NARAYANAN NAIR Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.) THE accused, a Pointsman attached to the Elathur railway Station, was charged with the offence under R. 41 (1) (a), (c) and (d)read with R. 41 (5) of the Defence of India Rules, 1962, hereinafter called the Rules. THE charge was that on 20th September 1965 at about 6 p. m the accused committed a prejudicial act by uttering the following words in a provision store in Elathur: and that the utterance was made with the intention to cause alarm and fear in the minds of the public, and to create feelings of enmity and hatred between different classes of persons in India , and to excite disaffection towards the Government established by law. At that time when the accused said these words P. Ws. 1, 2 and others were engaged in reading 'mathrubhoomi'. THE Magistrate found that the accused has committed a prejudicial act, and convicted him under R. 41 (1) (a)punishable under R. 41 (5) of the Rules, and sentenced him to undergo R. I. for three months. THE accused filed an appeal. THE appellate court dismissed the appeal.
(2.) IN this revision petition counsel for the petitioner raised two points before me. He argued that the utterance in question was not a prejudicial act within meaning of R. 35 (6) (e) or (h ). Rule (35) (6) (e) and (h) are as follows: "35 (6). ' Prejudicial act' means any act which is intended or is likely (e) to bring into hatred or contempt, or to excite disaffection towards the Government established by law in INdia; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (h) to cause fear or alarm to the public or to any section of the public;". As to the question whether the utterance was intended to cause fear or alarm to the public or any section of the public, the finding of the appellate court is that no fear or alarm was actually caused to the four or five persons who were then in the store. On looking at the utterance and the context in which it was made, and the number of persons who heard it, I am not inclined to think that the accused intended to cause alarm to the public or to a section of the public or that the utterance was likely to cause fear or alarm to the public or to any section thereof. The appellate court considered the utterance a prejudicial act only for the reason that it was likely to cause alarm and fear in the public and to excite hatred and contempt towards the Government. The witnesses said that they feared that Elathur would be bombed just as Ambala Military Hospital was bombed. The fact of bombing of the Military Hospital at Ambala appeared in all the newspapers, I do not think that the statement that more persons died in the bombing of Ambala Military Hospital than were made known to public, was likely in the context to cause any fear to the persons who listened to the utterance. The finding that no fear was caused to the persons listening to the utterance may be indicative that no fear or alarm was likely to be caused. If reasonable men on hearing the utterance would not be put to any fear or alarm by it one cannot say that the utterance was likely to cause fear or alarm to the public or any section thereof. The question to be asked and answered is whether the ordinary common man of the common law would be likely to be put to fear or alarm by the utterance. I do not think that the utterance had any such tendency.
Then the other question for consideration is whether the utterance was intended or likely to bring into contempt or ridicule or to excite disaffection towards the Government established by law. The working of clause (e) of R. 35 (6) is practically the same as that of S. 124-A of the Indian penal Code. S. 124-A deals with the offence of sedition. Whether an utterance is a prejudicial act on account of its tendency to bring into hatred or contempt or to excite disaffection towards the Government established by law was considered by the federal Court in Niharendu v. Emperor AIR. 1942 F. C. 22. In that case the Court observed: "the first and most fundamental duty of every government is the preservation of order since order is the condition precedent to all civilization 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 Governments, but because where Government and the law ceased 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 disorder, or must be such as to satisfy reasonable men that that is their intention or tendency. " (See also the decision in AIR. 1960 SC. 955 approving the view) In Naba Krishna v. Emperor AIR. 1943 Patna 418 it is observed that public disorder, or the reasonable anticipation, or likelihood of public disorder, is the gist of the offence of sedition, and that the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency. In other words, the question to be asked is: was the language used calculated, or was it not, to promote public disorder or physical force or violence, in a matter of state. Mr. Justice Coleridge said in his summing up to the jury in The King v. Aldred 22 Cox. C. C. 1 (1909): "in arriving at a decision of this test you are entitled to look at all the circumstances surrounding the publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which Would be innocuous, practically speaking, if used to an assembly of professors or divines, might produce a different result if used before an excited audience of young and uneducated men. You are entitled also to take into account the state of public feeling. Of course there are times when a spark will explode a powder magazine; the effect of language may be very different at one time from what it would be at another. You are entitled also to take into account the place and the mode of publication. All these matters are surrounding circumstances which a jury may take into account in solving the test which is for them, whether the language used is calculated to produce the disorders or crimes or violence imputed". Judging by this standard I do not think that the utterance in question was likely to bring into hatred or contempt or to excite disaffection towards the Government. The occasion on which the utterance was made and the number of persons to whom it was addressed, would indicate that there was no reason for the apprehensions that the utterance was likely to bring into hatred or contempt or to excite disaffection towards the Government. I therefore set aside the orders of the court below and acquit the accused. The accused is set at liberty. I allow the revision petition. Allowed.;
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