Dua, J. - (1.) This appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court of Delhi dated February 24, 1972 rejecting the appellant's revision petition under Ss. 439 and 561-A of the Code of Criminal Procedure. In that revision he had prayed that the charge framed against him by a Magistrate, First Class, New Delhi on July 3, 1969 under S. 9 of the Punjab Security of State Act (Punjab Act No. 12), 1953 (hereinafter called the Act) be quashed. The special leave petition originally came up for preliminary hearing before a bench of this Court on August 18, 1972 when notice to show cause was issued. On September 19, 1972 the hearing was again adjourned for a week to enable the petitioner's counsel to file a writ petition. It appears that no writ petition was filed but on September 26, 1972 this Court granted special leave on usual terms. The appeal was also directed to be heard on the existing paper book with liberty to the parties to file such additional documents as they wished to file from the record. The appeal was directed to be listed for hearing in the second week of January, 1973. Sometime in January, 1973 the appellant presented criminal miscellaneous petition No. 32 of 1973 seeking permission to urge additional grounds. In that application the constitutional validity of S. 9 of the Act was questioned. The said section, according to the averment in that petition, infringes the fundamental right of speech guaranteed under Art. 19 (1) (a) of the Constitution.
(2.) It is alleged by the prosecution that the appellant had addressed a public meeting of the employees of the Defence Department on October 9, 1968 and in the course of his speech he had incited the said employees to commit offences prejudicial to the security of the State or to the maintenance of public order. The Magistrate had, on perusal of the documents filed under S. 173, Cr. P. C. framed a charge against the appellant punishable under S. 9 of the Act. According to the judgment of the High Court the offending portion of the speech which had been delivered in Hindi reads as follows: " There will be hunger strike at Chavan Sahib's kothi No. 1 Race Course Road. If Chavan Sahib thinks that they will be in position to crush us with the assistance of C.R.P. and B.S.F. then that is his misunderstanding. Chavan Sahib when the Britishers had to leave this country then the same military and police will push you out. Because these children of military and police personnel are also hungry they also require bread for eating. Therefore, the day has to come when after their unit these workers will send you out. Comrades the Government suffered the moral death when it promulgated the ordinance. Because we had no idea of starting any violence, when we demanded bread, clothes and house. This struggle of ours will continue. If Government servants die then other labourers will take this struggle ahead. One thing more I want to tell you that if there will be no celebration of Diwali in the house of our fifty thousand people, then there shall be darkness in the houses of these ministers. I want to tell you Chavan Sahib that if you repression continued in the same way, one Udham Singh will be born amongst the labourers who will not let you live as Udham Singh killed Dyre after going to London." Annexures I and II attached to the petition under Art. 136 of the Constitution stated in para 4 thereof to be the English translation of the statements of the two police officers on the basis of which the charge sheet had been filed in court contained a couple of more sentences which do appear to be of some importance. But we consider it unnecessary for our present purposes to refer to them. The High Court considered the part of the speech reproduced above and after referring to the decisions of this Court in State of Bihar v. Smt. Shailabala Devi, AIR 1952 SC 329, Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 and Sudhir Kumar v. Commr of Police, (1970) 1 SCC 149 , dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence under S. 9 of the Act. It was, however, added that it was open to the petitioner either by cross-examination of the prosecution witnesses or by adducing evidence in defence to show that in the circumstances under which these remarks were made they did not amount to an incitement to an offence prejudicial to the security of the State or the maintenance of public order. The High Court felt that at that stage it could not be said that there was no prima facie case against the petitioner under S. 9 of the Act.
(3.) In this Court Shri S. C. Agarwal questioned the vires of S. 9 of the Act, contending that this section is violative of the fundamental right guaranteed by Art. 19 (1) (a) of the Constitution. No doubt, this point was not raised in the High Court and in this Court also it was specifically sought to be raised only in the subsequent applications presented in January, 1973 but as the speech in question was itself sought in para 5 of the petition for special leave to be protected by Art. 19 (1) (a) and as it was a pure question of law raising the constitutionality of S. 9 of the Act we permitted the counsel to raise it.;