ALAVI Vs. STATE OF KERALA
LAWS(KER)-1982-1-6
HIGH COURT OF KERALA
Decided on January 06,1982

ALAVI Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) THE petitioners in this Crl. M. C. who are accused in crime No. 55/81, pending before the Judl. Magistrate of First Class, Mannantody seek to quash the said proceedings. THEy have moved this court under S. 482 of the Code of Criminal Procedure. Though the incident alleged against them on the basis of which proceedings are initiated before the Magistrate's Court occurred on 30-5-81 at 6 p m. petitioners have got the definite case that they were taken into custody illegally, each of them on different dates by the police, from 20-5-1981 onwards, long earlier to the alleged incident. However, I am not going into the conflicting region of facts, because 1 am only examining here whether proceedings against the petitioners can continue even assuming what is alleged and complained against them are true.
(2.) THE first Information Report in Crime No. 55/81 has been produced here and marked as Ext. P1. It is stated therein that the mannantody S. 1. of Police was doing patrol duty at about 6 p. m. on 30-5-81 when he saw the. accused leading a procession shouting slogans The FIR. further proceeds to state that shouting these slogans, the petitioners formed themselves into an unlawful assembly in the public road. Ext. P1 further states that the police consequently arrested the petitioners registering crime against them under S. 17 (1) of the Indian Criminal law Amendment Act (Act XIV of 1908 ). S. 17 (1) of the said Act reads: 17. Penalties (1) Whoever is a member of an unlawful association, or takes part in meetings of any such association or contributes or receives or solicits any contribution for the purpose of any such association, in any way assists the operations of any such association shall be punished with imprisonment for a term which may extend to six months or with fine or with both". Ext. P1 in no way indicates that the petitioners are members of an unlawful association, which is defined in S. 15 (2) of the same Act as: "unlawful association" means an association (a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or (b) which has been declared to be unlawful by the State govt. under the powers hereby conferred. " Not only is there no allegation that the petitioners are members of an unlawful association, there is no case that they have taken part in the activities of an unlawful association. As regards the slogans, however crude, uninformed and untrue, it cannot be said that the same would aid committing act of violence or intimidation. Even a group of the so-called intelligentsia and and even persons who are in power are criticising the judicial system and courts, some saying that the system gives a helping hand to the bourgeoisie and another section attacking the system alleging that the courts give a helping hand in giving unfettered freedom to law breakers. There are also criticism in various places against the parliamentary system also. These are to be expected in a democracy. If the judicial set up and the parliamentary system are sound in themselves and I have no doubt the great majority of citizens of this nation have no qualms about such soundness, they will survive the uninformed onslaughts made vocally against them. 6. But democracy would really be undermined if the shouting of slogans or making of demonstrations unnerve the executive and liberty of the citizen is infringed upon There is a direct nexus between democracy and rule of law. Without rule of law, there can be no proper dispensation of justice. As Justice Khanna had rightly remarked in one of his public speeches 'man's love of justice makes democracy possible but man's inclination to injustice makes democracy necessary'. Democracy and rule of law postulate recognition of civil rights and liberties. 7. What Justice Douglas of the American Supreme Court said in one of his great judgments about America should be true of India of gandhiji. "we have deemed it more costly to liberty to suppress a despised minority than to let them rent their spleen. . . We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world". 8. No doubt, unlawful acts, criminal acts should be sternly put down. Life and property should be free from danger on account of the activities of unsocial groups. But, there cannot be a swing to the other extreme by finding ghosts behind every act of dissent. 9. Ext. P2 would indicate that a report is filed before the learned Magistrate for adding S. 124a and 505 (c) of the Indian Penal Code in the FIR registered against the petitioners. The allegations in Ext. P1 will certainly not be within these provisions. . "124-A. Sedition 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 Govt. established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine". 505. Statements conducing to public mischief-Whoever makes, publishes or circulates any statement, rumour or report, a) b) c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. " I am not able to understand how these sections could be utilised assuming what is stated in Ext. P1 is true. Criticising the present judicial set up or functioning of the Parliament or Legislative Assemblies cannot be considered as bringing into hatred or contempt or exciting or attempting to excite disaffection towards the Government established by law. Nor are the slogans alleged to have been shouted by the petitioners capable of inciting any class or community of persons to commit any offence. I might add that seldom a day has passed in the State for the last three decades when such or similar slogans have not been shouted in one or other part of the State. 10. The scope of S. 124-A of the IPC. has been restricted by the Supreme Court to cases in which the speech, writing or other activity of the accused was prejudicial to public order or public security as it is only in such cases that it could be said that the attack was directed against the government established by law. The approach to the question whether any action brings into hatred or contempt or excites disaffection towards the government should be in the following way. First, the true meaning of the words, the innuendo they convey and the covert meaning, if any, they have, have to be gathered. Secondly, their probable or natural effect has to be seen. In other words, whether they are calculated to produce the result, ie hatred, contempt or disaffection towards the Government. Thirdly, if they do, the intention of the author of the words to produce that result has to be ascertained. As the supreme Court has observed in Kader Math's case (AIR. 1962 SC. 955) the provisions of S. 124a should be limited in its application to acts involving an intention or tendency to create disorder or disturbance of law and order or incitement to violence. The ventilation of grievances against officers by means of articles, pamphlets or by demonstrations would not fall within the mischief of S. 505 (c ). Shouting slogans for a classless society or against the privileged or for establishment of socialism will not come within the mischief of the provision. I therefore quash the proceedings in Crime No. 55/81 of the Mannantody Police Station pending before the Judicial Magistrate of the first Class, Mannantody. . .;


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