charge to

the jury, explained the law to them in these terms:

“The offence as defined by the first clause is exciting

or attempting to excite feelings of disaffection to the

Government. What are ‘feelings of disaffection’? I

agree with Sir Comer Petheram in the Bangobasi

case that disaffection means simply the absence of

affection. It means hatred, enmity, dislike, hostility,

contempt and every form of ill-will to the

Government. ‘Disloyalty’ is perhaps the best general

term, comprehending every possible form of bad

feeling to the Government. That is what the law

means by the disaffection which a man must not

excite or attempt to excite; he must not make or try to

make others feel enmity of any kind towards the

Government. You will observe that the amount or

intensity of the disaffection is absolutely immaterial

except perhaps in dealing with the question of

punishment: if a man excites or attempts to excite

feelings of disaffection, great or small, he is guilty

under the section. In the next place, it is absolutely

immaterial whether any feelings of disaffection have

been excited or not by the publication in question. It

is true that there is before you a charge against each

prisoner that he has actually excited feelings of

disaffection to the Government. If you are satisfied

that he has done so, you will, of course, find him

guilty. But if you should hold that that charge is not

made out, and that no one is proved to have been

excited to entertain feelings of disaffection to the

Government by reading these articles, still that alone

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would not justify you in acquitting the prisoners. For

each of them is charged not only with exciting

feelings of disaffection, but also with attempting to

excite such feelings. You will observe that the section

places on absolutely the same footing the successful

exciting of feelings of disaffection and the

unsuccessful attempt to excite them, so that, if you

find that either of the prisoners has tried to excite such

feelings in others, you must convict him even if there

is nothing to show that he succeeded. Again, it is

important that you should fully realise another point.

The offence consists in exciting or attempting to

excite in others certain bad feelings towards the

Government. It is not the exciting or attempting to

excite mutiny or rebellion, or any sort of actual

disturbance, great or small. Whether any disturbance

or outbreak was caused by these articles, is absolutely

immaterial. If the accused intended by the articles to

excite rebellion or disturbance, his act would

doubtless fall within Section 124-A, and would

probably fall within other sections of the Penal Code.

But even if he neither excited nor intended to excite

any rebellion or outbreak or forcible resistance to the

authority of the Government, still if he tried to excite

feelings of enmity to the Government, that is

sufficient to make him guilty under the section. I am

aware that some distinguished persons have thought

that there can be no offence against the section unless

the accused either counsels or suggests rebellion or

forcible resistance to the Government. In my opinion,

that view is absolutely opposed to the express words

of the section itself, which as plainly as possible

makes the exciting or attempting to excite certain

feelings, and not the inducing or attempting to induce

to any course of action such as rebellion or forcible

resistance, the test of guilt. I can only account for such

a view by attributing it to a complete misreading of

the explanation attached to the section, and to a

misapplication of the explanation beyond its true

scope.”

28.3 This Court then considered the further proceedings taken up after

Balgangadhar Tilak was found guilty: -

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“……The Jury, by a majority of six to three, found Shri

Balgangadhar Tilak guilty. Subsequently, he, on conviction,

applied under clause 41 of the Letters Patent for leave to

appeal to the Privy Council. The application was heard by a

Full Bench consisting of Farran, C.J., Candy and Strachey,

JJ. It was contended before the High Court at the leave stage,

inter alia, that the sanction given by the Government was not

sufficient in law in that it had not set out the particulars of

the offending articles, and, secondly, that the Judge

misdirected the jury as to the meaning of the word

“disaffection” insofar as he said that it might be equivalent

to “absence of affection”. With regard to the second point,

which is the only relevant point before us, the Full Bench

expressed itself to the following effect:

“The other ground upon which Mr Russell has asked

us to certify that this is a fit case to be sent to Her

Majesty in Council, is that there has been a

misdirection, and he based his argument on one major

and two minor grounds. The major ground was that

the section cannot be said to have been contravened

unless there is a direct incitement to stir up disorder

or rebellion. That appears to us to be going much

beyond the words of the section, and we need not say

more upon that ground. The first of the minor points

is that Mr Justice Strachey in summing up the case to

the jury stated that disaffection meant the ‘absence of

affection’. But although if that phrase had stood alone

it might have misled the jury, yet taken in connection

with the context we think it is impossible that the jury

could have been misled by it. That expression was

used in connection with the law as laid down by Sir

Comer Petheram in Calcutta in the Bangaboshi case.

There the Chief Justice instead of using the words

absence of affection used the words ‘contrary to

affection’. If the words ‘contrary to affection’ had

been used instead of ‘absence of affection’ in this case

there can be no doubt that the summing up would

have been absolutely correct in this particular. But

taken in connection with the context it is clear that by

the words ‘absence of affection’ the learned Judge did

not mean the negation of affection, but some active

sentiment on the other side. Therefore on that point

we consider that we cannot certify that this is a fit case

for appeal.

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In this connection it must be remembered that it is not

alleged that there has been a miscarriage of justice.”

After making those observations, the Full Bench refused the

application for leave. The case was then taken to Her

Majesty in Council, by way of application for special leave

to appeal to the Judicial Committee. Before Their Lordships

of the Privy Council, Asquith, Q.C., assisted by counsel of

great experience and eminence like Mayne, W.C. Bannerjee

and others, contended that there was a misdirection as to the

meaning of Section 124-A of the Penal Code in that the

offence had been defined in terms too wide to the effect that

“disaffection” meant simply “absence of affection”, and that

it comprehended every possible form of bad feeling to the

Government. In this connection reference was made to the

observations of Petheram, C.J. in QueenEmpress v. Jogendra Chander Bose28

. It was also contended

that the appellant's comments had not exceeded what in

England would be considered within the functions of a

public journalist, and that the misdirection complained of

was of the greatest importance not merely to the affected

person but to the whole of the Indian press and also to all

Her Majesty's subjects; and that it injuriously affected the

liberty of the press and the right to free speech in public

meetings. But in spite of the strong appeal made on behalf

of the petitioner for special leave, the Lord Chancellor,

delivering the opinion of the Judicial Committee, while

dismissing the application, observed that taking a view of the

whole of the summing up they did not see any reason to

dissent from it, and that keeping in view the Rules which

Their Lordships observed in the matter of granting leave to

appeal in criminal cases, they did not think that the case

raised questions which deserve further consideration by the

Privy Council, (vide Gangadhar Tilak v. QueenEmpress.

”

28.4 Thereafter, the decision of the Federal Court in Niharendu Dutt

Majumdar v. The King Emperor31 was dealt with and it was noticed that

(1897) L.R. 25 I.A. 1.

31 (1942) F.C.R. 38

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the statement of law made by the Federal Court was not accepted by the

Privy Council. The discussion was: -

“While dealing with a case arising under Rule 34(6)(e) of the

Defence of India Rules under the Defence of India Act (35

of 1939), Sir Maurice Gwyer, C.J., speaking for the Federal

Court, made the following observations in the case

of Niharendu Dutt Majumdar v. King-Emperor31 and has

pointed out that the language of Section 124-A of the Indian

Penal Code, which was in pari materia with that of the Rule

in question, had been adopted from the English Law, and

referred with approval to the observations of Fitzerald, J., in

the case quoted above; and made the following observations

which are quite apposite;

“… generally speaking, we think that the passage

accurately states the law as it is to be gathered from

an examination of a great number of judicial

pronouncements.

The first and most fundamental duty of every

Government is the preservation of order, since order

is the condition precedent to all civilisation and the

advance of human happiness. This duty has no doubt

been sometimes performed in such a way as to make

the remedy worse than the disease; but it does not

cease to be a matter of obligation because some on

whom the duty rests have performed it ill. It is to this

aspect of the functions of Government that in our

opinion the offence of sedition stands related. It is the

answer of the State to those who, for the purpose of

attacking or subverting it, seek (to borrow from the

passage cited above) to disturb its tranquillity, to

create public disturbance and to promote disorder, or

who incite others to do so. Words, deeds or writings

constitute sedition, if they have this intention or this

tendency; and it is easy to see why they may also

constitute sedition, if they seek, as the phrase is, to

bring Government into contempt. This is not made an

offence in order to minister to the wounded vanity of

Government, but because where Government and the

law cease to be obeyed because no respect is felt any

longer for them, only anarchy can follow. Public

disorder, or the reasonable anticipation or likelihood

of public disorder, is thus the gist of the offence. The

acts or words complained of must either incite to

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disorder or must be such as to satisfy reasonable men

that that is their intention or tendency.”

This statement of the law was not approved by Their

Lordships of the Judicial Committee of the Privy Council in

the case of King-Emperor v. Sadashiv Narayan Bhalerao

The Privy Council, after quoting the observations of the

learned Chief Justice in Niharendu case31 while

disapproving of the decision of the Federal Court, observed

that there was no statutory definition of “sedition” in

England, and the meaning and content of the crime had to be

gathered from many decisions.”

(Emphasis supplied)

28.5 The conflict in the decision of the Federal Court and that of the

Privy Council was thereafter noticed by this Court as follows:

“Thus, there is a direct conflict between the decision of the

Federal Court in Niharendu case31 and of the Privy Council

in a number of cases from India and the Gold Coast, referred

to above. It is also clear that either view can be taken and can

be supported on good reasons. The Federal Court decision

takes into consideration, as indicated above, the pre-existing

Common Law of England in respect of sedition. It does not

appear from the report of the Federal Court decision that the

rulings aforesaid of the Privy Council had been brought to

the notice of Their Lordships of the Federal Court.”

28.6 The scope of section 124A of the IPC3 was considered thus: -

“The section was amended by the Indian Penal Code

Amendment Act (IV of 1898). As a result of the

amendment, the single explanation to the section was

replaced by three separate explanations as they stand now.

The section, as it now stands in its present form, is the result

of the several A.O.s of 1937, 1948 and 1950, as a result of

the constitutional changes, by the Government of India Act,

1935, by the Independent Act of 1947 and by the Indian

32 74 IA 89

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Constitution of 1950. Section 124A, as it has emerged after

successive amendments by way of adaptations as aforesaid,

reads as follows:

“Whoever by words, either spoken or written,

or by signs or by visible representation, or otherwise,

brings or attempts to bring into hatred or contempt, or

excites or attempts to excite disaffection towards the

Government established by law in India shall be

punished with transportation for life or any shorter

term to which fine may be added or with

imprisonment which may extend to three years, to

which fine may be added, or with fine.

Explanation 1. The expression “disaffection”

includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation

of the measures of the Government with a view to

obtain their alteration by lawful means, without

exciting or attempting to excite hatred, contempt or

disaffection do not constitute an offence under this

section.

Explanation 3, Comments expressing disapprobation

of the administrative or other action of the

Government without exciting or attempting to excite

hatred, contempt or disaffection, do not constitute an

offence under this section.”

This offence, which is generally known as the offence

of Sedition, occurs in Chapter VI of the Indian Penal Code,

headed ‘Of offences against the State’. This species of

offence against the State was not an invention of the British

Government in India, but has been known in England for

centuries. Every State, whatever its form of Government,

has to be armed with the power to punish those who, by their

conduct, jeopardise the safety and stability of the State, or

disseminate such feeling of disloyalty as have the tendency

to lead to the disruption of the State or to public disorder. In

England, the crime has thus been described by Stephen in his

Commentaries on the Laws of England, 21st Edition, volume

IV, at pages 141-142, in these words:

“Section IX. Sedition and Inciting to

Disaffection – We are now concerned with conduct

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which, on the one hand, fall short of treason, and on

the other does not involve the use of force or violence.

The law has here to reconcile the right of private

criticism with the necessity of securing the safety and

stability of the State. Sedition may be defined as

conduct which has, either as its object or as its natural

consequence, the unlawful display of dissatisfaction

with the Government or with the existing order of

society.

The seditious conduct may be by words, by

deed, or by writing. Five specific heads of sedition

may be enumerated according to the object of the

accused. This may be either.

1. to excite disaffection against the King,

Government, or Constitution, or against

Parliament or the administration of justice;

2. to promote by unlawful means, any alteration in

Church or State;

3. to incite a disturbance of the peace ;

4. to raise discontent among the King’s subjects ;

5. to excite class hatred.

It must be observed that criticism on political matters

is not of itself sedition. The test is the manner in

which it is made. Candid and honest discussion is

permitted. The law only interferes when the

discussion passes the bounds of fair criticism. More

especially will this be the case when the natural

consequence of the prisoner’s conduct is to promote

public disorder.”

This statement of the law is derived mainly from the

address to the Jury by Fitzerald, J., in the case

of Reg v. Alexander Martin Sullivan33. In the course of his

address to the Jury, the learned Judge observed as follows:

“Sedition is a crime against society, nearly allied to

that of treason and it frequently precedes treason by a

short interval. Sedition in itself is a comprehensive

term, and it embraces all those practices, whether by

word, deed or writing, which are calculated to disturb

the tranquillity of the State, and lead ignorant persons

to endeavour to subvert the Government and the laws

of the empire. The objects of sedition generally are to

induce discontent and insurrection, and stir up

33 (1867-71) 11 Cox's Criminal Law Cases, 44 at p. 45

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opposition to the Government, and bring the

administration of justice into contempt; and the very

tendency of sedition is to incite the people to

insurrection and rebellion. Sedition has been

described as disloyalty in action, and the law

considers as sedition all those practices which have

for their object to excite discontent or dissatisfaction,

to create public disturbance, or to lead to civil war; to

bring into hatred or contempt the Sovereign or the

Government, the laws or constitution of the realm,

and generally all endeavours to promote public

disorder.”

That the law has not changed during the course of the

centuries is also apparent from the following statement of

the law by Coleridge, J., in the course of his summing up to

the Jury in the case of Rex v. Aldred34:

“Nothing is clearer than the law on this head —

namely, that whoever by language, either written or

spoken, incites or encourages others to use physical

force or violence in some public matter connected

with the State, is guilty of publishing a seditious libel.

The word ‘sedition’ in its ordinary natural

signification denotes a tumult, an insurrection, a

popular commotion, or an uproar; it implies violence

or lawlessness in some form….”

In that case, the learned Judge was charging the Jury in

respect of the indictment which contained the charge of

seditious libel by a publication by the defendant.”

28.6.1 Finally, while considering the applicability of Section 124A of the

IPC3

, especially in the context of the Right guaranteed under Article

19(1)(a) of the Constitution, this Court concluded: -

“It has not been questioned before us that the

fundamental right guaranteed by Article 19(1)(a) of the

freedom of speech and expression is not an absolute right. It

is common ground that the right is subject to such reasonable

34 (1911-13) 22 Cox's Criminal Law Cases, 1 at p. 3

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restrictions as would come within the purview of clause (2),

which comprises (a) security of the State, (b) friendly

relations with foreign States, (c) public order, (d) decency or

morality, etc. etc. With reference to the constitutionality of

Section 124-A or Section 505 of the Indian Penal Code, as

to how far they are consistent with the requirements of clause

(2) of Article 19 with particular reference to security of the

State and public order, the section, it must be noted,

penalises any spoken or written words or signs or visible

representations, etc. which have the effect of bringing, or

which attempt to bring into hatred or contempt or excites or

attempts to excite disaffection towards the Government

established by law. Now, the expression “the Government

established by law” has to be distinguished from the persons

for the time being engaged in carrying on the administration.

“Government established by law” is the visible symbol of

the State. The very existence of the State will be in jeopardy

if the Government established by law is subverted. Hence,

the continued existence of the Government established by

law is an essential condition of the stability of the State. That

is why “sedition”, as the offence in Section 124-A has been

characterised, comes, under Chapter VI relating to offences

against the State. Hence, any acts within the meaning of

Section 124-A which have the effect of subverting the

Government by bringing that Government into contempt or

hatred, or creating disaffection against it, would be within

the penal statute because the feeling of disloyalty to the

Government established by law or enmity to it imports the

idea of tendency to public disorder by the use of actual

violence or incitement to violence. In other words, any

written or spoken words, etc. which have implicit in them

the idea of subverting Government by violent means, which

are compendiously included in the term “revolution”, have

been made penal by the section in question. But the section

has taken care to indicate clearly that strong words used to

express disapprobation of the measures of Government with

a view to their improvement or alteration by lawful means

would not come within the section. Similarly, comments,

however strongly worded, expressing disapprobation of

actions of the Government, without exciting those feelings

which generate the inclination to cause public disorder by

acts of violence, would not be penal. In other words,

disloyalty to Government established by law is not the same

thing as commenting in strong terms upon the measures or

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acts of Government, or its agencies, so as to ameliorate the

condition of the people or to secure the cancellation or

alteration of those acts or measures by lawful means, that is

to say, without exciting those feelings of enmity and

disloyalty which imply excitement to public disorder or the

use of violence.

It has not been contended before us that if a speech or

a writing excites people to violence or have the tendency to

create public disorder, it would not come within the

definition of “sedition”. What has been contended is that a

person who makes a very strong speech or uses very

vigorous words in a writing directed to a very strong

criticism of measures of Government or acts of public

officials, might also come within the ambit of the penal

section. But in our opinion, such words written or spoken

would be outside the scope of the section. In this connection,

it is pertinent to observe that the security of the State, which

depends upon the maintenance of law and order is the very

basic consideration upon which legislation, with a view to

punishing offences against the State, is undertaken. Such a

legislation has, on the one hand, fully to protect and

guarantee the freedom of speech and expression, which is

the sine qua non of a democratic form of Government that

our Constitution has established. This Court, as the

custodian and guarantor of the fundamental rights of the

citizens, has the duty cast upon it of striking down any law

which unduly restricts the freedom of speech and expression

with which we are concerned in this case. But the freedom

has to be guarded against becoming a licence for vilification

and condemnation of the Government established by law, in

words which incite violence or have the tendency to create

public disorder. A citizen has a right to say or write whatever

he likes about the Government, or its measures, by way of

criticism or comment, so long as he does not incite people to

violence against the Government established by law or with

the intention of creating public disorder. The Court has,

therefore, the duty cast upon it of drawing a clear line of

demarcation between the ambit of a citizen's fundamental

right guaranteed under Article 19(1)(a) of the Constitution

and the power of the legislature to impose reasonable

restrictions on that guaranteed right in the interest of, inter

alia, security of the State and public order. We have,

therefore, to determine how far the Sections 124-A and 505

of the Indian Penal Code could be said to be within the

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justifiable limits of legislation. If it is held, in consonance

with the views expressed by the Federal Court in the case

of Niharendu Dutt Majumdar v. King-Emperor31 that the

gist of the offence of “sedition” is incitement to violence or

the tendency or the intention to create public disorder by

words spoken or written, which have the tendency or the

effect of bringing the Government established by law into

hatred or contempt or creating disaffection in the sense of

disloyalty to the State, in other words bringing the law into

line with the law of sedition in England, as was the intention

of the legislators when they introduced Section 124-A into

the Indian Penal Code in 1870 as aforesaid, the law will be

within the permissible limits laid down in clause (2) of

Article 19 of the Constitution. If on the other hand we give

a literal meaning to the words of the section, divorced from

all the antecedent background in which the law of sedition

has grown, as laid down in the several decisions of the

Judicial Committee of the Privy Council, it will be true to

say that the section is not only within but also very much

beyond the limits laid down in clause (2) aforesaid.

In view of the conflicting decisions of the Federal

Court and of the Privy Council, referred to above, we have

to determine whether and how far the provisions of Sections

124-A and 505 of the Indian Penal Code have to be struck

down as unconstitutional. If we accept the interpretation of

the Federal Court as to the gist of criminality in an alleged

crime of sedition, namely, incitement to disorder or tendency

or likelihood of public disorder or reasonable apprehension

thereof, the section may lie within the ambit of permissible

legislative restrictions on the fundamental right of freedom

of speech and expression. There can be no doubt that apart

from the provisions of clause (2) of Article 19, Sections 124-

A and 505 are clearly violative of Article 19(1)(a) of the

Constitution. But then we have to see how far the saving

clause, namely, clause (2) of Article 19 protects the sections

aforesaid. Now, as already pointed out, in terms of the

amended clause (2), quoted above, the expression “in the

interest of … public order” are words of great amplitude and

are much more comprehensive then the expression “for the

maintenance of”, as observed by this Court in the case

of Virendra v. State of Punjab35. Any law which is enacted

35 (1958) SCR 308 at p. 317

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in the interest of public order may be saved from the vice of

constitutional invalidity. If, on the other hand, we were to

hold that even without any tendency to disorder or intention

to create disturbance of law and order, by the use of words

written or spoken which merely create disaffection or

feelings of enmity against the Government, the offence of

sedition is complete, then such an interpretation of the

sections would make them unconstitutional in view of

Article 19(1)(a) read with clause (2). It is well settled that if

certain provisions of law construed in one way would make

them consistent with the Constitution, and another

interpretation would render them unconstitutional, the Court

would lean in favour of the former construction. 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 have 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 words 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 Company Limited v. State of Bihar36

and (2) R.M.D. Chamarbaugwala v. Union of India37

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.

36 (1955) 2 SCR 603

37 (1957) SCR 930

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We may also consider the legal position, as it should

emerge, assuming that the main Section 124-A is capable of

being construed in the literal sense in which the Judicial

Committee of the Privy Council has construed it in the cases

referred to above. On that assumption, is it not open to this

Court to construe the section in such a way as to avoid the

alleged unconstitutionality by limiting the application of the

section in the way in which the Federal Court intended to

apply it? In our opinion, there are decisions of this Court

which amply justify our taking that view of the legal

position. This Court, in the case of R.M.D.

Chamarbaugwalla v. Union of India37 has examined in

detail the several decisions of this Court, as also of the courts

in America and Australia. After examining those decisions,

this Court came to the conclusion that if the impugned

provisions of a law come within the constitutional powers of

the legislature by adopting one view of the words of the

impugned section or Act, the Court will take that view of the

matter and limit its application accordingly, in preference to

the view which would make it unconstitutional on another

view of the interpretation of the words in question. In that

case, the Court had to choose between a definition of the

expression “Prize Competitions” as limited to those

competitions which were of a gambling character and those

which were not. The Court chose the former interpretation

which made the rest of the provisions of the Act, Prize

Competitions Act (42 of 1955), with particular reference to

Sections 4 and 5 of the Act and Rules 11 and 12 framed

thereunder, valid. The Court held that the penalty attached

only to those competitions which involved the element of

gambling and those competitions in which success depended

to a substantial degree on skill were held to be out of the

purview of the Act. The ratio decidendi in that case, in our

opinion, applied to the case in hand insofar as we propose to

limit its operation only to such activities as come within the

ambit of the observations of the Federal Court, that is to say,

activities involving incitement to violence or intention or

tendency to create public disorder or cause disturbance of

public peace.”

(Emphasis supplied)

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28.7 It may be noted here that the appeal of Kedar Nath Singh2 was

dismissed by this Court, affirming the view taken by the Courts below that

the speech, taken as a whole, was seditious.

28.8 This Court, thus, did not follow the decisions of the Privy Council

in Balgangadhar Tilak vs. Queen Empress30 and in King Emperor vs.

Sadashiv Narayan Bhalerao32 but held that the operation of Section 124A

of the IPC3 must be limited only to such activities as come within the ambit

of the observations of the Federal Court.

29. It may, therefore, be necessary to deal with the aforesaid decisions

of the Privy Council and that of the Federal Court in some detail.

30. Accused, Sadashiv Narayan Bhalerao had distributed certain

pamphlets on 26.01.1943 in respect of which he was tried for having

committed offence punishable under Rule 38(5) read with Rule 34 of the

Defence of India Rules. The relevant statutory provisions as quoted in the

decision of the Privy Council were :-

“The Defence of India Rules, which were made by the

Central Government under S. 2 of the Defence of India Act,

1939 (XXXV of 1939) - so far as material - provided as

follows :

"34.(6) prejudicial act' means any act which is

intended or is likely-

….. ….. …..

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(e) to bring into hatred or contempt, or to excite

disaffection towards, His Majesty or the Crown

Representative or the Government established by law

in British India or in any other part of His Majesty's

dominions;

….. ….. …..

(g) to cause fear or alarm to the public or to any

section of the public;

….. ….. …..

34.(7) ‘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;

….. ….. …..

38.(i) No person shall, without lawful authority or

excuse,

….. ….. …..

containing, or spread by any other means whatsoever,

any prejudicial report;

….. ….. …..

(5) If any person contravenes any of the provisions of

this rule, he shall be punishable with imprisonment

for a term which may extend to five years or with fine

or with both."

30.1 The trial Magistrate had acquitted the accused. The appeal by the

Crown having been dismissed, the matter was taken up before the Privy

Council. Some of the relevant passages from the decision of the Privy

Council were: -

“Their Lordships are unable to accept the test laid down by

the learned Chief Justice, as applicable in India.

Their Lordships agree, for the purposes of the present

appeal, that there is no material distinction between r. 34,

sub-r.6, sub-para. (e), and S. 124A, Penal Code, though it

might be suggested that the words "an act which is intended

or likely to bring" in the Rule are wider than the words

"brings or attempts to bring" in the Code. They further agree

with the learned Chief Justice that the omission in the rule of

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the three explanations in the Code should not lead to any

difference in construction.

The word "sedition" does not occur either in S. 124A or

in the Rule; it is only found as a marginal note to S. 124A,

and is not an operative part of the section, but merely

provides the name by which the crime defined in the section

will be known. There can be no justification for restricting

the contents of the section by the marginal note. In England

there is no statutory definition of sedition; its meaning and

content have been laid down in many decisions, some of

which are referred to by the Chief Justice, but these decisions

are not relevant when you have a statutory definition of that

which is termed sedition, as we have in the present case.

…. ….. …..

In Wallace-Joshnson v. The King38 under sub-s.8 of

S.326 of the Criminal Code of the Gold Coast, “seditious

intention” was defined as an intention “to bring into hatred

or contempt or to excite disaffection against. . . . . the

Government of the Gold Coast as by law established.” It was

held by this Board that the words were clear and

unambiguous, and that incitement to violence was not a

necessary ingredient of the crime of sedition as thereby

defined.

In conclusion, their Lordships will only add that the

amendments of S.124A in 1898, the year after Tilak’s case

(3), by the inclusion of hatred or contempt and the addition

of the second and third explanations, did not affect or alter

the construction of the section laid down in Tilak’s case (3),

and, in their opinion, if the Federal Court, in Niharendu’s

case (5) had given their attention to Tilak’s case (3), they

should have recognized it as an authority on the construction

of S.124A by which they were bound.

Their Lordship are accordingly of opinion that the

appeal should be allowed and that the judgments and orders

of the courts below should be set aside, and that it should be

declared that it is not an essential ingredient of a prejudicial

act as defined in sub-para. (e) of r.34, sub-r.6, of the Defence

of India Rules that it should be an act which is intended or is

likely to incite to public disorder.”

38 (1940) A.C. 231

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31. We may also note the submission39 made on behalf of

Balgangadhar Tilak before the Privy Council which was paraphrased in

the report as under: -

“Asquith, Q.C. (Mayne, G. H. Blair, and W.C. Bonnerjee

with him), for the petitioner, contended that this was a case

in which an appeal should be admitted. The misdirection as

to the meaning of Art.124A of the Penal Code raised a

question of great and general importance within the meaning

of Reg v. Bertrand. (1) The Judge’s direction was objected

to in that it defined the offence created by S.124A in terms

too wide, to the effect that disaffection meant simply absence

of affection, that it meant a feeling (not translated into overt

act) of hatred, enmity, dislike, hostility, contempt, and any

form of ill-will to the Government; that disloyalty was

perhaps the best term, and that it comprehended every

possible form of bad feeling to the Government; that a man

must not make or try to make others feel enmity of any kind

against the Government; that if a man expresses

condemnation of the measures legislative or executive of the

Government he was within his right, but that if he went

further and held up the Government itself to the hatred and

contempt of his readers by the imputation of motives or by

denouncing its foreign origin or character, that then he was

guilty under the Section. Reference was made to the

definition of the word “disaffection” by Petheram C.J. in

Queen Empress v. Jogendra Chunder Bose and Others23

It was contended that Tilak’s comments had not

exceeded what in England would be considered within the

functions of a public journalist. It was further contended that

the misdirection complained of was of the greatest

importance, not merely to the petitioner, but to the whole of

the Indian press, and also to all the Indian subjects of the

Crown. It affected injuriously the liberty of the press, the

right to free speech and public meeting, and the right to

petition for redress of grievances.”

39 (1897) LR 25 I.A. 1 at 6

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31.1 In this respect, the address40 made by Balgangadhar Tilak to the

Jury, during the course of his trial, may also be noted. Some of the passages

from the address were :-

“To excite feelings of disaffection means that by your act

you must heighten feelings of disaffection when they exist

or create them when they do not. If you do not do anything

to excite feelings, if you merely express, if you merely

report, if you only express sentiments which exist at the time,

surely your act does not come under Section 124A. Nay,

more, you may create a feeling of disapprobation. I can say

with impunity something is bad; it ought to be remedied. I

have to write; I have a right to do that and if I find fault it is

only natural that some ill-feeling is created. . . . So in this

approbation some ill feeling is necessarily implied. That is

the meaning of Explanation 2 to the Section; it refers to

“Comments expressing disapprobation of the measures of

the Government.” When I say that Government is going

wrong, evidently, I say something which the authorities may

not like. That is not sedition; if that were so, there could be

no progress at all and we shall have to be content at the end

of the 20th century with what we have at present. True

progress comes of agitation; and you are bound to consider

the defects pointed out and discussed and the reforms

proposed and to look to the real intention of the man. …..

….. ….. …..

Then there is another expression to which I wish to draw

your attention; and it is “Government established by law in

British India”. ‘Government’ here does not mean the

Executive or the Judiciary but it means Government in the

abstract. The word ‘Government’ is defined in the Indian

Penal Code and includes any officer, even a polite constable.

It does not mean that if I say a police man is not doing his

duty then I am guilty of sedition. Go up higher. If certain

officials have not been doing their duty, I have every right to

say that these officials should be discharged; there should be

stricter supervision and that particular departments should be

altered. So long as the word “Government” is qualified by

40 “Trial of Tilak”: 2nd Edition., published by Publications Division, Ministry of Information and Broadcasting,

Government of India.

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the words “established by Law,” how can it have the

meaning given to it by a definition of the word

(“Government”) in a particular part in the Penal Code? The

qualifying phrase makes it a quite different thing. It is

“Government established by law.” We shall have to come

afterwards to the question whether Bureaucracy is

Government or not? Whether the British Government is

solely dependent upon the Bureaucracy? Can it not exist

without it? The Bureaucracy may say so, it may be very

flattering to them to say that the services of certain officers

are indispensable to them but is it the meaning conveyed by

the expression “Government established by law in British

India”? Does it mean a “form of administration” and is it

consistent with that meaning? So far as ideals are concerned

they do not come under the Penal Code. I may say that a

certain system of administration is better suited to the

country and may try to spread that opinion. You may not

agree with me but that is not the point. I have to express my

opinion and so long as I do not create any disaffection I am

allowed to express it freely. There can otherwise be no

progress; progress would be impossible unless you allow

intelligent gentlemen the right to express their opinion, to

influence the public and get the majority of the public on

their side. …

….. ….. …..

The question is, do you really intend as guardians of the

liberty of the Press to allow as much liberty here in India as

is enjoyed by the people of England? That is the point that

you will have to very carefully consider. I wish to show you

that mine is an Article written in controversy as a reply to an

opponent. It was penned to defend the interests of my

community. You may not agree with me in my views.

Different communities have different views. And every

community must have opportunity to express its own views.

I have not come here to ask you any grace. I am prepared to

stand by the consequences of my act. There is no question

about it. I am not going to tell you that I wrote the article in

a fit of madness. I am not a lunatic. I have written it believing

it my duty to write in the interest of the public in this way,

believing that that was the view of the community. I wanted

to express it, believing that the interests of the community

would not be otherwise safeguarded. Believe me when I say

that it was both in the interest of the people and Government

and this view should be placed before them. If you honestly

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go to the question like that it will be your duty to give a

verdict to not guilty, whatever may be your opinion about

me, even if you dislike me as much as you can. …..

….. ….. …..

In a homogeneous country like England, there are parties

like Conservatives, Liberals, Radicals and Nationalists; each

man takes his own view of public events. Take, for instance,

the Boer war; there were people who disapproved of it,

though they were a very small minority. The majority of the

nation determined upon going to war and the war did take

place. Those who represented the view of the minority used

arguments in favour of the Boers, they were called the proBoer party, the others used arguments against the Boers. So

there was public opinion discussed on both sides and from

both points of view. That is the beauty of a free press, which

allows discussion in this way to the people of the country

upon a particular subject. …..”

32. Having considered the decisions of the Privy Council in

Balgangadhar Tilak30 and in King-Emperor v. Sadashiv Narayan

Bhalero32 we must now deal with the decision of the Federal Court in

Niharendu Dutt Majumdar v. The King Emperor

. A passage from the

decision of the Federal Court was quoted in Kedar Nath Singh v. State of

Bihar2 but immediately preceding passage from said decision of the Federal

Court is also noteworthy and was to the following effect:

“The time is long past when the mere criticism of

Governments was sufficient to constitute sedition, for it is

recognized that the right to utter honest and reasonable

criticism is a source of strength to a community rather than

a weakness. Criticism of an existing system of Government

is not excluded, nor even the expression of a desire for a

different system altogether. The language of S. 124-A of the

Penal Code, if read literally, even with the explanations

attached to it, would suffice to make a surprising number of

persons in this country guilty of sedition; but no one

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supposes that it is to be read in this literal sense. The

language itself has been adopted from English law, but it is

to be remembered that in England the good sense of jurymen

can always correct extravagant interpretations sought to be

given by the executive Government or even by Judges

themselves, and if in this country that check is absent, or

practically absent, it becomes all the more necessary for the

Courts, when a case of this kind comes before them, to put

themselves so far as possible in the place of a jury, and to

take a broad view, without refining overmuch in applying

the general principles which underlie the law of sedition to

the particular facts and circumstances brought to their notice.

What then are these general principles? We are content

to adopt the words of a learned Judge, which are to be found

in every book dealing with this branch of the criminal law:

Page: “Sedition……embraces all those practices, whether

by word, deed or writing, which are calculated to disturb the

tranquillity of the State and lead ignorant persons to subvert

the Government. The objects of sedition generally are to

induce discontent and insurrection, to stir up opposition to

the Government, and to bring the administration of justice

into contempt; and the very tendency of sedition is to incite

the people to insurrection and rebellion. Sedition has been

described as disloyalty in action, and the law considers as

sedition all those practices which have for their object to

excite discontent or disaffection, to create public

disturbance, or to lead to civil war; to bring into hatred or

contempt the Sovereign or Government, the laws or the

constitution of the realm and generally all endeavours to

promote public disorder.” Fitzgerald, J., in R. v. Sullivan33

It is possible to criticise one or two words or phrases in this

passage; “loyalty” and “dis-loyalty,” for example, have a

non-legal connotation also, and it is very desirable that there

should be no confusion between this and the sense in which

the words are used in a legal context; but, generally

speaking, we think that the passage accurately states the law

as it is to be gathered from an examination of a great number

of judicial pronouncements.”

(Emphasis supplied)

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33. These passages elucidate what was accepted by this Court in

preference to the decisions of the Privy Council in Balgangadhar Tilak30

and in King-Emperor v. Sadashiv Narayan Bhalerao

32. The statements of

law deducible from the decision in Kedar Nath Singh2

are as follows: -

a) “the expression “the Government established by law” has

to be distinguished from the persons for the time being

engaged in carrying on the administration. “Government

established by law” is the visible symbol of the State. The

very existence of the State will be in jeopardy if the

Government established by law is subverted.”

….. ….. …..

b) “any acts within the meaning of Section 124-A which

have the effect of subverting the Government by bringing

that Government into contempt or hatred, or creating

disaffection against it, would be within the penal statute

because the feeling of disloyalty to the Government

established by law or enmity to it imports the idea of

tendency to public disorder by the use of actual violence

or incitement to violence.”

….. ….. …..

c) “comments, however strongly worded, expressing

disapprobation of actions of the Government, without

exciting those feelings which generate the inclination to

cause public disorder by acts of violence, would not be

penal.”

….. ….. …..

d) “A citizen has a right to say or write whatever he likes

about the Government, or its measures, by way of

criticism or comment, so long as he does not incite

people to violence against the Government established

by law or with the intention of creating public disorder.”

….. ….. …..

e) “The provisions of the Sections41 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.”

The reference was to Sections 124A and 505 of the IPC.

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….. ….. …..

f) “It is only when the words, written or spoken, etc. which

have 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.”

….. ….. …..

g) “we propose to limit its operation only to such activities

as come within the ambit of the observations of the

Federal Court, that is to say, activities involving

incitement to violence or intention or tendency to create

public disorder or cause disturbance of public peace.”

As the statement of law at placetum (e) above indicates, it applies

to cases under Sections 124-A and 505 of the IPC3

. According to this Court

only such activities which would be intended or have a tendency to create

disorder or disturbance of public peace by resort to violence – are rendered

penal.

34. Some of the decisions cited by the learned Counsel, touching upon

the content and the extent of the right of the Press, may also be adverted to

at this stage.

A) In the case of Indian Express Newspapers (Bombay) Private Ltd.

& Ors. vs. Union of India & Ors.42

, this Court observed:

“25. The freedom of press, as one of the members of the

Constituent Assembly said, is one of the items around which

the greatest and the bitterest of constitutional struggles have

been waged in all countries where liberal constitutions

prevail. The said freedom is attained at considerable

42 (1985) 1 SCC 641

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sacrifice and suffering and ultimately it has come to be

incorporated in the various written constitutions. James

Madison when he offered the Bill of Rights to the Congress

in 1789 is reported as having said: “The right of freedom of

speech is secured, the liberty of the press is expressly

declared to be beyond the reach of this Government.” [See

1 Annals of Congress (1789-96) p. 141]. Even where there

are no written constitutions, there are well established

constitutional conventions or judicial pronouncements

securing the said freedom for the people. The basic

documents of the United Nations and of some other

international bodies to which reference will be made

hereafter give prominence to the said right. The leaders of

the Indian independence movement attached special

significance to the freedom of speech and expression which

included freedom of press apart from other freedoms During

their struggle for freedom they were moved by the American

Bill of Rights containing the First Amendment to the

Constitution of the United States of America which

guaranteed the freedom of the press Pandit Jawaharlal Nehru

in his historic resolution containing the aims and objects of

the Constitution to be enacted by the Constituent Assembly

said that the Constitution should guarantee and secure to all

the people of India among others freedom of thought and

expression. He also stated elsewhere that “I would rather

have a completely free press with all the dangers involved in

the wrong use of that freedom than a suppressed or regulated

press” [See D.R. Mankekar: The Press under

Pressure (1973) p. 25]. The Constituent Assembly and its

various committees and sub-committees considered freedom

of speech and expression which included freedom of press.

also as a precious right. The Preamble to the Constitution

says that it is intended to secure to all citizens among others

liberty of thought, expression, and belief. It is significant that

in the kinds of restrictions that may be imposed on the

freedom of speech and expression, any reasonable restriction

imposeable in the public interest is not one enumerated in

clause (2) of Article 19. In Romesh Thappar v. State of

Madras20 and Brij Bhushan case43 this Court firmly

expressed its view that there could not be any kind of

restrictions on the freedom of speech and expression other

than those mentioned in Article 19(2) and thereby made it

43 AIR 1950 SC 129 : 1950 SCR 605

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clear that there could not be any interference with that

freedom in the name of public interest.”

….. ….. …..

32. In today's free world freedom of press is the heart of

social and political intercourse. The press has now assumed

the role of the public educator making formal and nonformal education possible in a large scale particularly in the

developing world, where television and other kinds of

modern communication are not still available for all sections

of society. The purpose of the press is to advance the public

interest by publishing facts and opinions without which a

democratic electorate cannot make responsible judgments.

Newspapers being purveyors of news and views having a

bearing on public administration very often carry material

which would not be palatable to Governments and other

authorities. The authors of the articles which are published

in newspapers have to be critical of the actions of

Government in order to expose its weaknesses. Such articles

tend to become an irritant or even a threat to power.

….. ….. …..

33. Thomas I. Emerson in his article entitled “Toward, a

General Theory of the First Amendment” [(1963) 72 Yale

Law Journal 877 at p. 906] while dealing with the role of the

judicial institutions in a democratic society and in particular

of the Apex Court of U.S.A. in upholding the freedom of

speech and expression writes:

“The objection that our judicial institutions lack the

political power and prestige to perform an active role in

protecting freedom of expression against the will of the

majority raises more difficult questions. Certainly judicial

institutions must reflect the traditions, ideals and

assumptions, and in the end must respond to the needs,

claims and expectations, of the social order in which they

operate. They must not, and ultimately cannot, move too far

ahead or lag too far behind. The problem for the Supreme

Court is one of finding the proper degree of responsiveness

and leadership, or perhaps better, of short-term and longterm responsiveness. Yet in seeking out this position the

Court should not underestimate the authority and prestige it

has achieved over the years. Representing the “conscience

of the community” it has come to possess a very real power

to keep alive and vital the higher values and goals toward

which our society imperfectly strives.... Given its prestige,

it would appear that the power of the Court to protect

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freedom of expression is unlikely to be substantially

curtailed unless the whole structure of our democratic

institutions is threatened.”

34. What is stated above applies to the Indian courts with

equal force. In Romesh Thappar case20

, Brij Bhushan

case43

, Express Newspapers (Private) Ltd. v. Union of

India44

, Sakal Papers (P) Ltd. v. Union of India45

and Bennett Coleman case46 this Court has very strongly

pronounced in favour of the freedom of press. Of these, we

shall refer to some observations made by this Court in some

of them.

35. In Romesh Thappar case20 this Court said at p. 602:

“... (The freedom) lay at the foundation of all

democratic organisations, for without free political

discussion no public education, so essential for the proper

functioning of the processes of popular government, is

possible. A freedom of such amplitude might involve risks

of abuse.... (But) ‘it is better to leave a few of its noxious

branches to their luxuriant growth, than, by pruning them

away, to injure the vigour of those yielding the proper

fruits’.”

36. In Bennett Coleman case46 A.N. Ray, C.J. on behalf of

the majority said at p. 796 (SCC p. 823, para 80) thus:

“The faith of a citizen is that political wisdom and virtue

will sustain themselves in the free market of ideas so long

as the channels of communication are left open. The faith

in the popular Government rests on the old dictum ‘let the

people have the truth and the freedom to discuss it and all

will go well’. The liberty of the press remains an ‘Ark of

the Covenant’ in every democracy.... The newspapers give

ideas. The newspapers give the people the freedom to find

out what ideas are correct.”

37. In the very same case, Mathew, J. observed at p. 818:

(SCC p. 846, paras 168, 169)

“The constitutional guarantee of freedom of

speech is not so much for the benefit of the press as it

is for the benefit of the public. The freedom of speech

44 AIR 1958 SC 578 : 1959 SCR 12

45 AIR 1962 SC 305 : (1962) 3 SCR 842

46 (1972) 2 SCC 788 : AIR 1973 SC 106 : (1973) 2 SCR 757

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includes within its compass the right of all citizens to

read and be informed. In Time Inc. v. Hill [385 US

374 : 17 L Ed 2d 456 : 87 S Ct 534 (1967)] the U.S.

Supreme Court said:

‘The constitutional guarantee of freedom of

speech and press are not for the benefit of the

press so much as for the benefit of all the

people.’ ”

In Griswold v. Connecticut47 the U.S. Supreme

Court was of the opinion that the right of freedom of

speech and press includes not only the right to utter or

to print, but the right to read.”

B) This Court in the case of S. Rangarajan v. P. Jagjivan Ram &

Ors.

48 held:

“36. The democracy is a Government by the people via open

discussion. The democratic form of Government itself

demands its citizens an active and intelligent participation in

the affairs of the community. The public discussion with

people's participation is a basic feature and a rational process

of democracy which distinguishes it from all other forms of

Government. The democracy can neither work nor prosper

unless people go out to share their views. The truth is that

public discussion on issues relating to administration has

positive value. What Walter Lippmann said in another

context is relevant here:

“When men act on the principle of intelligence, they

go out to find the facts.... When they ignore it, they

go inside themselves and find out what is there. They

elaborate their prejudice instead of increasing their

knowledge.”

43. Brandies, J., in Whitney v. California49 propounded

probably the most attractive free speech theory:

“... that the greatest menace to freedom is an inert

people; that public discussion is a political duty;. .. It

is hazardous to discourage thought, hope and

47 381 US 479, 482 : 14 L Ed 2d 510 : 85 SCt 1678 (1965)

48 1989 (2) SCC 574

49 274 US 357, 375-78 (1927) : 71 L Ed 1045

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imagination; that the path of safety lies in the

opportunity to discuss freely supposed grievances and

proposed remedies; and that the fitting remedy for

evil counsels is good ones.”

45. The problem of defining the area of freedom of

expression when it appears to conflict with the various social

interests enumerated under Article 19(2) may briefly be

touched upon here. There does indeed have to be a

compromise between the interest of freedom of expression

and special interests. But we cannot simply balance the two

interests as if they are of equal weight. Our commitment of

freedom of expression demands that it cannot be suppressed

unless the situations created by allowing the freedom are

pressing and the community interest is endangered. The

anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the

expression. The expression of thought should be intrinsically

dangerous to the public interest. In other words, the

expression should be inseparably locked up with the action

contemplated like the equivalent of a “spark in a power keg”.

35. Reliance was also placed on the decision of the Constitution Bench

of this Court in The Superintendent, Central Prison, Fatehgarh and

another v. Dr. Ram Manohar Lohia50

, which dealt with the expression

“Public Order” appearing in Article 19 (2) of the Constitution, the relevant

portion being :-

“9. …… The expression “public order” has a very wide

connotation. Order is the basic need in any organised

society. It implies the orderly state of society or community

in which citizens can peacefully pursue their normal

activities of life. In the words of an eminent Judge of the

Supreme Court of America “the essential rights are subject

to the elementary need for order without which the guarantee

of those rights would be a mockery”. The expression has not

50 AIR 1960 SC 633

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Vinod Dua vs. Union of India & Ors.

been defined in the Constitution, but it occurs in List II of its

Seventh Schedule and is also inserted by the Constitution

(First Amendment) Act, 1951 in clause (2) of Article 19. The

sense in which it is used in Article 19 can only be appreciated

by ascertaining how the Article was construed before it was

inserted therein and what was the defect to remedy which the

Parliament inserted the same by the said amendment. The

impact of clause (2) of Article 19 on Article 19(1)(a) before

the said amendment was subject to judicial scrutiny by this

Court in Romesh Thappar v. State of Madras20. There the

Government of Madras, in exercise of their powers under

Section 9(1-A) of the Madras Maintenance of Public Order

Act, 1949, purported to issue an order whereby they imposed

a ban upon the entry and circulation of the journal called the

“Cross Roads” in that State. The petitioner therein contended

that the said order contravened his fundamental right to

freedom of speech and expression. At the time when that

order was issued the expression “public order” was not in

Article 19(2) of the Constitution; but the words “the security

of the State” were there. In considering whether the

impugned Act was made in the interests of security of the

State, Patanjali Sastri, J., as he then was, after citing the

observation of Stephen in his Criminal Law of England,

states:

“Though all these offences thus involve

disturbances of public tranquillity and are in theory

offences against public order, the difference between

them being only a difference of degree, yet for the

purpose of grading the punishment to be inflicted in

respect of them they may be classified into different

minor categories as has been done by the Indian Penal

Code. Similarly, the Constitution, in formulating the

varying criteria for permissible legislation imposing

restrictions on the fundamental rights enumerated in

Article 19(1), has placed in a distinct category those

offences against public order which aim at

undermining the security of the State or overthrowing

it, and made their prevention the sole justification for

legislative abridgement of freedom of speech and

expression, that is to say, nothing less than

endangering the foundations of the State or

threatening its overthrow could justify curtailment of

the rights to freedom of speech and expression ….”

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

The learned Judge continued to state:

“The Constitution thus requires a line to be drawn

in the field of public order or tranquillity marking off,

may be, roughly, the boundary between those serious

and aggravated forms of public disorder which are

calculated to endanger the security of the State and

the relatively minor breaches of the peace of a purely

local significance, treating for this purpose

differences in degree as if they were differences in

kind.”

The learned Judge proceeded further to state:

“We are therefore of opinion that unless a law

restricting freedom of speech and expression is

directed solely against the undermining of the

security of the State or the overthrow of it, such law

cannot fall within the reservation under clause (2) of

Article 19, although the restrictions which it seeks to

impose may have been conceived generally in the

interests of public order.”

This decision establishes two propositions viz. (i)

maintenance of public order is equated with maintenance of

public tranquillity; and (ii) the offences against public order

are divided into two categories viz. (a) major offences

affecting the security of the State, and (b) minor offences

involving breach of purely local significance. This Court

in Brij Bhushan v. State of Delhi43 followed the earlier

decision in the context of Section 7(1)(c) of the East Punjab

Public Safety Act, 1949. Fazl Ali, J., in his dissenting

judgment gave the expression “public order” a wider

meaning than that given by the majority view. The learned

Judge observed at p. 612 thus:

“When we approach the matter in this way, we

find that while ‘public disorder’ is wide enough to

cover a small riot or an affray and other cases where

peace is disturbed by, or affects, a small group of

persons, ‘public unsafety’ (or insecurity of the State),

will usually be connected with serious internal

disorders and such disturbances of public tranquillity

as jeopardize the security of the State.”

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

This observation also indicates that “public order” is

equated with public peace and safety. Presumably in an

attempt to get over the effect of these two decisions, the

expression “public order” was inserted in Article 19(2) of

the Constitution by the Constitution (First Amendment) Act,

1951, with a view to bring in offences involving breach of

purely local significance within the scope of permissible

restrictions under clause (2) of Article 19. After the said

amendment, this Court explained the scope of Romesh

Thapper's case20 in State of Bihar v. Shailabala Devi51. That

case was concerned with the constitutional validity of

Section 4(1)(a) of the Indian Press (Emergency Powers) Act,

1931. It deals with the words or signs or visible

representations which incite to or encourage, or tend to incite

to or encourage the commission of any offence of murder or

any cognizable offence involving violence. Mahajan, J., as

he then was, observed at p. 660:

“The deduction that a person would be free to

incite to murder or other cognizable offence through

the press with impunity drawn from our decision

in Romesh Thapper case could easily have been

avoided as it was avoided by Shearer, J., who in very

emphatic terms said as follows:

‘I have read and re-read the judgments of

the Supreme Court, and I can find nothing in

them myself which bear directly on the point

at issue, and leads me to think that, in their

opinion, a restriction of this kind is no longer

permissible.’”

The validity of that section came up for consideration

after the Constitution (First Amendment) Act, 1951, which

was expressly made retrospective, and therefore the said

section clearly fell within the ambit of the words “in the

interest of public order”. That apart the observations of

Mahajan, J., as he then was, indicate that even without the

amendment that section would have been good inasmuch as

it aimed to prevent incitement to murder.

10. The words “public order” were also understood in

America and England as offences against public safety or

51 (1952) SCR 654

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Vinod Dua vs. Union of India & Ors.

public peace. The Supreme Court of America observed

in Cantewell v. Connecticut52 thus:

“The offence known as breach of the peace

embraces a great variety of conduct destroying or

menacing public order and tranquillity. It includes not

only violent acts and words likely to produce violence

in others. No one would have the hardihood to

suggest that the principle of freedom of speech

sanctions incitement to riot … When clear and

present danger of riot, disorder, interference with

traffic upon the public streets, or other immediate

threat to public safety, peace, or order appears, the

power of the State to prevent or punish is obvious.”

The American decisions sanctioned a variety of

restrictions on the freedom of speech in the interests of

public order. They cover the entire gamut of restrictions that

can be imposed under different heads in Article 19(2) of our

Constitution. The following summary of some of the cases

of the Supreme Court of America given in a well-known

book on Constitutional law illustrates the range of categories

of cases covering that expression. “In the interests of public

order, the State may prohibit and punish the causing of ‘loud

and raucous noise’ in streets and public places by means of

sound amplifying instruments, regulate the hours and place

of public discussion, and the use of the public streets for the

purpose of exercising freedom of speech; provide for the

expulsion of hecklers from meetings and assemblies, punish

utterances tending to incite an immediate breach of the peace

or riot as distinguished from utterances causing mere ‘public

inconvenience, annoyance or unrest’”. In England also Acts

like Public Order Act, 1936, Theatres Act, 1843 were

passed: the former making it an offence to use threatening,

abusive or insulting words or behaviour in any public place

or at any public meeting with intent to provoke a breach of

the peace or whereby a breach of the peace is likely to be

caused, and the latter was enacted to authorise the Lord

Chamberlain to prohibit any stage play whenever he thought

its public performance would militate against good manners,

decorum and the preservation of the public peace. The

reason underlying all the decisions is that if the freedom of

speech was not restricted in the manner the relevant Acts did,

public safety and tranquillity in the State would be affected.

52 (1940) 310 US 296, 308

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Vinod Dua vs. Union of India & Ors.

11. But in India under Article 19(2) this wide concept of

“public order” is split up under different heads. It enables the

imposition of reasonable restrictions on the exercise of the

right to freedom of speech and expression 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 offence.

All the grounds mentioned therein can be brought under the

general head “public order” in its most comprehensive sense.

But the juxtaposition of the different grounds indicates that,

though sometimes they tend to overlap, they must be

ordinarily intended to exclude each other. “Public order” is

therefore something which is demarcated from the others. In

that limited sense, particularly in view of the history of the

amendment, it can be postulated that “public order” is

synonymous with public peace, safety and tranquillity.”

(Emphasis supplied)

36. Having dealt with the applicability of Section 124A of the IPC3

and

the content of the rights of a citizen and of the Press, the next stage is to see

whether the petitioner is right in his submission that no offence as alleged,

has been made out. We need not set out the principles, on the basis of which

an FIR or a Complaint or pending Criminal proceedings can be quashed.

Those principles, post the decision of this Court in State of Haryana and

Others vs. Bhajan Lal and Others53 are well settled. We may however refer

to two decisions of this Court where, in the context of the alleged offences

under Sections 153A and 505 of the IPC3

, the criminal proceedings were

quashed.

53 (1992) Suppl 1 SCC 335

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Vinod Dua vs. Union of India & Ors.

A) In Manzar Sayeed Khan vs. State of Maharashtra and Another54

it was laid down that the requisite intention to promote feelings of enmity

or hatred between different classes of people, must be judged primarily by

“the language of the book and the circumstances in which the book was

written”; and accepted that the effect of the words must be judged from the

standards of reasonable, strong minded, firm and courageous men. It was

observed: -

“16. Section 153-A IPC, as extracted hereinabove, covers a

case where a person by words, either spoken or written, or

by signs or by visible representations or otherwise, promotes

or attempts to promote, disharmony or feelings of enmity,

hatred or ill will between different religious, racial, language

or regional groups or castes or communities or acts

prejudicial to the maintenance of harmony or is likely to

disturb the public tranquillity. The gist of the offence is the

intention to promote feelings of enmity or hatred between

different classes of people. The intention to cause disorder

or incite the people to violence is the sine qua non of the

offence under Section 153-A IPC and the prosecution has to

prove prima facie the existence of mens rea on the part of the

accused. The intention has to be judged primarily by the

language of the book and the circumstances in which the

book was written and published. The matter complained of

within the ambit of Section 153-A must be read as a whole.

One cannot rely on strongly worded and isolated passages

for proving the charge nor indeed can one take a sentence

here and a sentence there and connect them by a meticulous

process of inferential reasoning.

17. In Ramesh v. Union of India55 this Court held that TV

serial Tamas did not depict communal tension and violence

and the provisions of Section 153-A IPC would not apply to

54 (2007) 5 SCC 1

55 (1988) 1 SCC 668

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Vinod Dua vs. Union of India & Ors.

it. It was also not prejudicial to the national integration

falling under Section 153-B IPC. Approving the

observations of Vivian Bose, J. in Bhagwati Charan

Shukla v. Provincial Govt.56 the Court observed that:

“the effect of the words must be judged from the

standards of reasonable, strong-minded, firm and

courageous men, and not those of weak and

vacillating minds, nor of those who scent danger in

every hostile point of view. … It is the standard of

ordinary reasonable man or as they say in English law

‘the man on the top of a Clapham omnibus’.”

(Ramesh case55, SCC p. 676, para 13)”

B) In Patricia Mukhim vs. State of Meghalaya and Others57, the

requisite intention to bring out the basic ingredient of offences under

Sections 153A and 505 (1) (c) of the IPC3 was found to be absent. This

Court observed:-

“13. In the instant case, applying the principles laid down by

this Court as mentioned above, the question that arises for

our consideration is whether the Facebook post-dated

04.07.2020 was intentionally made for promoting

class/community hatred and has the tendency to provoke

enmity between two communities. A close scrutiny of the

Facebook post would indicate that the agony of the

Appellant was directed against the apathy shown by the

Chief Minister of Meghalaya, the Director General of Police

and the Dorbar Shnong of the area in not taking any action

against the culprits who attacked the non-tribals youngsters.

The Appellant referred to the attacks on nontribals in 1979.

At the most, the Facebook post can be understood to

highlight the discrimination against nontribals in the State of

Meghalaya. However, the Appellant made it clear that

criminal elements have no community and immediate action

has to be taken against persons who had indulged in the

56 AIR 1947 Nag 1

57 2021 SCC OnLine SC 258

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Vinod Dua vs. Union of India & Ors.

brutal attack on non-tribal youngsters playing basketball.

The Facebook post read in its entirety pleads for equality of

non-tribals in the State of Meghalaya. In our understanding,

there was no intention on the part of the Appellant to

promote class/community hatred. As there is no attempt

made by the Appellant to incite people belonging to a

community to indulge in any violence, the basic ingredients

of the offence under Sections 153 A and 505(1)(c) have not

been made out. Where allegations made in the FIR or the

complaint, even if they are taken on their face value and

accepted in their entirety do not prima facie constitute any

offence or make out a case against the accused, the FIR is

liable to be quashed58.”

37. According to the respondents, apart from the offences spelt out in

the FIR, certain other offences are also made out. The instant case,

therefore, has to be seen from both the perspectives, namely whether any

of the offences as stated in the FIR and whether those referred to in the

submissions of the respondents, are made out or not.

38. Leaving aside two incorrect statements made in the FIR which were

dealt with in paragraph 27 hereinabove, the following assertions from the

talk show are relied upon to say that the offences as alleged are made out: -

“i) Our biggest failure has been that we do not have

enough facilities to carry out testing.

ii) Till now we do not have any information how many

(PPE suits, N95 masks and masks of 3 ply) we have and

how many will become available by when.

iii) The Ventilators needed in other countries and in India,

respiratory devices and sanitisers were being exported

58 State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335

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Vinod Dua vs. Union of India & Ors.

till 24.3.2020 instead of keeping these for use in our

country.

iv) That supply chains got disrupted due to blockage of

roads and now it is being heard that transportation of

essential goods has been allowed.

v) It is not difficult to imagine that when the supply chains

have been closed, when the shops are closed, some

people had gone to the extent of fearing food riots

which have not happened in our country could happen.

vi) When people started returning from Mumbai …. That

should have been a big signal for the Government

about the effect the complete lockdown in the country

can bring about, but no lessons were learnt.”

39. We now consider these statements.

A) It is common knowledge that the countries all over the world found

themselves wanting in terms of infrastructure and facilities to cope up with

the effects of Covid-19 Pandemic. Considering the size of the population

of this country, the testing facilities to gauge and check the spread and effect

of the Pandemic, at least in the initial stages of the surge, were not exactly

adequate. If in that light, the petitioner made any comments about testing

facilities or PPE Suits, N-95 masks and masks of 3 ply, those comments in

first two statements, cannot be anything other than appraisal of the situation

then obtaining. It was not even the case of the respondents that these two

statements were factually incorrect.

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Vinod Dua vs. Union of India & Ors.

B) With regard to the third statement, the contention of the respondents

was that the ban on export was imposed on 19.03.2020 and the said

statement was therefore not quite correct. It was also submitted that the

Petitioner produced no evidence of actual exports before the ban was

imposed on 19.03.2020 and that there were no exports immediately

proceeding the imposition of ban.

C) The effect of Nation-wide lockdown which came into effect from

the midnight intervening 24.03.2020 and 25.03.2020, according to the

Petitioner, resulted in disruption of supply chains due to blockage of roads.

It was the submission of the respondents that by Consolidated Guidelines

issued on 28.03.2020 (which was stated to be an order under Section 188

of the IPC3

), adequate steps were directed to be taken to ensure that there

was no disruption in supply of essential goods. It must be stated that the

fourth statement did acknowledge that the transportation of essential goods

was being allowed and, in that sense, it was more or less correct depiction

of the state of affairs then prevailing.

D) The emphasis to a great extent, were, however, put on the fifth and

the sixth statements and it was strongly contended that said statements not

only gave factually incorrect information but amounted to incite the general

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Vinod Dua vs. Union of India & Ors.

public and that it was because of such incorrect information, the movement

of migrant workers had begun.

On the other hand, reliance was placed by the petitioner on the

interview of former Chief Statistician reported on 28.03.2020 that if food

requirements of migrant workers were not fulfilled amid countrywide

lockdown, food riots could be a real possibility. It was submitted that by

the time the talk show was uploaded, the movement of migrant workers had

already started and was at the peak.

40. It may be relevant to note here that Writ Petition (C) No.468 of

2020 (Alakh Alok Srivastava v. Union of India etc.) and connected

petition59

, filed on 29.03.2020 by two Advocates, sought to highlight the

plight of migrant workers. These matters came up on 31.03.2020 before

this Court when it was observed:-

“In the instant writ petitions, we are concerned about the

migrant labourers who have started leaving their places of

work for their home villages/towns located at distant places.

For example, thousands of migrant labourers left Delhi to

reach their homes in the States Uttar Pradesh and Bihar, by

walking on the highways.

We are informed that the labourers who are unemployed due

to lock down were apprehensive about their survival. Panic

was created by some fake news that the lock down would

last for more than three months.

….. ….. …..

59 Writ Petition (C) No.469 of 2020 (Rashmi Bansal v. Union of India)

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

During the course of hearing, the Solicitor General of India

made a statement that the information received by the

Control Room today at 2.30 A.M. showed that 21,064 relief

camps have been set up by various State

Governments/Union Territories where the migrant labourers

have been shifted and they are being provided with basic

amenities like food, medicines, drinking water, etc.

According to the Status Report, 6,66,291 persons have been

provided shelters and 22,88,279 persons have been provided

food.

….. ….. …..

The Solicitor General of India has also referred to the Status

Report to make a submission that the exodus of migrant

labourers was triggered due to panic created by some

fake/misleading news and social media.

….. ….. …..

While informing this Court about the steps taken by the

Government of India to ensure that the migrant labourers are

being shifted to nearby shelters/relief camps from place they

were found to be walking and basic amenities being

provided to them, the Union of India has sought a direction

from this Court to the State Governments and the Union

Territories to implement the directions issued by the Central

Government. A further direction was sought to prevent fake

and inaccurate reporting whether intended or not, either by

electronic print or social medial which will cause panic in

the society.

….. ….. …..

The migration of large number of labourers working in the

cities was triggered by panic created by fake news that the

lock down would continue for more than three months. Such

panic driven migration has caused untold suffering to those

who believed and acted on such news. In fact, some have lost

their lives in the process. It is therefore not possible for us to

overlook this menace of fake news either by electronic, print

or social media.

Section 54 of the Disaster Management Act, 2005 provides

for punishment to a person who makes or circulates a false

alarm or warning as to disaster or its severity or magnitude,

leading to panic. Such person shall be punished with

imprisonment which may extend to one year or with fine.

Disobedience to an order promulgated by a public servant

would result in punishment under section 188 of the Indian

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Vinod Dua vs. Union of India & Ors.

Penal Code. An advisory which is in the nature of an order

made by the public authority attracts section 188 of the

Indian Penal Code.

We trust and expect that all concerned viz., State

Governments, Public Authorities and Citizens of this

country will faithfully comply with the directives, advisories

and orders issued by the Union of India in letter and spirit in

the interest of public safety.

In particular, we expect the Media (print, electronic or

social) to maintain a strong sense of responsibility and

ensure that unverified news capable of causing panic is not

disseminated. A daily bulletin by the Government of India

through all media avenues including social media and

forums to clear the doubts of people would be made active

within a period of 24 hours as submitted by the Solicitor

General of India. We do not intend to interfere with the free

discussion about the pandemic, but direct the media refer to

and publish the official version about the developments.”

41. The developments referred to in the aforementioned Order show

that the movement of migrant workers back to their hometown or villages

had posed an alarming situation. The writ petitions did bring out those

issues, in response to which the concern shown by the Government and the

steps undertaken by the authorities were placed on record. This Court

suggested that a daily bulletin by the Government of India be made active

so that correct and precise information was made available to the general

public and the exodus of migrant workers could thus be checked. However,

the Order also shows the magnitude of the problem which required about

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Vinod Dua vs. Union of India & Ors.

6,66,291 persons to be provided shelter and 22,88,279 persons to be

provided food.

42. What was prevailing on 30.03.2020 was therefore clear and migrant

workers in huge numbers were moving towards their hometowns/villages.

In the circumstances, there would naturally be some apprehension about the

shelter and food to be provided to them en-route. The former Chief

Statistician had expressed a possibility with the intent to invite the attention

of the authorities. If the petitioner in his talk show uploaded on 30.03.2020,

that is even before the matter was taken up by this Court, made certain

assertions in his 5

th and 6th statement, he would be within his rights to say

that as a Journalist he was touching upon issues of great concern so that

adequate attention could be bestowed to the prevailing problems. It cannot

be said that the petitioner was spreading any false information or rumours.

It is not the case of the respondents that the migrant workers started moving

towards their hometowns/villages purely as a result of the statements made

by the petitioner. Such movement of migrant workers had begun long

before. In the circumstances, these statements can neither be taken to be an

attempt to incite migrant workers to start moving towards their hometowns

or villages nor can it be taken to be an incitement for causing any food riots.

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

The situation was definitely alarming around 30.03.2020 and as a

journalist if the petitioner showed some concern, could it be said that he

committed offences as alleged.

43. The Principles culled out in paragraph 33 hereinabove from the

decision of Court in Kedar Nath Singh2

show that a citizen has a right to

criticize or comment upon the measures undertaken by the Government and

its functionaries, so long as he does not incite people to violence against the

Government established by law or with the intention of creating public

disorder; and that it is only when the words or expressions have pernicious

tendency or intention of creating public disorder or disturbance of law and

order that Sections 124A and 505 of the IPC3 must step in.

In our view, the statements by the petitioner as mentioned

hereinabove, if read in the light of the principles emanating from the

decision in Kedar Nath Singh2

and against the backdrop of the

circumstances when they were made, can at best be termed as expression

of disapprobation of actions of the Government and its functionaries so that

prevailing situation could be addressed quickly and efficiently. They were

certainly not made with the intent to incite people or showed tendency to

create disorder or disturbance of public peace by resort to violence. The

petitioner was within the permissible limits laid down in the decision of this

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

Court in Kedar Nath Singh2

. It may be that certain factual details in the 3

statement regarding the date when the ban came into effect were not

completely correct. However, considering the drift of the entire talk show

and all the statements put together it cannot be said that the petitioner

crossed the limits set out in the decision of this Court in Kedar Nath Singh2

44. We are, therefore, of the firm view that the prosecution of the

petitioner for the offences punishable under Sections 124A and 505 (1) (b)

of the IPC3 would be unjust. Those offences, going by the allegations in the

FIR and other attending circumstances, are not made out at all and any

prosecution in respect thereof would be violative of the rights of the

petitioner guaranteed under Article 19(1)(a) of the Constitution.

45. The other offending provision referred to in the FIR is Section 501

of the IPC3 which is printing or engraving a matter which is defamatory to

any person. As a matter of fact, the cognizance with respect to an offence

punishable under Chapter XXI of the IPC3

(Section 501 of the IPC3

is part

of said Chapter) can be taken by a Court only upon a complaint made by

the person aggrieved. Without going into such technicalities, in our view,

there is nothing defamatory in the statements made by the petitioner.

Further, the statements of the petitioner would be covered by the second

and third exceptions to Section 499 of the IPC3

. In some of the cases

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Vinod Dua vs. Union of India & Ors.

decided by this Court, for example, in Jawaharlal Darda and Others vs.

Manoharrao Ganpatrao Kapsikar and Another60

, Rajendra Kumar

Sitaram Pande and Others vs. Uttam and Another61

, Vivek Goenka and

Others vs. Y.R. Patil62

, and S. Khushboo vs. Kanniammal and Another63

relying on exceptions to Section 499 of the IPC3

, the criminal proceeding

initiated against the accused were quashed. Thus, the instant proceedings,

in so far as Section 501 IPC3

is concerned, also deserve to be quashed.

46. The other provision referred to in the FIR was Section 268 of the

IPC3 which is nothing but the definition of “Public Nuisance” and is not a

penal provision in itself which prescribes any punishment. It was also not

the case of the respondent that any penal provision involving element of

“Public Nuisance” was attracted in the instant case.

47. Thus, all the offences set out in the FIR, in our considered view, are

not made out at all.

48. We now turn to the case with regard to the offences which were not

spelt out in the FIR. It was contended by the respondents that in addition

to the offences specifically set out in the FIR, the petitioner would also be

60 (1998) 4 SCC 112

61 (1999) 3 SCC 134

62 (2000) 9 SCC 87

63 (2010) 5 SCC 600

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Vinod Dua vs. Union of India & Ors.

guilty of the offences punishable under Sections 52 and 54 of the DM Act1

and Section 188 of the IPC3

. According to the respondents, the statements

made by the petitioner during the Talk Show amounted to circulating a false

alarm and would therefore be covered by Section 54 of the DM Act1

; and

that the petitioner would also be guilty of having violated communications

dated 24.3.2020 and 28.3.2020 (set out earlier in paragraph 14) and thereby

committed offences under Section 188 of the IPC3

49. The response of Mr. Vikas Singh, learned Senior Advocate for the

petitioner was that by virtue of Section 6064 of the DM Act1

, the offences

punishable under the provisions of the DM Act1

could be taken cognizance

of only upon a complaint being made by the certain designated officials or

functionaries. Similarly, in respect of offence under Section 188 of the

IPC3

, by virtue of Section 195 of the Code, cognizance could be taken only

upon a complaint in writing made by the concerned public servant whose

orders were allegedly violated or by someone who was administratively

superior to such public servant. These statutory requirements having not

64 60. Cognizance of offences.—No court shall take cognizance of an offence under this Act except on a complaint

made by—

(a) the National Authority, the State Authority, the Central Government, the State Government, the District

Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case

may be; or

(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence

and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the

State Government, the District Authority or any other authority or officer authorised as aforesaid

Writ Petition (Criminal) No.154 of 2020

Vinod Dua vs. Union of India & Ors.

been satisfied, the submission that the offences punishable under the DM

Act1

and under Section 188 of the IPC3 were made out, was required to be

rejected. Reliance was placed by him on the decisions of this Court in

Daulat Ram v. State of Punjab65 and in C. Muniappan and Others v. State

of Tamil Nadu66 as well as cases referred to in C. Muniappan66

The other facet of the submission was that even on merits, the

statements made by the petitioner in his Talk Show did not satisfy the

requirements of both said statutory provisions and therefore the petitioner

was entitled to the relief prayed for.

50. In reply, Mr. S.V. Raju, learned Additional Solicitor General

submitted that the injunctions spelt out in Section 60 of the DM Act1

and

Section 195 of the Code would come into play only at the stage of

cognizance by the Court and as such there would not be any bar to the

invocation of these provisions at a stage anterior to the stage of cognizance.

51. We need not go into the technical issue whether the initiation of the

proceedings in respect of the offences punishable under DM Act1

and/or

under Section 188 of the IPC3

could only be after an appropriate complaint

65 AIR 1962 SC 1206

66 (2010) 9 SCC 567

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would be made in writing as submitted by the petitioner, as in our

considered view, none of these offences as submitted by the respondents

get attracted in the instant matter.

A) Section 188 of the IPC3 deals with “Disobedience to order duly

promulgated by public servant”. If a person, though directed inter alia to

abstain from a certain act, disobeys a direction issued by a Public Servant

lawfully empowered to promulgate such direction or order, Section 188 of

the IPC3 may get attracted. The communications dated 24.3.2020 and

28.3.2020 which have been quoted earlier were pressed into service and it

was submitted that said communications which everyone was bound and

obliged to follow, were violated by the petitioner. We have gone through

these communications and in our view, there was nothing therein which

was violated as a result of the Talk Show uploaded by the petitioner. An

attempt was then made to rely on the order dated 31.3.20207

to submit that

this Court had issued certain directions and expected the media to maintain

strong sense of responsibility and ensure that unverified news capable of

causing panic was not disseminated. First, the direction was issued on

31.3.2020 i.e. after the episode was uploaded on 30.3.2020 and secondly,

we have not found any infirmity or illegality in the statements made by the

petitioner, on the basis of which it could be possibly be said that he was

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attempting to disseminate any news capable of causing panic.

Consequently, the provisions of Section 188 of the IPC3 would not get

attracted at all.

B) Section 52 of the DM Act1 deals with the lodging of a false claim

by a person for obtaining any relief, assistance, etc., which provision has

nothing to do with the present fact situation. Section 54 deals with cases

where a person makes or circulates a false alarm or warning as to disaster

or its severity or magnitude, leading to panic. We have already held that the

statements made by the petitioner were within the limits prescribed by the

decision of this Court in Kedar Nath Singh2

and that the statements were

without any intent to incite people for creating public disorder. It was not

even suggested that as a result of statements made by the petitioner any

situation of panic had resulted in any part of the country.

52. In the circumstances, without going into the technicalities whether

the initiation of the proceedings could only be through a complaint filed in

conformity with Section 60 of the DM Act1 or Section 195 of the Code, in

our view, the provisions of the DM Act1 or Section 188 of the IPC3

are not

attracted at all.

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53. Consequently, we accept the first prayer made by the petitioner in

this Writ Petition and quash FIR No.0053 dated 6.5.2020 registered at

Police Station Kumarsain, District Shimla, Himachal Pradesh and any

proceedings arising therefrom. We must however clarify that the issues

concerning ownership of HW News which had aired the talk show or the

nature and effect of violation, if any, of the Norms of Journalistic conduct

framed by the Press Council of India, have not been gone into by us as they

do not strictly are of any concern for determining first prayer made in the

writ petition.

54. We now come to the second prayer made in the writ petition, in

support of which reliance was placed by the petitioner on the decisions of

this Court in Jacob Mathew4

and Lalita Kumari5

. In Jacob Mathew4

, a

Bench of three Judges of this Court issued certain guidelines with respect

to the prosecution of medical professionals.

“Guidelines — Re: prosecuting medical professionals

50. As we have noticed hereinabove that the cases of doctors

(surgeons and physicians) being subjected to criminal

prosecution are on an increase. Sometimes such

prosecutions are filed by private complainants and

sometimes by the police on an FIR being lodged and

cognizance taken. The investigating officer and the private

complainant cannot always be supposed to have knowledge

of medical science so as to determine whether the act of the

accused medical professional amounts to a rash or negligent

act within the domain of criminal law under Section 304-A

IPC. The criminal process once initiated subjects the medical

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professional to serious embarrassment and sometimes

harassment. He has to seek bail to escape arrest, which may

or may not be granted to him. At the end he may be

exonerated by acquittal or discharge but the loss which he

has suffered to his reputation cannot be compensated by any

standards.

51. We may not be understood as holding that doctors can

never be prosecuted for an offence of which rashness or

negligence is an essential ingredient. All that we are doing is

to emphasise the need for care and caution in the interest of

society; for, the service which the medical profession

renders to human beings is probably the noblest of all, and

hence there is a need for protecting doctors from frivolous

or unjust prosecutions. Many a complainant prefer recourse

to criminal process as a tool for pressurising the medical

professional for extracting uncalled for or unjust

compensation. Such malicious proceedings have to be

guarded against.

52. Statutory rules or executive instructions incorporating

certain guidelines need to be framed and issued by the

Government of India and/or the State Governments in

consultation with the Medical Council of India. So long as it

is not done, we propose to lay down certain guidelines for

the future which should govern the prosecution of doctors

for offences of which criminal rashness or criminal

negligence is an ingredient. A private complaint may not be

entertained unless the complainant has produced prima

facie evidence before the court in the form of a credible

opinion given by another competent doctor to support the

charge of rashness or negligence on the part of the accused

doctor. The investigating officer should, before proceeding

against the doctor accused of rash or negligent act or

omission, obtain an independent and competent medical

opinion preferably from a doctor in government service,

qualified in that branch of medical practice who can

normally be expected to give an impartial and unbiased

opinion applying the Bolam67 test to the facts collected in the

investigation. A doctor accused of rashness or negligence,

may not be arrested in a routine manner (simply because a

67 Balam vs. Friern Hospital Management Committee: (1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)

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charge has been levelled against him). Unless his arrest is

necessary for furthering the investigation or for collecting

evidence or unless the investigating officer feels satisfied

that the doctor proceeded against would not make himself

available to face the prosecution unless arrested, the arrest

may be withheld.”

(Emphasis supplied)

55. Before issuing the aforesaid guidelines, this Court considered the

illustrations mentioned below Sections 88, 92 and 93 of the IPC3

and some

relevant decisions, whereafter conclusions were summed up as under:-

“Conclusions summed up

48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to

do something which a reasonable man guided by those

considerations which ordinarily regulate the conduct of

human affairs would do, or doing something which a prudent

and reasonable man would not do. The definition of

negligence as given in Law of Torts, Ratanlal & Dhirajlal

(edited by Justice G.P. Singh), referred to hereinabove, holds

good. Negligence becomes actionable on account of injury

resulting from the act or omission amounting to negligence

attributable to the person sued. The essential components of

negligence are three: “duty”, “breach” and “resulting

damage”.

(2) Negligence in the context of the medical profession

necessarily calls for a treatment with a difference. To infer

rashness or negligence on the part of a professional, in

particular a doctor, additional considerations apply. A case

of occupational negligence is different from one of

professional negligence. A simple lack of care, an error of

judgment or an accident, is not proof of negligence on the

part of a medical professional. So long as a doctor follows a

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practice acceptable to the medical profession of that day, he

cannot be held liable for negligence merely because a better

alternative course or method of treatment was also available

or simply because a more skilled doctor would not have

chosen to follow or resort to that practice or procedure which

the accused followed. When it comes to the failure of taking

precautions, what has to be seen is whether those precautions

were taken which the ordinary experience of men has found

to be sufficient; a failure to use special or extraordinary

precautions which might have prevented the particular

happening cannot be the standard for judging the alleged

negligence. So also, the standard of care, while assessing the

practice as adopted, is judged in the light of knowledge

available at the time of the incident, and not at the date of

trial. Similarly, when the charge of negligence arises out of

failure to use some particular equipment, the charge would

fail if the equipment was not generally available at that

particular time (that is, the time of the incident) at which it

is suggested it should have been used.

(3) A professional may be held liable for negligence on one

of the two findings: either he was not possessed of the

requisite skill which he professed to have possessed, or, he

did not exercise, with reasonable competence in the given

case, the skill which he did possess. The standard to be

applied for judging, whether the person charged has been

negligent or not, would be that of an ordinary competent

person exercising ordinary skill in that profession. It is not

possible for every professional to possess the highest level

of expertise or skills in that branch which he practices. A

highly skilled professional may be possessed of better

qualities, but that cannot be made the basis or the yardstick

for judging the performance of the professional proceeded

against on indictment of negligence.

(4) The test for determining medical negligence as laid down

in Bolam case67 holds good in its applicability in India.

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(5) The jurisprudential concept of negligence differs in civil

and criminal law. What may be negligence in civil law may

not necessarily be negligence in criminal law. For

negligence to amount to an offence, the element of mens

rea must be shown to exist. For an act to amount to criminal

negligence, the degree of negligence should be much higher

i.e. gross or of a very high degree. Negligence which is

neither gross nor of a higher degree may provide a ground

for action in civil law but cannot form the basis for

prosecution.

(6) The word “gross” has not been used in Section 304-A

IPC, yet it is settled that in criminal law negligence or

recklessness, to be so held, must be of such a high degree as

to be “gross”. The expression “rash or negligent act” as

occurring in Section 304-A IPC has to be read as qualified

by the word “grossly”.

(7) To prosecute a medical professional for negligence under

criminal law it must be shown that the accused did

something or failed to do something which in the given facts

and circumstances no medical professional in his ordinary

senses and prudence would have done or failed to do. The

hazard taken by the accused doctor should be of such a

nature that the injury which resulted was most likely

imminent.”

56. Bolam’s67

case referred to in conclusion (4) was dealt with in

paragraph 20 of the decision as follows:-

“20. The water of Bolam67

test has ever since flown and

passed under several bridges, having been cited and dealt

with in several judicial pronouncements, one after the other

and has continued to be well received by every shore it has

touched as neat, clean and a well-condensed one. After a

review of various authorities Bingham, L.J. in his speech

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in Eckersley v. Binnie68 test in the following words: (Con

LR p. 79)

“From these general statements it follows

that a professional man should command the

corpus of knowledge which forms part of the

professional equipment of the ordinary member

of his profession. He should not lag behind other

ordinary assiduous and intelligent members of his

profession in the knowledge of new advances,

discoveries and developments in his field. He

should have such an awareness as an ordinarily

competent practitioner would have of the

deficiencies in his knowledge and the limitations

on his skill. He should be alert to the hazards and

risks in any professional task he undertakes to the

extent that other ordinarily competent members

of the profession would be alert. He must bring to

any professional task he undertakes no less

expertise, skill and care than other ordinarily

competent members of his profession would

bring, but need bring no more. The standard is

that of the reasonable average. The law does not

require of a professional man that he be a paragon

combining the qualities of polymath and

prophet.” (Charlesworth & Percy, ibid., para

8.04)”

57. What the decision makes clear is that before a medical professional

is prosecuted for negligence in criminal law, some threshold requirements

ought to be satisfied, otherwise an unwarranted prosecution may not only

result in great prejudice to the concerned medical professional but would

also not instill a sense of confidence in the medical professionals for

discharging their duties. Considering Section 88 of the IPC3

falling in

68 (1988) 18 Con LR 1

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Chapter titled “General Exceptions” and various illustrations as stated

above, adequate protection was found necessary to be extended to medical

professionals, whereafter aforestated guidelines were issued by this Court.

58. The Constitution Bench of this Court in Lalita Kumari’s5 was

called upon to consider, inter alia, the effect of Section 154 of the IPC3

One of the questions dealt with by the Constitution Bench was whether the

police would be required to make any preliminary inquiry before

registration of an FIR. Taking note of the decision of this Court in Jacob

Mathew4

, this Court in Lalita Kumari’s5

case observed:

“Exceptions

115. Although, we, in unequivocal terms, hold that Section

154 of the Code postulates the mandatory registration of

FIRs on receipt of all cognizable offences, yet, there may be

instances where preliminary inquiry may be required owing

to the change in genesis and novelty of crimes with the

passage of time. One such instance is in the case of

allegations relating to medical negligence on the part of

doctors. It will be unfair and inequitable to prosecute a

medical professional only on the basis of the allegations in

the complaint.

116. In the context of medical negligence cases, in Jacob

Mathew4

, it was held by this Court as under : (SCC p. 35,

paras 51-52)

“51. We may not be understood as holding that

doctors can never be prosecuted for an offence of

which rashness or negligence is an essential

ingredient. All that we are doing is to emphasise

the need for care and caution in the interest of

society; for, the service which the medical

profession renders to human beings is probably

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the noblest of all, and hence there is a need for

protecting doctors from frivolous or unjust

prosecutions. Many a complainant prefer

recourse to criminal process as a tool for

pressurising the medical professional for

extracting uncalled for or unjust compensation.

Such malicious proceedings have to be guarded

against.

52. Statutory rules or executive instructions

incorporating certain guidelines need to be

framed and issued by the Government of India

and/or the State Governments in consultation

with the Medical Council of India. So long as it

is not done, we propose to lay down certain

guidelines for the future which should govern the

prosecution of doctors for offences of which

criminal rashness or criminal negligence is an

ingredient. A private complaint may not be

entertained unless the complainant has produced

prima facie evidence before the court in the form

of a credible opinion given by another competent

doctor to support the charge of rashness or

negligence on the part of the accused doctor. The

investigating officer should, before proceeding

against the doctor accused of rash or negligent act

or omission, obtain an independent and

competent medical opinion preferably from a

doctor in government service, qualified in that

branch of medical practice who can normally be

expected to give an impartial and unbiased

opinion applying the Bolam67

test to the facts

collected in the investigation. A doctor accused

of rashness or negligence, may not be arrested in

a routine manner (simply because a charge has

been levelled against him). Unless his arrest is

necessary for furthering the investigation or for

collecting evidence or unless the investigating

officer feels satisfied that the doctor proceeded

against would not make himself available to face

the prosecution unless arrested, the arrest may be

withheld.”

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117. In the context of offences relating to corruption, this

Court in P. Sirajuddin v. State of Madras69, expressed the

need for a preliminary inquiry before proceeding against

public servants.

118. Similarly, in CBI v. Tapan Kumar Singh70, this Court

has validated a preliminary inquiry prior to registering an

FIR only on the ground that at the time the first information

is received, the same does not disclose a cognizable offence.

119. Therefore, in view of various counterclaims regarding

registration or non-registration, what is necessary is only that

the information given to the police must disclose the

commission of a cognizable offence. In such a situation,

registration of an FIR is mandatory. However, if no

cognizable offence is made out in the information given,

then the FIR need not be registered immediately and perhaps

the police can conduct a sort of preliminary verification or

inquiry for the limited purpose of ascertaining as to whether

a cognizable offence has been committed. But, if the

information given clearly mentions the commission of a

cognizable offence, there is no other option but to register an

FIR forthwith. Other considerations are not relevant at the

stage of registration of FIR, such as, whether the information

is falsely given, whether the information is genuine, whether

the information is credible, etc. These are the issues that have

to be verified during the investigation of the FIR. At the

stage of registration of FIR, what is to be seen is merely

whether the information given ex facie discloses the

commission of a cognizable offence. If, after investigation,

the information given is found to be false, there is always an

option to prosecute the complainant for filing a false FIR.”

Thereafter, directions were issued in paragraph 120 of the decision and

direction 120.6 was as under:

“Conclusion/Directions

120. In view of the aforesaid discussion, we hold:

69 (1970) 1 SCC 595 : 1970 SCC (Cri) 240

70 (2003) 6 SCC 175 : 2003 SCC (Cri) 1305

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….. ….. …..

120.6. As to what type and in which cases

preliminary inquiry is to be conducted will

depend on the facts and circumstances of each

case. The category of cases in which preliminary

inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(d) Corruption cases

(e) Cases where there is abnormal

delay/laches in initiating criminal

prosecution, for example, over 3 months'

delay in reporting the matter without

satisfactorily explaining the reasons for

delay.

The aforesaid are only illustrations and not

exhaustive of all conditions which may warrant

preliminary inquiry.”

59. We may now notice the relevant observations in P. Sirajuddin, Etc.

vs. State of Madras, Etc.71, which were:-

“17. In our view the procedure adopted against the appellant

before the laying of the first information report though not

in terms forbidden by law, was so unprecedented and

outrageous as to shock one's sense of justice and fairplay. No

doubt when allegations about dishonesty of a person of the

appellant's rank were brought to the notice of the Chief

Minister it was his duty to direct as enquiry into the matter.

The Chief Minister in our view pursued the right course. The

High Court was not impressed by the allegation of the

appellant that the Chief Minister was moved to take an

initiative at the instance of person who was going to benefit

by the retirement of the appellant and who was said to be a

relation of the Chief Minister. The High Court rightly held

that the relationship between the said person and the Chief

Minister, if any, was so distant that it could not possibly have

71 (1970) 1 SCC 595

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influenced him and we are of the same view. Before a public

servant, whatever be his status, is publicly charged with acts

of dishonesty which amount to serious misdemeanour or

misconduct of the type alleged in this case and a first

information is lodged against him, there must be some

suitable preliminary enquiry into the allegations by a

responsible officer. The lodging of such a report against a

person, specially one who like the appellant occupied the top

position in a department, even if baseless, would do

incalculable harm not only to the officer in particular but to

the department he belonged to, in general. If the Government

had set up a Vigilance and Anti-Corruption Department as

was done in the State of Madras and the said department was

entrusted with enquiries of this kind, no exception can of

taken to an enquiry by officers of this department but any

such enquiry must proceed in a fair and reasonable manner.

The enquiring officer must not act under any preconceived

idea of guilt of the person whose conduct was being enquired

into or pursue the enquiry in such a manner as to lead to an

inference that he was bent upon securing the conviction of

the said person by adopting measures which are of doubtful

validity or sanction. The means adopted no less than the end

to be achieved must be impeccable. In ordinary departmental

proceedings against a Government servant charged with

delinquency, the normal practice before the issue of a

charge-sheet is for some one in authority to take down

statements of persons involved in the matter and to examine

documents which have a bearing on the issue involved. It is

only thereafter that a charge-sheet is submitted and a fullscale enquiry is launched. When the enquiry is to be held for

the purpose of finding out whether criminal proceedings are

to be restored to the scope thereof must be limited to the

examination of persons who have knowledge of the affairs

of the delinquent officer and documents bearing on the same

to find out whether there is prima facie evidence of guilt of

the officer. Thereafter the ordinary law of the land must take

its course and further inquiry be proceeded with in terms of

the Code of Criminal Procedure by lodging a first

information report.

….. ….. …..

21. In our view the enquiring officer pursued the

investigation with such zeal and vigour that he even enquired

into and took down statements as persons who were

supposed to have provided the appellant with articles of food

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worth trifling sums of money long before the launching of

the enquiry. The whole course of investigation as disclosed

in the affidavits is suggestive of some pre-determination of

the guilt of the appellant. The enquiring officer was a highranking police officer and it is surprising that simply because

he was technically not exercising power under Chapter 14 of

the Criminal Procedure Code in that a formal first

information report had not been lodged he overlooked or

deliberately overstepped the limits of investigation

contained in the said chapter. He recorded self-incriminating

statements of a number of persons and not only secured their

signatures thereto obviously with the idea of pinning them

down to those but went to the length of providing certificates

of immunity to at least two of them from the evil effects of

their own misdeeds as recorded. It was said that the

certificates were given after the statements had been signed.

It is difficult to believe that the statements could have been

made before the grant of oral assurances regarding the issue

of written certificates. There can be very little doubt that the

persons who were given such immunity had made the

statements incriminating themselves and the appellant under

inducement, threat or promise as mentioned in Section 24 of

the Indian Evidence Act.”

The statement in paragraph 17 certainly spoke of requirement of a

preliminary inquiry before a first information report is lodged against a

public servant.

60. Mr. Vikas Singh, learned Senior Advocate for the petitioner

strongly relied upon paragraph 120.6 of Lalita Kumari5

to submit that the

category of cases in which preliminary inquiry could possibly be insisted

upon were detailed by this Court but it was clearly stated that such

categorisation was only illustrative and not exhaustive of all conditions

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100

which may warrant preliminary enquiry. It was submitted that there was

strong similarity between the medical professionals and journalists and the

latter were also entitled to certain safeguards and protection; that journalists

would also discharge function of educating and altering the public in

general and as such they, as a class would also require similar protection.

On the other hand, Mr. S.V. Raju, learned Additional Solicitor

General relied upon two recent decisions in Union of India v. State of

Maharashtra and others72 and in Social Action Forum For Manav

Adhikar and another v. Union of India, Ministry of Law and Justice and

others73 of this Court rendered by Benches of three Judges where directions

similar to those issued in the case of Jacob Mathew4 were not accepted.

61. In Rajesh Sharma and others v. State of Uttar Pradesh and

another74 a Bench of two Judges of this Court (to which one of us, Lalit, J.

was a party) issued following directions in cases where the offence alleged

was one punishable under Section 498-A of the IPC3

“19. Thus, after careful consideration of the whole issue, we

consider it fit to give the following directions:

19.1 In every district one or more Family Welfare

Committees be constituted by the District Legal Services

72 (2020) 4 SCC 761

73 (2018) 10 SCC 443

(2018) 10 SCC 472

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101

Authorities preferably comprising of three members. The

constitution and working of such committees may be

reviewed from time to time and at least once in a year by the

District and Sessions Judge of the district who is also the

Chairman of the District Legal Services Authority.

19.2. The Committees may be constituted out of paralegal

volunteers/social workers/retired persons/wives of working

officers/other citizens who may be found suitable and

willing.

19.3. The Committee members will not be called as

witnesses.

19.4. Every complaint under Section 498-A received by the

police or the Magistrate be referred to and looked into by

such Committee. Such Committee may have interaction with

the parties personally or by means of telephone or any other

mode of communication including electronic

communication.

19.5. Report of such Committee be given to the authority by

whom the complaint is referred to it latest within one month

from the date of receipt of complaint.

19.6. The Committee may give its brief report about the

factual aspects and its opinion in the matter.

19.7. Till report of the Committee is received, no arrest

should normally be effected.

19.8. The report may be then considered by the investigating

officer or the Magistrate on its own merit.

19.9. Members of the Committee may be given such basic

minimum training as may be considered necessary by the

Legal Services Authority from time to time.

19.10. The members of the Committee may be given such

honorarium as may be considered viable.

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102

19.11. It will be open to the District and Sessions Judge to

utilise the cost fund wherever considered necessary and

proper.

19.12. Complaints under Section 498-A and other connected

offences may be investigated only by a designated

investigating officer of the area. Such designations may be

made within one month from today. Such designated officer

may be required to undergo training for such duration (not

less than one week) as may be considered appropriate. The

training may be completed within four months from today.

19.13 In cases where a settlement is reached, it will be open

to the District and Sessions Judge or any other senior judicial

officer nominated by him in the district to dispose of the

proceedings including closing of the criminal case if dispute

primarily relates to matrimonial discord.

19.14 If a bail application is filed with at least one clear day's

notice to the Public Prosecutor/complainant, the same may

be decided as far as possible on the same day. Recovery of

disputed dowry items may not by itself be a ground for

denial of bail if maintenance or other rights of wife/minor

children can otherwise be protected. Needless to say that in

dealing with bail matters, individual roles, prima facie truth

of the allegations, requirement of further arrest/custody and

interest of justice must be carefully weighed.

19.15. In respect of persons ordinarily residing out of India

impounding of passports or issuance of red corner notice

should not be a routine.

19.16. It will be open to the District Judge or a designated

senior judicial officer nominated by the District Judge to

club all connected cases between the parties arising out of

matrimonial disputes so that a holistic view is taken by the

court to whom all such cases are entrusted.

19.17. Personal appearance of all family members and

particularly outstation members may not be required and the

trial court ought to grant exemption from personal

appearance or permit appearance by videoconferencing

without adversely affecting progress of the trial.

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103

19.18. These directions will not apply to the offences

involving tangible physical injuries or death.”

Direction No.19.4 had thus contemplated referral of every complaint

under Section 498A IPC3

to a Committee and it was only after the report of

the Committee, arrest if at all, could be effected. In terms of direction 19.12

it was directed that all complaints under Section 499A IPC3 be investigated

only by a Designated Investigating Officer of the area. While issuing these

directions, this Court had inter alia relied upon the decision in Arnesh

Kumar v. State of Bihar75 as well as the decision in Lalita Kumari7

62. The correctness of the decision in Rajesh Sharma and others72

was questioned before a Bench of three Judges in Social Action Forum For

Manav Adhikar and another v. Union of India, Ministry of Law and

Justice and others76

. This Court in paragraph 33 of its Judgment referred

to paragraph 120.6 of the decision in Lalita Kumari5

and thereafter made

following observations:-

“37. On a perusal of the aforesaid paragraphs, we find that

the Court has taken recourse to fair procedure and

workability of a provision so that there will be no unfairness

and unreasonableness in implementation and for the said

purpose, it has taken recourse to the path of interpretation.

The core issue is whether the Court in Rajesh

75 (2014) 8 SCC 273

76 (2018) 10 SCC 443

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104

Sharma72 could, by the method of interpretation, have issued

such directions. On a perusal of the directions, we find that

the Court has directed constitution of the Family Welfare

Committees by the District Legal Services Authorities and

prescribed the duties of the Committees. The prescription of

duties of the Committees and further action therefor, as we

find, are beyond the Code and the same does not really flow

from any provision of the Code. There can be no denial that

there has to be just, fair and reasonable working of a

provision. The legislature in its wisdom has made the

offence under Section 498-A IPC cognizable and nonbailable. The fault lies with the investigating agency which

sometimes jumps into action without application of mind.

The directions issued in Arnesh Kumar73 are in consonance

with the provisions contained in Section 41 CrPC and

Section 41-A CrPC. Similarly, the guidelines stated

in Joginder Kumar v. State of U.P.77, and D.K. Basu v. State

of W.B.78, are within the framework of the Code and the

power of superintendence of the authorities in the

hierarchical system of the investigating agency. The purpose

has been to see that the investigating agency does not abuse

the power and arrest people at its whim and fancy.

38. In Rajesh Sharma72

, there is introduction of a third

agency which has nothing to do with the Code and that apart,

the Committees have been empowered to suggest a report

failing which no arrest can be made. The directions to settle

a case after it is registered is not a correct expression of law.

A criminal proceeding which is not compoundable can be

quashed by the High Court under Section 482 CrPC. When

settlement takes place, then both the parties can file a

petition under Section 482 CrPC and the High Court,

considering the bona fide of the petition, may quash the

same. The power rests with the High Court. In this regard,

we may reproduce a passage from a three-Judge Bench

in Gian Singh v. State of Punjab79, In the said case, it has

been held that:

“61. … Inherent power is of wide plenitude with no

statutory limitation but it has to be exercised in accord

with the guideline engrafted in such power viz.: (i) to

secure the ends of justice, or (ii) to prevent abuse of

77 (1994) 4 SCC 260

78 (1997) 1 SCC 416

79 (2012) 10 SCC 303

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105

the process of any court. In what cases power to quash

the criminal proceeding or complaint or FIR may be

exercised where the offender and the victim have

settled their dispute would depend on the facts and

circumstances of each case and no category can be

prescribed. However, before exercise of such power,

the High Court must have due regard to the nature and

gravity of the crime. Heinous and serious offences of

mental depravity or offences like murder, rape,

dacoity, etc. cannot be fittingly quashed even though

the victim or victim's family and the offender have

settled the dispute. Such offences are not private in

nature and have a serious impact on society.

Similarly, any compromise between the victim and

the offender in relation to the offences under special

statutes like the Prevention of Corruption Act or the

offences committed by public servants while working

in that capacity, etc.; cannot provide for any basis for

quashing criminal proceedings involving such

offences. But the criminal cases having

overwhelmingly and predominatingly civil flavour

stand on a different footing for the purposes of

quashing, particularly the offences arising from

commercial, financial, mercantile, civil, partnership

or such like transactions or the offences arising out of

matrimony relating to dowry, etc. or the family

disputes where the wrong is basically private or

personal in nature and the parties have resolved their

entire dispute. In this category of cases, the High

Court may quash the criminal proceedings if in its

view, because of the compromise between the

offender and the victim, the possibility of conviction

is remote and bleak and continuation of the criminal

case would put the accused to great oppression and

prejudice and extreme injustice would be caused to

him by not quashing the criminal case despite full and

complete settlement and compromise with the

victim.”

39. Though Rajesh Sharma72 takes note of Gian Singh78, yet

it seems to have applied it in a different manner. The seminal

issue is whether these directions could have been issued by

the process of interpretation. This Court, in furtherance of a

fundamental right, has issued directions in the absence of

law in certain cases, namely, Lakshmi Kant Pandey v. Union

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106

of India80

, Vishaka v. State of Rajasthan81 and Common

Cause v. Union of India82, and some others. In the obtaining

factual matrix, there are statutory provisions and judgments

in the field and, therefore, the directions pertaining to

constitution of a committee and conferment of power on the

said committee are erroneous. However, the directions

pertaining to Red Corner Notice, clubbing of cases and

postulating that recovery of disputed dowry items may not

by itself be a ground for denial of bail, would stand on a

different footing. They are protective in nature and do not

sound a discordant note with the Code. When an application

for bail is entertained, proper conditions have to be imposed

but recovery of disputed dowry items may not by itself be a

ground while rejecting an application for grant of bail under

Section 498-A IPC. That cannot be considered at that stage.

Therefore, we do not find anything erroneous in Directions

19.14 and 19.15. So far as Directions 19.16 and 19.17 are

concerned, an application has to be filed either under Section

205 CrPC or Section 317 CrPC depending upon the stage at

which the exemption is sought.

….. ….. …..

42. In the aforesaid analysis, while declaring the directions

pertaining to Family Welfare Committee and its constitution

by the District Legal Services Authority and the power

conferred on the Committee is impermissible. Therefore, we

think it appropriate to direct that the investigating officers be

careful and be guided by the principles stated in Joginder

Kumar76

, D.K. Basu77

, Lalita Kumari5

and Arnesh Kumar73

It will also be appropriate to direct the Director General of

Police of each State to ensure that the investigating officers

who are in charge of investigation of cases of offences under

Section 498-A IPC should be imparted rigorous training

with regard to the principles stated by this Court relating to

arrest.

43. In view of the aforesaid premises, the directions

contained in paras 19.1 to 19.11 as a whole are not in accord

with the statutory framework and the direction issued in para

19.12 shall be read in conjunction with the direction given

hereinabove.

80 (1984) 2 SCC 244

81 (1997) 6 SCC 241

82 (2018) 5 SCC 1

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44. Direction 19.13 is modified to the extent that if a

settlement is arrived at, the parties can approach the High

Court under Section 482 of the Code of Criminal Procedure

and the High Court, keeping in view the law laid down

in Gian Singh78, shall dispose of the same.

45. As far as Directions 19.14, 19.15, 19.16 and 19.17 are

concerned, they shall be governed by what we have stated in

para 39.

46. With the aforesaid modifications in the directions issued

in Rajesh Sharma73, the writ petitions and criminal appeal

stand disposed of. There shall be no order as to costs.”

It was thus held that directions 19.1 to 19.11 were not in conformity

with the statutory framework, while directions 19.12 to 19.17 were suitably

modified.

63. A Bench of two Judges of this Court (to which one of us i.e. Lalit,

J. was a party) in its decision in Dr. Subhash Kashinath Mahajan v. State

of Maharashtra and another83 issued following directions in connection

with prosecutions instituted in relation to the offences punishable under the

provisions of the Scheduled Cases and Scheduled Tribes (Prevention of

Atrocities) Act, 1989; (the “Atrocities Act”, or “the 1989 Act”, for short):

“79. Our conclusions are as follows:

79.1. Proceedings in the present case are clear abuse of

process of court and are quashed.

83 (2018) 6 SCC 454

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108

79.2. There is no absolute bar against grant of anticipatory

bail in cases under the Atrocities Act if no prima facie case

is made out or where on judicial scrutiny the complaint is

found to be prima facie mala fide. We approve the view

taken and approach of the Gujarat High Court in Pankaj D.

Suthar v. State of Gujarat84, and N.T. Desai v. State of

Gujarat85, and clarify the judgments of this Court in State of

M.P. v. Ram Kishna Balothia86, and Manju Devi v. Onkarjit

Singh Ahluwalia87;

79.3. In view of acknowledged abuse of law of arrest in

cases under the Atrocities Act, arrest of a public servant can

only be after approval of the appointing authority and of a

non-public servant after approval by the SSP which may be

granted in appropriate cases if considered necessary for

reasons recorded. Such reasons must be scrutinised by the

Magistrate for permitting further detention.

79.4. To avoid false implication of an innocent, a

preliminary enquiry may be conducted by the DSP

concerned to find out whether the allegations make out a

case under the Atrocities Act and that the allegations are not

frivolous or motivated.

79.5. Any violation of Directions 79.3 and 79.4 will be

actionable by way of disciplinary action as well as contempt.

79.6. The above directions are prospective.”

During the course of its decision, the Bench had noticed paragraph

120.6 of the decision in Lalita Kumari5

as well as the decision in P.

Sirajuddin69

. In terms of directions in paragraph 79.3 and 79.4, it was

84 (1992) 1 Guj LR 405

85 (1997) 2 Guj LR 942

86 (1995) 3 SCC 221 : 1995 SCC (Cri) 439

87 (2017) 13 SCC 439 : (2017) 4 SCC (Cri) 662

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directed that an arrest of a public servant could be effected only after

approval of the appointing authority and that of a non-public servant could

be effected only after approval by the Special Superintendent of Police;

that the reasons for arrest could be scrutinised by the Magistrate for

permitting further detention; and that a preliminary enquiry be conducted

by the DSP concerned to find out whether the allegations making out a

case under the provisions of Atrocities Act were frivolous or motivated.

64. Union of India being aggrieved, filed Review Petition questioning

the correctness of the directions issued in Dr. Subhash Kashinath

Mahajan82. A Bench of three Judges of this Court considered the matter in

Union of India v. State of Maharashtra and others70. Various decisions

were noticed by this Court and it was concluded:

“In re : Sanction of the appointing authority

59. Concerning public servants, the provisions contained in

Section 197 CrPC provide protection by prohibiting

cognizance of the offence without the sanction of the

appointing authority and the provision cannot be applied at

the stage of the arrest. That would run against the spirit of

Section 197 CrPC. Section 41 CrPC authorises every police

officer to carry out an arrest in case of a cognizable offence

and the very definition of a cognizable offence in terms of

Section 2(c) CrPC is one for which police officer may arrest

without warrant.

60. In case any person apprehends that he may be arrested,

harassed and implicated falsely, he can approach the High

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110

Court for quashing the FIR under Section 482 as observed

in State of Orissa v. Debendra Nath Padhi88

61. While issuing guidelines mentioned above approval of

appointing authority has been made imperative for the arrest

of a public servant under the provisions of the Act in case,

he is an accused of having committed an offence under the

1989 Act. Permission of the appointing authority to arrest a

public servant is not at all statutorily envisaged; it is

encroaching on a field which is reserved for the legislature.

The direction amounts to a mandate having legislative

colour which is a field not earmarked for the courts.

62. The direction is discriminatory and would cause several

legal complications. On what basis the appointing authority

would grant permission to arrest a public servant? When the

investigation is not complete, how can it determine whether

public servant is to be arrested or not? Whether it would be

appropriate for appointing authority to look into case diary

in a case where its sanction for prosecution may not be

required in an offence which has not happened in the

discharge of official duty. Approaching appointing authority

for approval of arrest of a public servant in every case under

the 1989 Act is likely to consume sufficient time. The

appointing authority is not supposed to know the ground

realities of the offence that has been committed, and arrest

sometimes becomes necessary forthwith to ensure further

progress of the investigation itself. Often the investigation

cannot be completed without the arrest. There may not be

any material before the appointing authority for deciding the

question of approval. To decide whether a public servant

should be arrested or not is not a function of the appointing

authority, it is wholly extra-statutory. In case the appointing

authority holds that a public servant is not to be arrested and

declines approval, what would happen, as there is no

provision for grant of anticipatory bail. It would tantamount

to taking away functions of court. To decide whether an

accused is entitled to bail under Section 438 in case no prima

facie case is made out or under Section 439 is the function

of the Court. The direction of the appointing authority not to

arrest may create conflict with the provisions of the 1989 Act

and is without statutory basis.

88 (2005) 1 SCC 568 : 2005 SCC (Cri) 415

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63. By the guidelines issued, the anomalous situation may

crop up in several cases. In case the appointing authority

forms a view that as there is no prima facie case the

incumbent is not to be arrested, several complications may

arise. For the arrest of an offender, may be a public servant,

it is not the provision of the general law of CrPC that

permission of the appointing authority is necessary. No such

statutory protection is provided to a public servant in the

matter of arrest under IPC and CrPC as such it would be

discriminatory to impose such rider in the cases under the

1989 Act. Only in the case of discharge of official duties,

some offence appears to have been committed, in that case,

sanction to prosecute may be required and not otherwise. In

case the act is outside the purview of the official discharge

of duty, no such sanction is required.

64. The appointing authority cannot sit over an FIR in case

of cognizable, non-bailable offence and investigation made

by the police officer; this function cannot be conferred upon

the appointing authority as it is not envisaged either in CrPC

or the 1989 Act. Thus, this rider cannot be imposed in

respect of the cases under the 1989 Act, may be that

provisions of the Act are sometimes misused, exercise of

power of approval of arrest by the appointing authority is

wholly impermissible, impractical besides it encroaches

upon the field reserved for the legislature and is repugnant

to the provisions of general law as no such rider is envisaged

under the general law.

65. Assuming it is permissible to obtain the permission of

the appointing authority to arrest the accused, would be

further worsening the position of the members of the

Scheduled Castes and Scheduled Tribes. If they are not to be

given special protection, they are not to be further put in a

disadvantageous position. The implementation of the

condition may discourage and desist them even to approach

the police and would cast a shadow of doubt on all members

of the Scheduled Castes and Scheduled Tribes which cannot

be said to be constitutionally envisaged. Other castes can

misuse the provisions of law; also, it cannot be said that

misuse of law takes place by the provisions of the 1989 Act.

In case the direction is permitted to prevail, days are not far

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112

away when writ petition may have to be filed to direct the

appointing authority to consider whether the accused can be

arrested or not and as to the reasons recorded by the

appointing authority to permit or deny the arrest. It is not the

function of the appointing authority to intermeddle with a

criminal investigation. If at the threshold, approval of the

appointing authority is made necessary for arrest, the very

purpose of the Act is likely to be frustrated. Various

complications may arise. Investigation cannot be completed

within the specified time, nor trial can be completed as

envisaged. The 1989 Act delay would be adding to the

further plight of the downtrodden class.

In re : Approval of arrest by the SSP in the case of a nonpublic servant

66. Inter alia for the reasons as mentioned earlier, we are of

the considered opinion that requiring the approval of SSP

before an arrest is not warranted in such a case as that would

be discriminatory and against the protective discrimination

envisaged under the Act. Apart from that, no such guidelines

can prevail, which are legislative. When there is no provision

for anticipatory bail, obviously arrest has to be made.

Without doubting bona fides of any officer, it cannot be left

at the sweet discretion of the incumbent howsoever high.

The approval would mean that it can also be ordered that the

person is not to be arrested then how the investigation can be

completed when the arrest of an incumbent, is necessary, is

not understandable. For an arrest of the accused such a

condition of approval of SSP could not have been made a

sine qua non, it may delay the matter in the cases under the

1989 Act.

In re : Requiring the Magistrate to scrutinise the reasons

for permitting further detention

67. As per the guidelines issued by this Court, the public

servant can be arrested after approval by the appointing

authority and that of a non-public servant after the approval

of SSP. The reasons so recorded have to be considered by

the Magistrate for permitting further detention. In case of

approval has not been granted, this exercise has not been

undertaken. When the offence is registered under the 1989

Act, the law should take its course no additional fetters are

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113

called for on arrest whether in case of a public servant or

non-public servant. Even otherwise, as we have not

approved the approval of arrest by appointing authority/SSP,

the direction to record reasons and scrutiny by the Magistrate

consequently stands nullified.

68. The direction has also been issued that the DSP should

conduct a preliminary inquiry to find out whether the

allegations make out a case under the Atrocities Act, and that

the allegations are not frivolous or motivated. In case a

cognizable offence is made out, the FIR has to be outrightly

registered, and no preliminary inquiry has to be made as held

in Lalita Kumari5 by a Constitution Bench. There is no such

provision in the Code of Criminal Procedure for preliminary

inquiry or under the SC/ST Act, as such direction is

impermissible. Moreover, it is ordered to be conducted by

the person of the rank of DSP. The number of DSP as per

stand of the Union of India required for such an exercise of

preliminary inquiry is not available. The direction would

mean that even if a complaint made out a cognizable offence,

an FIR would not be registered until the preliminary inquiry

is held. In case a preliminary inquiry concludes that

allegations are false or motivated, FIR is not to be registered,

in such a case how a final report has to be filed in the Court.

Direction 79.4 cannot survive for the other reasons as it puts

the members of the Scheduled Castes and Scheduled Tribes

in a disadvantageous position in the matter of procedure visà-vis to the complaints lodged by members of upper caste,

for later no such preliminary investigation is necessary, in

that view of the matter it should not be necessary to hold

preliminary inquiry for registering an offence under the

Atrocities Act, 1989.

70. We do not doubt that directions encroach upon the field

reserved for the legislature and against the concept of

protective discrimination in favour of downtrodden classes

under Article 15(4) of the Constitution and also

impermissible within the parameters laid down by this Court

for exercise of powers under Article 142 of the Constitution

of India. Resultantly, we are of the considered opinion that

Directions 79.3 and 79.4 issued by this Court deserve to be

and are hereby recalled and consequently we hold that

Direction 79.5, also vanishes. The review petitions are

allowed to the extent mentioned above.”

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114

Paragraph 68 of this decision clearly held that the direction to hold a

preliminary inquiry issued in Dr. Subhash Kashinath Mahajan82 was not

consistent with the statutory framework while it was held in paragraph 70

that the directions issued by the two Judge Bench amounted to

encroachment upon the field reserved for the legislature.

65. The submissions regarding the second prayer in the Writ Petition

are required to be considered in the backdrop of these decisions.

66. In Jacob Mathew4

, the guidelines were issued after noticing Section

88 of the IPC3

falling in Chapter titled “General Exceptions” as well as

illustrations below Sections 88, 92, and 93 of the IPC3

. The direction, “a

private complaint may not be entertained unless the complainant has

produced prima facie evidence before the Court in the form of a credible

opinion given by another competent doctor to support the charge of

rashness and negligence on the part of the accused doctor” was founded on

reasons including the status of a medical professional acknowledged by

Section 88 and illustrations as stated above as well as the fact that the

investigating officers and the private complainant would not be supposed

to be having knowledge about medical science so as to determine whether

the act of the accused professional amounted to a rash and negligent act

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115

within the domain of criminal law. It is true that the decision in P.

Sirajuddin69 did observe that there ought to be a preliminary inquiry before

a first information report is registered against a public servant of any status.

But today, with the establishment of Vigilance Cells in every Governmental

Department or organisation, the preliminary inquiries are not strictly

traceable to the direction issued by this Court. As a matter of fact, the

accepted norm – be it in the form of CBI Manual or like instruments is to

insist on a preliminary inquiry. One can also say that the protection to a

public servant is the underlying principle under certain provisions like

Section 197 of the Code and as such there is some foundation in statutory

provisions.

On the other hand, directions (19.1 to 19.11) issued in Rajesh

Sharma73

, were not found to be in accord with the statutory framework and

as such did not meet with the approval of the decision of the larger bench

of this Court. Similarly, the directions issued in Dr. Subhash Kashinath

Mahajan82

regarding holding of a preliminary inquiry were not found

consistent with the statutory framework. The second prayer made in the

Writ Petition is asking for the constitution of the Committee completely

outside the scope of the statutory framework. Similar such exercise of

directing constitution of a Committee was found inconsistent with the

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116

statutory framework in the decisions discussed above. We are conscious

that the directions issued in Jacob Mathew4 had received approval by a

Constitution Bench in Lalita Kumari5

, but those guidelines issued in Jacob

Mathew4

stand on parameter which are completely distinguishable from the

subsequent decisions of three Judge Bench of this Court in Union of India

vs. State of Maharashtra and Others70 and in Social Action Forum for

manav Adhikar and Another vs. Union of India, Ministry of Law and

Justice and Others71

. Any relief granted in terms of second prayer would

certainly, in our view, amount to encroachment upon the field reserved for

the legislature. We have, therefore, no hesitation in rejecting the prayer and

dismissing the Writ Petition to that extent.

67. It must however be clarified that every Journalist will be entitled to

protection in terms of Kedar Nath Singh2

, as every prosecution under

Sections 124A and 505 of the IPC3 must be in strict conformity with the

scope and ambit of said Sections as explained in, and completely in tune

with the law laid down in Kedar Nath Singh2

68. In conclusion:

i. We quash FIR No.0053 dated 6.5.2020, registered at Police Station

Kumarsain, Distt. Shimla, Himachal Pradesh, against the petitioner;

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117

ii. but reject the prayer that no FIR be registered against a person

belonging to media with at least 10 years of standing unless cleared

by the Committee as suggested.

69. Writ Petition is allowed to the aforesaid extent.

….……………………….J.

[UDAY UMESH LALIT]

….……………………….J.

[VINEET SARAN]

NEW DELHI;

JUNE 03, 2021.

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every Journalist will be entitled to protection in terms of Kedar Nath Singh2 , as every prosecution under Sections 124A and 505 of the IPC3 must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh