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Section 124A in The Indian Penal Code
The Police (Incitement to Disaffection) Act, 1922
Section 482 in The Indian Penal Code
Section 3 in The Police (Incitement to Disaffection) Act, 1922
The Indian Penal Code

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Gujarat High Court
Bharat vs State on 18 April, 2012
Bench: Harsha Devani
  
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 

CR.MA/7536/2008	 55/ 55	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
MISC.APPLICATION No.7536 of 2008
 

With


 

CRIMINAL
MISC.APPLICATION No.7537 of 2008
 

With


 

CRIMINAL
MISC.APPLICATION No.7538 of 2008
 

With


 

CRIMINAL
MISC.APPLICATION No.7539 of 2008
 

With


 

CRIMINAL
MISC.APPLICATION No.7540 of 2008
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MS. JUSTICE HARSHA DEVANI
 
 
=========================================


 
	  
	 
	  
		 
			 

1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment?
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To
			be referred to the Reporter or not?
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment?
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder?
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil judge?
		
	

 

 
=========================================


 

BHARAT
DESAI EDITOR, TIMES OF INDIA & 1 - Applicant(s)
 

Versus
 

STATE
OF GUJARAT & 1 - Respondent(s)
 

========================================= 
Appearance: 
MR
SV RAJU for
Applicant(s): 1 - 2. 
MS KRINA CALLA, ADDITIONAL PUBLIC PROSECUTOR
for Respondent(s): 1, 
MR BB NAIK, SR. ADVOCATE with MR DILIP B
RANA for Respondent(s): 2, 
=========================================
 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MS. JUSTICE HARSHA DEVANI
		
	

 

 
 


 

Date
: 18/04/2012 

 

 
COMMON
ORAL JUDGMENT

1. These applications under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") seek quashing of the first information reports registered vide Navrangpura Police Station I-C.R. No.286/2008, 288/2008, 289/2008, 298/2008 and 299/2008 respectively, for the offences punishable under sections 120-B, 124A and 34 of the Indian Penal Code as well as section 3 of the Police (Incitement to Disaffection) Act, 1922.

2. The facts of the case are that the respondent No.2 - first informant was appointed as Police Commissioner, Ahmedabad city on 20th May, 2008. The Times of India published certain news items in its Ahmedabad edition beginning from 27th May, 2008. The first news item came to be published under the heading "Was Ahmedabad CP a Latif Man? CBI papers cast a shadow on O.P. Mathur's role in Ex-MP Rauf Valiullah's murder in 1992".

3. On 28th May, 2008, the Ahmedabad edition of Times of India carried a news item titled "How can Ahmedabad be safe in his hands? As Head of 'Latif Squad', was Mathur also on don's payroll?". It also carried a news item that before becoming Commissioner of Police, Ahmedabad, the respondent No.2 was serving as D.G.P., CID (Crime) and Jails and the day before he left the charge of jails, the City Crime Branch raided the Sabarmati jail on a tip-off from Central Intelligence Bureau that a terrorist network was planning a major jail-break to allow some hard-core terrorists to escape. The news report also stated that IB intercepts of international calls made out of Ahmedabad had people across the border speaking to each other about a jail-break in Sabarmati. The news item also revealed that three SIM cards and two mobiles were found from the jail and despite jammers installed in high security prison, the record showed that terrorists were making calls freely to Pakistan. It was pointed out that the jail-break plans were scuttled not on account of any alertness on the part of the jail establishment under Mathur but because of timely intercepts by the IB and quick follow up action taken by the Crime Branch headed by Joint Police Commissioner, Ahmedabad Shri Ashish Bhatia who confirmed to Times of India that international calls were made from the phones and SIM cards seized by the police.

4. On 29th May, 2008, the Times of India, Ahmedabad edition published a news item showing that at the instance of the High Court of Gujarat, an offence was registered against respondent No.2 - Shri Mathur for attempt to murder and sexual harassment and issuing threats to a woman lawyer Sarita Sharma and that he brandished a revolver and left it at his lady love's house. The news item had appeared under the title "OPM high A'bad can do without - He brandished revolver, left it at lady love's house". Another news item was titled "Geetha showed who is boss" and refers to DCP Geetha Johri promptly acting upon a tip-off that Latif and his gang had been spotted at Mahad Ka Mohalla and while Latif escaped two of his men were arrested by Geetha and her men and that by the time Mathur dragged his feet to reach Mahad Ka Mohalla, things had quietened down. Geetha was already on her way to Shahibaug with her two prize catches. The said edition also contained a column bearing the heading "Do you want O P Mathur to continue as commissioner of police, Ahmedabad? and invited opinions of the readers.

5. On 30th May, 2008, the Times of India contained a news item bearing the heading "Crooked path to the crown" "OP Mathur Got the Position of Commissioner of Police, Ahmedabad, as Reward For Botching Up The Probe Into The Fake Encounter of Sohrabuddin, A Close Associate of Mafia Don Latif". It was reported therein that an important CD which contains the details of telephone calls made by police officers, businessmen and politicians which indicated a possible nexus behind the elimination of Sohrabuddin in order to save some Rajasthan based businessmen from his extortion threats was found missing after it was handed over to Mathur by Rajnish Rai. The news item also indicated that if the CD was still a part of Sohrabuddin case papers then probably a top Gujarat minister and a high ranking BJP politician of Rajasthan would be running for cover and this political duo reciprocated last week by making Mathur the Commissioner of Police. This edition also invited viewers' opinion as in the preceding edition.

6. On 31st May, 2008, the Ahmedabad edition of Times of India carried a news item under the heading "Latif an ISI man and Mathur a Latif man? - Five million Amdavadis can't be safe under new police chief with dubious links". It also carried a news item that one Jatin Desai, who had a scuffle with Shri Mathur for which the High Court of Gujarat had directed registration of first information report against Shri Mathur refused to meet Mathur for revolver licence and requested that he should be allowed to represent his case before a higher authority. The newspaper also carried news item pointing out that in response to the news items carried by Times of India, 98% of the readers did not want Mathur to continue as Commissioner of Police, Ahmedabad.

7. On 1st June, 2008, the Ahmedabd edition of Times of India carried three news items regarding the underworld late Abdul Wahab Latif and his close associates Sharif Khan and Rauf Valiullah, Ex-M.P.

8. In the aforesaid background, the respondent No.2 - Shri Mathur lodged the above referred first information reports.

9. Pursuant to the lodging of the above referred first information reports, the applicants filed Criminal Miscellaneous Application No.6960/2008. However, the said case was not argued on merits and came to be withdrawn with liberty to file a fresh application for quashing including the grounds raised in the said application, since the applicants wanted to make representation before the State Government. Subsequently, after withdrawal of the said application, the applicants moved a representation to the State Government vide letter dated 6th June, 2008. According to the applicants, the representation has not been decided despite the fact that almost ten days had passed and that the investigating agency despite the pendency of the representation had started summoning large number of persons from the Times of India. According to the applicants, the entire purpose seems to be to ensure that the representation before the State Government becomes infructuous. Under the circumstances, the applicants have moved the present applications for quashing the above referred first information reports.

10. Mr.

S.V. Raju, Senior Advocate appearing on behalf of the applicants in each of the applications, invited attention to the relevant news items in respect of which the offences in question are alleged to have been committed to submit that none of the news items even remotely indicate, leave alone, cause hatred against the Government. Referring to the allegations made in the first information report it was submitted that it appears that the respondent No.2 is annoyed that the news items have appeared against him and except for using the words that the new items have been published only with a view to cause contempt and hatred against Senior Police Officers and the State Government, nothing has been stated which would constitute an offence punishable under section 124A IPC.

10.1 Attention was invited to the provisions of Chapter VI of the Indian Penal Code which relates to offences against the State to submit that section 124A is categorised as an offence against the State. It was submitted that though essentially all offences are against the State, offences falling under Chapter VI of the Indian Penal Code are of a nature which require the first information report to be lodged only by the State inasmuch as it is an offence specifically committed against the State in particular. It was, accordingly, argued that an offence under section 124A is an offence against the State, however, the State is not an aggrieved party and the State has not thought it fit to lodge any complaint in respect thereof. It was contended that the second respondent has no locus standi to file a first information report for sedition as the same being an offence against the State; it is only the State which can file a first information report in respect of the said offence.

10.2 It was further submitted that section 196 of the Code of Criminal Procedure prohibits a court from taking cognizance of an offence punishable under Chapter VI of the Indian Penal Code except with the previous sanction of the Central Government or of the State Government. In the facts of the present case, no sanction has been obtained by the respondent for lodging the first information report for an offence under section 124A of the Indian Penal Code. It was pointed out that though the respondent had made an application seeking sanction from the State Government, the State Government had granted sanction only in respect of section 499 I.P.C. i.e. for the offence of defamation however, no sanction has been granted in respect of the offence of sedition falling under section 124A of the Indian Penal Code.

10.3 The learned counsel took the court through the relevant news items to submit that there is nothing in the said articles which would fall within the ambit of section 124A of the Indian Penal Code and that the first information report on the face of it does not constitute any offence, much less an offence under sections 120B, 124A and 34 of the Indian Penal Code and section 3 of the Police (Incitement to Disaffection) Act, 1922. It was submitted that even if the averments made therein are accepted, they do not have the intention or tendency to create disorder or disturbance of law and order or to incite violence and that none of the news items even remotely indicate, leave alone, cause hatred against the State Government. It was submitted that under the circumstances, the provisions of section 124A would not, in any manner, be attracted in the facts of the present case.

10.4 Inviting attention to the provisions of section 124A of the Indian Penal Code, it was submitted that for an offence to fall within the ambit of the said provision, the same should bring or attempt to bring into hatred or contempt, or incite or attempt to incite disaffection towards the Government established by law in India. Referring to the decision of the Supreme Court in the case of Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, it was pointed out that the deletion of the word 'sedition' while finally passing Article 19(2) from the draft Article 13(2) shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State.

10.5 It was submitted that the main offence alleged in the first information reports is the offence punishable under section 124A of the Indian Penal Code which has been subject matter of interpretation by a number of decisions of the Supreme Court as well as by a Full Bench of this court in the case of Manubhai Tribhovandas Patel v. State of Gujarat and Anr., 1971 (12) GLR 968, wherein the Full Bench relying upon the decision of the Supreme Court in the case of Kedar Nath Singh v. State of Bihar (supra) has categorically held that it is well settled that the words, deeds or writings constitute sedition punishable under section 124A only if they incite violence or disturb law and order or create public disorder or have the intention or tendency to do so. It was pointed out that in Kedar Nath's case the Supreme Court agreed with the Federal Court's view in Niharendu Dutt Majumdar's case and disagreed with the interpretation of the Privy Council and held that only the activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace would come within the purview of section 124A I.P.C. Reliance was also placed upon the decision of the Supreme Court in the case of Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431, wherein the Supreme Court after referring to its earlier decision in the case of Kedar Nath Singh (supra) held that the crucial allegations required for establishment of section 124A I.P.C. are that the acts must have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it and further held that feelings of disloyalty to 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. It was submitted that in the facts of the present case, the first information reports do not even remotely suggest that the news items create any disloyalty to the Government or enmity to the Government. That on the contrary, the entire purpose of the news items is in public interest to highlight the fact that people occupying high public places should be free from blemish and should not have tainted records showing links with underworld or involvement with criminal cases. Reliance was also placed upon the decision of the Supreme Court in the case of Balwant Singh and Another v. State of Punjab, (1995) 3 SCC 214 for the proposition that section 124A I.P.C. would be attracted only when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible signs or representations etc. 10.6 Referring to Explanation 2 below section 124A IPC it was submitted that the news items published in the Times of India amount to comments expressing disapprobation of the measures of the Government in appointing the second respondent as the Commissioner of Police without exciting or attempting to excite hatred, contempt or disaffection and, therefore, would be covered within the second Explanation to section 124A I.P.C. It was urged that the news items clearly show that they are comments expressing disapprobation of the administrative action of the Government in appointing the second respondent as the Commissioner of Police and the same have been made without exciting or attempting to excite hatred, contempt or disaffection and, therefore, would not constitute an offence punishable under section 124A I.P.C. in view of Explanation 3 to the said section.

10.7 Insofar as the applicability of the provisions of section 3 of the Police (Incitement to Disaffection) Act, 1922 is concerned, it was submitted that no offence is made out as there is no intention, attempt or any act to induce, to cause disaffection towards the Government established by law in India amongst the members of the police force to withhold his service or to commit a breach of discipline.

10.8 The next contention advanced by the learned counsel for the applicants was that mere use of the language of the section is not sufficient and that the ingredients of the said provision are required to be satisfied. In support of the said submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Vijaya Rao v. State of Rajasthan and Another, (2005) 7 SCC 69 wherein the court had observed that except using the expressions "fraudulent misappropriation" and "malafide intention", the allegations in the complaint did not disclose as to how the appellant therein could be found guilty of the offence under section 420 I.P.C. The court found that the ingredients constituting section 420 were conspicuously lacking in the complaint. It was submitted that the ingredients of the provisions invoked are woefully lacking in the present case and as such, the first information reports deserve to be quashed and set aside.

10.9 Reliance was placed upon the decision of the Supreme Court in the case of S. Rangarajan v. P. Jagjivan Ram and Others, (1989) 2 SCC 574 and more particularly to paragraphs 10, 20, 34 and 36 thereof wherein the Supreme Court has interalia observed that the "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. This, in the opinion of this court, is the correct approach in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law, 'the man on the top of a Clapham omnibus'." In the facts of the said case, the court found that there was no utterance in the film threatening to overthrow the Government by unlawful or unconstitutional means. There was no talk for secession either. Nor was there any suggestion for impairing the integration of the country. All that the film seemed to suggest was that the existing method of reservation on the basis of caste was bad and reservation on the basis of economic backwardness was better. The court observed that the democratic form of the Government itself demands from 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 the 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. It was submitted that in the facts of the present case, the averments made in the newspapers have to be viewed in the light of the propositions enunciated by the Supreme Court namely, that the words must be judged from the standards of reasonable, strong-minded, firm and courageous men and not those of weak and vacillating minds. Attention was invited to paragraph 52 of the said decision wherein the court had observed that two Revising Committees had approved the film. The members thereof had come from different walks of life with variegated experiences and represented the cross-section of the community. It was submitted that in the facts of the present case also, the Press Council of India has approved of the articles and has addressed a letter dated 4th June, 2008 to the Chief Minister stating that the reports have been examined with reference to the norms drawn up by the Council prescribing the parameters of the right of the press to comment on the acts and conduct of the public and that the action proposed against the applicants was prima facie unadvisable.

10.10 Reliance was placed upon the decision of the Supreme Court in the case of Manzar Sayeed Khan v. State of Maharashtra and Another, (2007) 5 SCC 1 wherein the Supreme Court in the context of section 153A I.P.C which relates to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony had referred to the decision of the Nagpur High Court in the case of Bhagwati Charan Shukla v. Provincial Government, AIR 1947 Nagpur 1 wherein the court had observed "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'." It was submitted that thus even in respect of offences under the Indian Penal Code, the same standards for the manner in which an article or a book is to be read would be applicable.

10.11 Reliance was placed upon the decision of the Supreme Court in the case of R. Rajagopal alias R.R. Gopal and Another v. State of Tamil Nadu and others, (1994) 6 SCC 632 wherein the Supreme Court had laid down certain broad principles as regards right of privacy vis-à-vis freedom of press. The court, inter alia, held that in case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. The Supreme Court also held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child- bearing and education among other matters. None can publish anything concerning the above matters without his consent

- whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises controversy. Adverting to the facts of the present case, it was submitted that the articles in question relate to the acts of the second respondent in a conduct relevant to the discharge of his official duties and that the statements contained in the articles are after a reasonable verification of the facts. Under the circumstances, the provisions of section 124A would clearly not be attracted. It was submitted that the second respondent is very well aware that in the light of this position, no case for defamation under section 499 I.P.C. has been made out, and hence, with a malafide intention, the provisions of section 124A I.P.C. have been invoked.

10.12 Next, it was submitted that the mode and manner in which the complaints have been filed shows the misuse of official position by the second respondent in seeing that the first information reports are registered. It was submitted that the first information reports have been filed malafide and with ulterior motives by misusing the official position of the second respondent in literally forcing his subordinate officer to register the offence by taking away the discretion vested in the Police Inspector, Navrangpura to refuse to register the first information reports. It was submitted that when the higher officer directs the subordinate to register the first information report, the Police Inspector has no choice but to register the same. The registration of the first information reports, therefore, is an abuse of the power of the respondent No.2, inasmuch as, in his capacity as Police Commissioner he had got the first information reports registered by a subordinate who was under his influence. Inviting attention to the date and time of the first information reports in question, it was pointed out that each of the first information reports has been registered in the early hours of morning when ordinarily officers would be reluctant to register the complaint.

10.13 Inviting attention to the affidavit-in-reply filed by the respondent, it was pointed out that it is the case of the respondent that the act, action and conduct of the applicants in publishing the articles continuously for five days clearly reveals that the same is intended to create disorder and/or disturbance of public peace and, therefore, ingredients of offence punishable under section 124A are satisfied. It was submitted that in this case, five first information reports have been registered whereas it is the case of the second respondent that the articles which have been published sequentially are part of a larger conspiracy. It was submitted that if all the articles form part of the very same conspiracy, separate offences cannot be registered in respect of each first information report and as such, the first information reports are required to be quashed even on this ground.

10.14 In conclusion, it was submitted that the first information reports are vexatious and frivolous and filed with a malafide intention of harassing the applicants for having published the articles in question. It was submitted that the present cases directly fall within the categories enumerated in the decision of the Supreme Court in the case of State of Haryana v. Bhajanlal, AIR 1992 SC 604 and as such, the first information reports in question deserve to be quashed and set aside.

11. Mr.

B.B. Naik, Senior Advocate appearing for the second respondent submitted that on the allegations made in the first information reports the offences alleged are clearly spelt out, hence no case is made out for intervention in exercise of powers under section 482 of the Code. The attention of the court was drawn to the article published in the Times of India edition published on 27th May, 2008 to submit that on a perusal of the first paragraph itself, it is evident that the allegations made therein are directly against the Government with a view to incite the people that the Government is completely oblivious to the security of the citizens of Ahmedabad. It was submitted that whatever is stated in the article against the second respondent is to substantiate the allegation against the Government and is likely to incite hatred against the Government and feeling of insecurity on the part of the citizens, thereby giving rise to a law and order problem. It was contended that the contention advanced on behalf of the applicants that the allegations made in the news items are against the second respondent and not against the Government, is not correct. It was submitted that the allegations have been made against the second respondent to substantiate the main allegation that the action of the Government is not proper. The offence is further compounded by the fact that continuously in a series of five articles such serious allegations which would amount to inciting the public and creating contempt and hatred and disaffection in the minds of the public against the Government have been published. It was submitted that a bare perusal of the articles in question would clearly indicate that the attack is directly on the Government.

11.1 It was submitted that the question which arises in the facts of the present cases is as regards the interpretation of section 124A I.P.C. by the Supreme Court. It was submitted that even if the provisions of section 124A are read down as held by the Supreme Court in the decisions on which reliance had been placed by the applicants, the ingredients of section 124A are still made out. It was further submitted that an attempt to commit an offence under section 124A is also an offence and that in the facts of the present case, there is a clear attempt on the part of the applicants to create hatred, contempt and disaffection towards the Government which would result in a breach of public order. Therefore, it cannot be said that the first information reports do not make a prima facie case of commission of an offence under section 124A I.P.C. It was argued that a first information report need not be an encyclopedia of all facts and that on a plain reading of the first information reports in question, the same clearly make out that this is an attack on the Government with the intention to create contempt, hatred and disaffection in the minds of the public. It was submitted that a conjoint reading of the allegations made in the first information reports with the contents of the newspaper are sufficient to make out prima facie offence under section 124A I.P.C.

11.2 As regards the provisions of section 3 of the Police (Incitement to Disaffection) Act, 1922, it was submitted that if serious allegations are made against senior officers of the police force, it would induce the subordinate officers not to obey their orders. It was urged that the contents of the articles in question would create in the minds of the members of the police force disaffection against the Government who appoints such an officer. Under the circumstances, the provisions of section 3 of the said Act are clearly attracted.

11.3 Dealing with the contention that in an offence relating to section 124A I.P.C., it is the State which ought to be the complainant, the attention of the court was invited to the provisions of section 39 of the Code to submit that every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under the sections enumerated thereunder is bound to forthwith give information to the nearest Magistrate or Police Officer of such commission or intention. It was submitted that section 124A is one of the offences enumerated under section 39 of the Code and hence, any citizen who is aware of the commission of such an offence can lodge a first information report in respect thereof. It was submitted that merely because the second respondent is a Commissioner of Police, he does not cease to be a citizen hence, under the provisions of section 39 of the Code, he is bound to inform the commission of an offence when it comes to his notice.

11.4 As regards the contention that necessary sanction for prosecuting the applicants under section 124A I.P.C. has not been obtained by the second respondent, it was submitted that no sanction is necessary for lodging a first information report and that the question of obtaining sanction comes at the stage when after charge-sheet is filed and cognizance of the offence is to be taken, which stage has not yet arrived. .

11.5 Inviting the attention of the court to the fact that the present applications have been filed under section 482 of the Code, it was submitted that registration of a first information report not being a proceeding before a court, the same cannot be questioned in an application under section 482 of the Code. In support of the said submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of State of W.B. and others v. Sujit Kumar Rana, (2004) 4 SCC 129 to submit that the basic requirement for exercise of power under section 482 is that the proceedings should be before a court.

11.6 It was emphatically argued that the police investigation has to be allowed to be completed and that the same cannot be interfered with except on the ground that the Investigating Officer is not properly investigating the case. Reliance was placed upon the decision of the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad, AIR 1945 Privy Council 18 for the proposition that while dealing with the statutory right of police under sections 154 and 156 of the Code, the court had observed that it is of utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them a duty of inquiry. In India, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. It was submitted that under the circumstances, the executive powers of the police to investigate offences are not required to be interfered with except in exceptional circumstances. It was submitted that in the facts of the present case, no such exceptional circumstances have been made so as to warrant interference at the stage of investigation.

11.7 Reliance was also placed upon the decision of the Supreme Court in the case of State of Karnataka and Another v. Pastor P. Raju, (2006) 6 SCC 728 for the proposition that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under section 173(2) CrPC, this field being exclusively reserved for the investigating agency. It was submitted that under the circumstances, without there being any investigation worth the name being carried out, the proceedings in question cannot be quashed. Reliance was also placed upon the decision of the Supreme Court in the case of Jehan Singh v.

Delhi Administration, (1974) 4 SCC 522 for the proposition that the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under section 439 or under the inherent power of the Court under section 561A of the Code of Criminal Procedure.

11.8 Reliance was also placed upon the decision of the Supreme Court in the case of State of Orissa and Another v. Saroj Kumar Sahoo, (2005) 13 SCC 540 for the proposition that exercise of power under section 482 CrPC is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the court possessed before the enactment of the CrPC. In the facts of the said case, the court observed that the investigation was not complete and at that stage, it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under section 482, it is not permissible for the court to act as if it was a trial court. The court observed that even when charge is framed, the court has to only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. For that limited purpose, the court can evaluate material and documents on record but it cannot appreciate evidence. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Reliance was also placed upon the decision of the Supreme Court in the case of Union of India v. Prakash P. Hinduja and Another, (2003) 6 SCC 195 for the proposition that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under section 173(2), this field being exclusively reserved for the investigating agency. It was submitted that thus, it is settled legal position that while the investigation is at a nascent stage, the courts would ordinarily refrain from exercising powers under section 482 of the Code for quashing a complaint.

11.9 It was submitted that the question as to whether the offences alleged could be said to be an attempt to create hatred, disaffection or contempt in the minds of public which would lead to public disorder can be established only after proper investigation is carried out in the matter and that in a serious offence like the present one, the investigation should be permitted to be continued. It was urged that the intention to create hatred, disaffection or contempt against the Government in the minds of the public can be deduced only after investigation, otherwise it is not possible to ascertain the effect of the new items. It was submitted that all the decisions on which reliance had been placed by the learned advocate for the applicants in relation to the provisions of section 124A are cases where the trial had already been concluded at the stage of registration of the first information report.

11.10 It was contended that the decision of the Supreme Court in the case of S. Rangarajan v. P.

Jagjivan Ram and Others (supra) would not be applicable in the facts of the present case inasmuch as Article 19(2) of the Constitution of India has not been interpreted in the light of the provisions of section 124A IPC and section 3 of the Police (Incitement to Disaffection) Act, 1922. It was submitted that the decision of the Supreme Court in the case of R.

Rajagopal v. State of T.N. and Others (supra) would also not be applicable to the facts of the present case inasmuch as the issue under section 124A did not arise in the facts of the said case. It was submitted that in the present cases, it is not defamation of respondent No.2 alone which is alleged, the applicants have attacked the Government and have attempted to create an impression in the minds of the readers that they are not safe. A feeling of complete insafety is sought to be created. It was submitted that the article bearing the heading 'Latif an ISI man and Mathur a Latif man' implies that Mathur is an ISI man and directly creates anxiety in the minds of the people of Gujarat. It was, accordingly, urged that the first information reports in question clearly disclose commission of the offences alleged, and at this stage when the investigation is yet to be carried out, there is no warrant for exercise of powers under section 482 of the Code.

12. Ms.

Krina Calla, learned Additional Public Prosecutor, appearing on behalf of the respondent State submitted that the allegations made in the first information reports clearly show commission of the offence alleged. Inviting attention to the allegations made in the first information reports, it was submitted that the allegations made in paragraphs 13 and 16 thereof clearly make out an offence under section 124A IPC, under the circumstances, at this stage, at the threshold, the investigation may not be curtailed and that no case has been made out for intervention by this court.

13. In rejoinder, Mr. S.V. Raju, learned counsel for the applicants submitted that the contention that a first information report cannot be challenged in an application under section 482 of the Code is based on a misconception of the provisions of law. It was submitted that the decision of the Supreme Court in the case of State of W.B. v. Sujit Kumar Rana (supra) on which reliance had been placed by the learned counsel for the second respondent does not lay down any such proposition of law as is sought to be contended. It was submitted that what has been laid down in the said decision is that it is only in matters pertaining to criminal proceedings that powers under section 482 can be exercised. Insofar as reliance placed by the learned counsel for the second respondent on the decision of the Supreme Court in State of Karnataka and Another v. Pastor P. Raju (supra) for the proposition that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under section 173(2) CrPC, this field being exclusively reserved for the investigating agency is concerned, the learned counsel for the applicants placed reliance upon the decision of the Supreme Court in the case of Manzar Sayeed Khan v. State of Maharashtra and another (supra) to submit that the same was a decision of a three-Judge Bench of the Supreme Court wherein the court had held that a first information report can be quashed if it does not disclose an offence and that there is no need for any investigation or recording of any statement. It was submitted that in the first place, the decision in the case of State of Karnataka and Another v. Pastor P. Raju (supra) does not lay down any absolute proposition of law that a first information report cannot be quashed in a proceeding under section 482 of the Code and that in any case the said decision is a decision of a two-Judge Bench of the Supreme Court, hence the law laid down by the three-Judge Bench of the Supreme Court in the case of Manzar Sayeed Khan, would prevail. Under the circumstances, the contention that a first information report cannot be challenged under section 482 of the Code does not merit acceptance. It was further submitted that all the news items in respect of which the first information reports have been lodged are concerned with the lapses committed by the respondent in the discharge of his official duties, and as such, in the light of the decision of the Supreme Court in the case of R. Rajagopal v. State of Tamil Nadu (supra) it was not possible for the second respondent to lodge a complaint alleging commission of the offence of defamation. He has, therefore, malafide invoked a series of offences against the applicants under section 124A I.P.C. It was vehemently argued that creating disaffection against a person cannot be said to be disaffection against the State. According to the learned counsel, the second respondent being a Commissioner of Police should be aware of what constitutes an offence of sedition and under the circumstances, he should have been more circumspect and ought not to have filed the first information reports in question alleging commission of the offence under section 124A of the Indian Penal Code.

13.1 Dealing with the contention that at this stage when the investigation is not complete, it is impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Rukmini Narvekar v. Vijaya Satardekar and Others, (2008) 14 SCC 1, to submit that it is permissible for the court to look at impeachable documents which, in the present cases, are the news items which have been published and which form the basis of the first information reports.

13.2 As regards the contention that an attempt to commit an offence is also an offence, reliance was placed on the decision of the Supreme Court in the case of Koppula Venkata Rao v. State of A.P., (2004) 3 SCC 602 wherein the court had held that an attempt to commit an offence is an act or a series of acts which leads inevitably to the conclusion of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. Referring to the facts of the present case, it was submitted there is nothing to indicate that there was any attempt of sedition and that the same failed on account of circumstances which were neither foreseen nor intended by the applicants.

13.3 It was further contended that section 39 of the Code requires a person who becomes aware of an offence only to give information and does not require him to lodge a first information report. Reliance was placed upon the decision of the Supreme Court in the case of Inder Mohan Goswami and Another v. State of Uttaranchal and Others, (2007) 12 SCC 1, wherein the court had quashed the first information report and further proceedings therefrom to prevent abuse of the process and to secure the ends of justice. Reliance was also placed upon the decision of the Supreme Court in the case of R.

Kalyani v. Janak C. Mehta and Others, (2009) 1 SCC 516, wherein the court has laid down the categories of cases in respect of which the court should exercise inherent jurisdiction to quash criminal proceedings. In conclusion, it was submitted that no offence of sedition as contemplated under section 124A I.P.C. nor any offence under section 3 of Police (Incitement to Disaffection) Act can be stated to have been made out on the allegations made in the first information reports in question and as such, the first information reports being vexatious, frivolous and malafide, deserve to be quashed and set aside by this court.

14. In the backdrop of the facts and contentions noted hereinabove, the first question that arises for consideration is as to whether it is permissible for the applicants to seek quashing of a first information report in an application under section 482 of the Code.

15. On behalf of the second respondent, the learned counsel has placed reliance upon the decision of the Supreme Court in the case of State of West Bengal v. Sujit Kumar Rana (supra) for contending that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court amounts to abuse of the process of court. In this regard, it may be germane to refer to the background in which the above referred decision came to be rendered. In the said case, what was subject matter of challenge under section 482 of the Code was a proceeding for confiscation of forest produce under the provisions of the Indian Forest Act, 1927. The Supreme Court held that the power under section 482 of the Code can be exercised in relation to a matter pending before a court, which in the context of the Code of Criminal Procedure would mean "a criminal court" or whence a power is exercised by the court under the Code of Criminal Procedure. Once it is held that the criminal court had no power to deal with the property seized under the Forest Act, the question of the High Court exercising its jurisdiction under section 482 of the Code would not arise. Thus, in effect and substance, what is held in the said decision is that section 482 of the Code can be invoked in relation to proceedings under the Code of Criminal Procedure and not in respect of proceedings which are not related to criminal matters. The said decision is not a decision for the proposition that powers under section 482 of the Code can be exercised only in a matter pending before a court. Thus, reliance placed upon the said decision appears to be misconceived. Moreover, it is settled legal position as held by the Apex Court right from the year 1990 in the case of State of Haryana v. Bhajan Lal and others (supra) wherein it has been held that where the allegations made in the first information report or the complaint even if they are taken at face value do not prima facie constitute any offence or make out a case against the accused, the High Court can in exercise of extraordinary powers under Article 226 of the Constitution or inherent powers under section 482 of the Code, intervene and quash the same. Subsequently, in a series of decisions, the Supreme Court has followed its earlier decision in the case of State of Haryana and Bhajan Lal (supra). In the case of Manzar Sayeed Khan v. State of Maharashtra (supra) which is a decision rendered in April, 2007, a three-Judge bench of the Supreme Court has followed its earlier decision in the case of Bhajan Lal (supra) and has held that a first information report can be quashed if it does not disclose an offence and there is no need for any investigation or recording of any statement. Thus, the contention that powers under section 482 of the Code cannot be exercised to quash a first information report, being contrary to the settled legal position, does not merit acceptance.

16. The next question that arises for consideration is as to whether it is impermissible for the court to quash a first information report unless the investigation is concluded. In support of the said contention the learned counsel for the respondent has placed reliance upon the decision of the Supreme Court in the case of State of Karnataka v. Pastor P. Raju (supra) for the proposition that the court would not interfere with the investigation or during the course of investigation which would mean from the time of lodging of the first information report till the submission of the report by the officer in charge of the police station in court under section 173(2) CrPC, this field being exclusively reserved for the investigating agency. In this regard it may be noted that in the said case, the High Court had quashed the proceedings at the stage prior to the stage of cognizance by the learned Magistrate on the ground that previous sanction of the Central Government or of the State Government or the District Magistrate had not been obtained. The court observed that on the view taken by the High Court, no person accused of an offence, which is of the nature which requires previous sanction of a specified authority before taking of cognizance by the court, can ever be arrested nor can such an offence be investigated by the police. The specified authority empowered to grant sanction does so after applying its mind to the material collected during the course of investigation. There is no occasion for grant of sanction soon after the FIR is lodged nor such a power can be exercised before completion of investigation and collection of evidence. The court held that, therefore, the whole premise on the basis of which the proceedings had been quashed by the High Court was wholly erroneous in law and liable to be set aside. Thus, it is apparent that in the facts of the said case, the High Court had not set aside the proceedings on the ground that the first information report did not disclose commission of a cognizable offence but had quashed the first information report on the ground that previous sanction of the Central Government or the State Government had not been obtained. It is in the aforesaid backdrop, that the Supreme Court had held that the court should not interfere with the investigation or during the investigation, this field being exclusively reserved for the investigating agency. The said decision does not lay down any absolute proposition of law that at the stage of lodging of a first information report, during the pendency of the investigation, in no case, a first information report can be quashed. Under the circumstances, the contention that at the stage when the investigation is yet to be carried out, the first information report cannot be quashed does not merit acceptance. As to whether or not the first information report should be quashed prior to investigation would depend upon the facts and circumstances of each case.

17. The next question that arises for consideration is as to whether on the allegations made in the first information report, the offence as alleged can be stated to have been made out. It would, therefore, be necessary to briefly advert to the contents of the first information reports in question. A perusal of the first information report registered vide Navrangpura Police Station I-C.R. No.286/2008 shows that the main allegations as regards commission of the offence alleged are to be found in paragraphs 3, 6, 12, 13, 14 and 15 of the said first information report. The case of the first informant is that the applicants had made preparation to execute criminal conspiracy digging out old settled matter and making unsubstantial and uncorroborated allegations and inferences against the first informant and that a criminal conspiracy was hatched to defame him as Police Commissioner of Ahmedabad city, a law enforcing arm of the State Government with the intention to cause and spread hatred against the Police Commissioner and State Government by the owner of Times of India, editor, correspondent, press photographer and concerned member of TNN. It is further alleged that a statement made before about fourteen years by a known criminal and accused was made the basis for causing hatred against the State Government for posting the first informant as Police Commissioner, doubting whether his career is seen by the State Government. It is further alleged that the statement of the accused has been made a basis to attempt to cause hatred against most of the police force of Ahmedabad city on the payroll of Latif (although the claim has not been substantiated or corroborated by any independent evidence in material particulars) to facilitate his criminal activities. Deliberately the date of the statement is not mentioned as it was recorded fourteen years ago. It is also alleged that a concerted and organized tirade had been unleashed by Times of India against the first informant, the Gujarat police and the State Government of Gujarat by making various imputations against him, other senior officers and the State Government established by law with intention to cause hatred, contempt and disaffection. Attempts towards disaffection have been made by publishing unsubstantiated, uncorroborated, biased, malafide news items without referring to the true facts. That in paragraph (1) of the news item, an imaginary imputation is made against the State Government of Gujarat established by law with regard to the posting of the first informant in the Ahmedabad city as Police Commissioner, implying that the State Government has not seen his career records to cause anxiety, alarms and made attempt for hatred in the minds of five million residents of Ahmedabad city against the State Government. It is further alleged that in paragraph (2) of the news item, an imputation has been made that a statement taken by CBI does rake up some muck on Mathur then serving as Police Commissioner, Ahmedabad city. It is alleged that the imputation is based on exculpatory statement of an accused who is involved in many serious offences which is an uncorroborated, unsubstantiated allegation and has been published with an intention to attempt to show that State Government has not applied its mind to create hatred amongst the citizens. It is further alleged that in paragraph (4) of the news item, imputation is made against most of the police officers of Ahmedabad city being on payroll of Latif to facilitate his extensive activities in areas such as bootlegging, contract killing, extortion, kidnapping and land grabbing apart from recklessly murdering people who came his way to undermine faith of public of Ahmedabad city and elsewhere in the law and machinery of the State Government established by law and thereby have made an attempt to cause contempt and hatred. It is further alleged that in paragraphs (5), (6) and (7) of the news item, imputation is made against him as well as other senior officers and higher ups in the Government headed by the Chief Minister which is also unsubstantiated and uncorroborated, published with intention to cause hatred against other senior police officers of the State Government established by law. That the allegation of patronage given to organized crime by politicians and police is also unsubstantiated, uncorroborated and is published only with a view to cause contempt and hatred. The publication of the news item at this time coupled with the tirade against him after being posted as Commissioner of Police, Ahmedabad city has been made to attempt to undermine the lawful authority of police force of Ahmedabad city, a part of the State Government established by law.

These, in effect and substance, are the allegations made in the first information report for the purpose of invoking the provisions of section 120-B, 124A and 34 of the Indian Penal Code.

18. It is settled legal position that while considering an application under section 482 of the Code for the purpose of quashing a first information report, unimpeachable documents which are not refuted by the other side can be looked into for the purpose of examining as to whether or not an offence can be stated to be made out on the allegations made in the first information report. In the present case, it is the case of the second respondent himself that on a combined reading of the articles/news items and the first information reports in question, the offence as alleged is clearly made out. Under the circumstances, it is permissible for this court to look into the news items in question in the context of which the first information reports have been lodged. A perusal of the news items which have been published in various editions of the Times of India from 27th May, 2008 to 1st June, 2008 show that on the basis of statements recorded by the CBI in respect of earlier investigation in connection with the murder of Congress leader and Ex-M.P. Rauf Valiullah, the articles in question have been published questioning the wisdom of the State Government in appointing the second respondent as the Police Commissioner, given his background as narrated in the said articles. A close reading of the said articles reveals that what is stated therein is based upon statements recorded by the CBI, viz., official records. The said records are related to the official functions of the second respondent.

19. A perusal of the article dated 28th May, 2008 in respect of which the second first information report has been lodged shows that the same is based upon the allegations contained in CBI documents presented before the courts at the relevant time. It is stated in the said article that these allegations were never probed by successive regimes and now that the facts have faded out of collective memory, the Government of the day does not bother checking the dark pasts of officers before rewarding them with plum postings. The second article contained therein relates to jail break plans which had been made at the time when the second respondent was serving as DGP, CID (Crime) and Jails. In the entire first information report, there is absolutely no allegation made against the State Government and the same only states that jail break plans were scuttled not because of any alertness on the part of the jail establishment under the second respondent, but because of timely intercepts by the I.B. and quick follow-up action by the Crime Branch.

20. The next article published in the Times of India edition of 29th May, 2008 contains two articles one stating facts to the effect that the second respondent had gone to the house of one Sarita Sharma and that during the course of an argument, he had brandished his service revolver. The said article, can in no manner, be said to be an article which would create hatred or contempt or disaffection towards the State Government inasmuch as the same does not even mention any act of the State Government. The second article is in respect of an incident that had taken place earlier. It is stated in the said article that DCP Geetha Johri, an officer junior to the second respondent, promptly acted upon a tip-off that Latif and his gang had been spotted at Mahad Ka Mohalla. However, while Latif escaped two of his men were arrested by Geetha and her men and that by the time Mathur dragged his feet to reach Mahad Ka Mohalla, things had quietened down Geetha was already on her way to Shahibaug with her two prize catches. On a plain reading of the said article it is amply clear that the same does not impute anything to the State so as to fall within the ambit of section 124A. In the said edition, opinions have also been called for from the readers as to whether they want O.P. Mathur to continue as Ahmedabad's Commissioner of Police.

21. In the article published on 30th May, 2008, various events right from 1992 to May, 2008 till the time the second respondent was made the Commissioner of Police had been detailed. In the said article, it has been alleged that the earlier investigating officer Rajnish Rai had handed over the case papers to Mathur which included a CD containing telephone records of police officers, businessmen and politicians which indicated towards a possible nexus behind the elimination of Sohrabuddin in order to save some Rajasthan-based businessmen from his extortion threats. When Mathur forwarded the case papers to Geetha, with instructions in writing that she should inform him about every move in the case, Geetha found the CD of telephone records missing. Without the CD to establish the political nexus, it is only police officers who find themselves behind bars in the fake encounter of Sohrabuddin and the killing of Kauserbi. The missing CD has also given confidence to the Gujarat Government to admit in an affidavit before the Supreme Court that Sohrabuddin encounter was fake, and his wife Kauserbi was also killed by the same bunch of police officers. If the CD was still part of the Sohrabuddin case papers, a top Gujarat Minister and a high- ranking BJP politician of Rajasthan would be running for cover. This political duo reciprocated last week by making Mathur the Commissioner of Police, Ahmedabad. Thus, this article contains an imputation against the political duo, which is alleged to have reciprocated by making the second respondent a Commissioner in connection with the CD which was found to be missing.

22. In the article published on 31st May, 2008 which bears the heading "Latif an ISI man and Mathur a Latif man? Five Million Amdavadis can't be safe under new police chief with dubious links", the background of the second respondent has been stated and it has been further alleged that on the one hand, the security cover of Chief Minister Narendra Modi has been upgraded to "PM level" on the other, there is virtually no insulation from terror strikes for five million Amdavadis. The rickety security machinery of Gujarat's largest city now has a Head who cannot be trusted with handling either the underworld or terror networks. It is further stated that considering that fighting terror has always been very high on the Chief Minister's agenda but his credentials as a leader determined to fight terror and make Gujarat a safe and secure place do get dented with a cop of Mathur's rather dubious credentials occupying such a critical position in the security apparatus. In the said edition, the response of the readers of the Times of India on the opinions called for in the earlier edition have also been published which reveal that 98% of the readers wanted the second respondent out.

23. What is now required to be examined is as to whether what is stated in the articles and reproduced hereinabove would amount to an offence of sedition under section 124A I.P.C. (in respect of all the first information reports) or would amount to an offence under section 3 of the Police (Incitement to Disaffection) Act (in relation to the last two first information reports lodged by the second respondent).

24. Before adverting to the merits of the case, it may be germane to refer to the law laid down by the Supreme Court in this regard. In Romesh Thappar v. State of Madras, AIR 1950 SC 124, the Supreme Court has held thus:

"9. It is also worthy of note that the word "sedition" which occurred in Article 13(2) of the Draft constitution prepared by the Drafting Committee was deleted before the article was finally passed as Article 19(2). In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. King- Emperor8 held that "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", but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Tilak case9 to the effect that "the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small"- King-Emperor v. Sadashiv Narayan Bhalerao10. Deletion of the word "sedition" from the draft Article 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corresponding Irish formula of "undermining the public order or the authority of the State" [Article 40(6)(i) of the Constitution of Eire, (1937)] did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the reaslisation that freedom of speech and of the press 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 the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution", that "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". (Quoted in Near v. Minnesotta11).

10. 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. It follows that Section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional."

Thus, the Supreme Court has held that deletion of the word 'sedition' from draft article 13(2) shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press unless it is such as to undermine the security of or tend to overthrow the State. The Supreme Court in the case of Kedar Nath Singh v. State of Bihar (supra) was called upon to decide the constitutional validity of section 124A IPC. It was contended before the Supreme Court 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 section 124A I.P.C. The court held that such words written or spoken would be outside the scope of the section. It was observed 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 the guarantee of freedom of speech and expression, which is the sine qua non of a democratic form of Government that, Constitution has established. The court held that 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 observed that if it 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 was held that 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. It was further held that the provisions of the sections read as a whole, alongwith the explanations, make it reasonably clear that the sections aimed at rendering penal only such activities as would be intended, or have a tendency to create disorder or disturbance of public peace by resorting to violence. 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.

25. In Manubhai Tribhovandas Patel v. State of Gujarat (supra), a Full Bench of this High Court referred to the various decisions of the Supreme Court on the interpretation of section 124A IPC and held that it must be now taken as well-settled that words, deeds or writings constitute sedition punishable under section 124A only if they incite violence or disturb law and order or create public disorder or have the intention or tendency to do so. It is in the light of this interpretation of section 124A, that the court has to determine whether the objected passages constitute seditious matters punishable under section 124A. In Bilal Ahmed Kaloo v. State of A.P.

(supra), the Supreme Court held that the decisive ingredient for establishing the offence of sedition under section 124A I.P.C. is the doing of certain acts which would bring to the Government established by law in India hatred or contempt. In Balwant Singh v. State of Punjab (supra), the above referred view of the Supreme Court was reiterated.

26. From the principles propounded in the above referred decisions, it is apparent that it is a settled legal position that 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 intention of creating public disorder. The allegations made in the first information reports have to be viewed in the light of the principles enunciated in the above referred decisions of the Supreme Court as well as this High Court.

27. It may be noted that by virtue of the explanations appended to section 124A IPC, the legislature has taken care to specify that strong words used to express disapprobation of the measures of the Government with a view to their improvement or alteration by lawful means would not come within the purview of the said section. Similarly, it has been provided that comments, however strongly worded, expressing disapprobation of the 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 acts of the 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, i.e. to say, without exciting those feelings of enmity and disloyalty which imply incitement to public disorder or the use of violence.

28. The contents of the news items in question are required to be examined in the light of the aforesaid statutory position, to ascertain as to whether they have the tendency to excite feeling of enmity or disloyalty which imply incitement to public disorder or use of violence so as to constitute the offence of sedition as envisaged in section 124A IPC. The material contents of the articles published in the various editions of the Times of India in respect of which the first information reports have been lodged have been referred to hereinabove.

29. Insofar as the first article published on 27th May, 2008 is concerned, various facts disclosed during the course of investigation by the CBI have been referred to therein and it has been commented that one presumes that the Government of Gujarat must have seen the career records of the second respondent well before entrusting him the responsibility of providing security to five million residents of the State's largest city. Thus, what is commented upon is the wisdom of the State Government in appointing a person like the second respondent given his background as reflected from the investigation made by the CBI. The article published in the edition of 28th May, 2008 refers to documents from the CBI's records and statements made by the accused about various officers of the police being recipients of Latif's largesse and states that the second respondent should thank his stars that his name is not clearly identified as a recipient of Latif's largesse despite his jurisdiction completely overlapping the Latif territory. It is further stated therein that the allegations contained in CBI documents presented before the courts were never probed by successive regimes and now that these facts have faded out of collective memory, the Government of the day does not bother checking the dark pasts of officers before rewarding them with plum postings. Thus, what is insinuated in the said article is that the State Government has not checked the background of the second respondent before appointing him as a Police Commissioner of the City of Ahmedabad. The contents of the said articles are based upon CBI records and the only allegation against the State is of not verifying the background of the second respondent before appointing him as the Police Commissioner.

30. Insofar as the second article is concerned, it only relates to various calls made from jail by terrorists during the tenure of the second respondent as the DGP, CID (Crime) and Jails and there is no reference at all to the State Government. The third article published on 29th May, 2008 is in relation to an incident which had taken place when the second respondent had gone to the residence of Sarita Sharma and an altercation had taken place, whereupon he had brandished his revolver. The said article can, in no manner, be said to be an article exciting contempt, hatred and disaffection against the State Government inasmuch as there is not even a reference to any action of the State Government in the said article. The second article in the said edition only refers to an incident where a subordinate officer of the second respondent had arrested members of the Latif gang whereas the second respondent had not taken the initiative to do so. The fourth article published on 30th May, 2008 refers to a CD which had been handed over by the earlier investigating officer to the second respondent and which was subsequently found to be missing. It is alleged in the said article that if the CD was still part of the Sohrabuddin case papers, a top Gujarat minister and a high-ranking BJP official of Rajasthan would be running for cover. The political duo had reciprocated last week by making Mathur the Commissioner of Police, Ahmedabad. Thus, in this manner, the allegation is against the political duo who made the second respondent a Police Commissioner with a view to reward him in respect of the missing CD which would have implicated them in the offence in question. The said article cannot be said to be an article against the State Government inasmuch as no allegation or imputation has been made against the State Government and the only imputation which is made is against a minister and a high-ranking BJP politician from Rajasthan. The fifth article published on 31st May, 2008 says that on the one hand, the security of the Chief Minister has been upgraded to Prime Minister's level, whereas there is virtually no insulation from terror strikes for five miliion Amdavadis and that the security of Gujarat's largest city now has a Head who cannot be trusted with handling either the underworld or terror networks. In the said article, the correspondent has expressed his opinion that in the light of the background of the second respondent, the security of the citizens of the city is in the hands of a person who cannot be trusted. Thus, an apprehension has been voiced as regards the capacity of the second respondent to provide security to the citizens of Ahmedabad. The said article also says that though terror fighting has always been very high on the Chief Minister's agenda, his credentials as a leader determined to fight terror and to make Gujarat a safe and secure place do get dented with a cop of Mathur's dubious credentials occupying such a critical position in the security apparatus. Thus, what is stated is that by the act of appointing the second respondent as Commissioner of Police of Ahmedabad city, the Chief Minister's credentials as a leader determined to fight terror gets dented. On a plain reading of the aforesaid article, it is apparent that nothing has been imputed to the State Government established by law in the entire article, all that is stated is that the security of the city would not be safe in the hands of a person with the credentials of the second respondent and that the image of the Chief Minister gets dented on account of having appointed him. Thus, comments made in the said article are comments as regards the wisdom of the concerned in appointing the second respondent as the Commissioner of Police of the city of Ahmedabad. The Supreme Court in the case of Kedar Nath Singh v. State of Bihar (supra) has held that the expression "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 124A has been characterised, comes under Chapter VI relating to offences against the State. Hence, any acts within the meaning of section 124A 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 the Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strictly worded, expressing disapprobation of the 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 acts of the 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, i.e. to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence. Adverting to the facts of the present case, in the opinion of this court, a plain reading of the articles in respect of which the first information reports have been lodged clearly reveal that the same do not in any manner have the tendency of subverting the Government by violence means, nor do the same have the effect of creating hatred, disaffection or contempt for the Government. The articles merely comment in strong terms upon the measures of the Government namely, appointment of the second respondent as the Police Commissioner considering his background as brought out in the series of articles based upon records of the CBI. It appears that by publishing the said article, the applicants seek to ameliorate the conditions of the people and to secure the cancellation and alteration of the acts of the Government namely, appointment of the second respondent as Police Commissioner, without exciting feelings of enmity or disloyalty in the public at large. Commenting on the wisdom of the Government in making a particular appointment, in the opinion of this court, would not fall within the ambit of section 124A I.P.C. The news items in question would clearly fall within the ambit of the second and third explanations to section 124A IPC. Under the circumstances, the ingredients to constitute an offence under section 124A IPC are clearly missing in the facts of the present cases. As held by the Apex Court in the decisions cited hereinabove, a citizen has a right to say or write whatever he likes about the Government or its measures, by criticism or comment, so long as he does not incite people to violence against the Government established by law or with intention to create public disorder.

31. The Supreme Court in S.

Rangarajan v. P. Jagjivan Ram and Others (supra), has held 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. In Maneka Gandhi v. Union of India , (1978) 1 SCC 248 it was held that democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means government of the people by the people, it means every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise that right of making a choice, free and general discussion of public matters is absolutely essential. In Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305 the Supreme Court held that the courts must be ever vigilant in guarding the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments must be preserved.

32. Judging the contents of the articles in question, from the standards of a reasonable man, the same would not in any manner have the effect of creating hatred, disaffection or contempt for the State Government. As held by the Supreme Court in the above referred decisions, the State Government cannot be identified with an individual, under the circumstances, if the said articles have the effect of creating any disaffection against the second respondent as an individual, the same would not attract the provisions of section 124A of the Act. Moreover, it is really absurd to say that articles in question amount to sedition. If such were the case, then every argument/comment against the manner of functioning of the government might be alleged to lead to hatred of the government, and it might be suggested that such comments brought the government into hatred or contempt.

33. Another aspect of the matter is that pursuant to the application made by the second respondent seeking sanction to prosecute the applicants, the Government has, in fact, granted permission to prosecute under section 499 I.P.C. However, as rightly contended on behalf of the applicants, since in the light of the decision of the Supreme Court in R.

Rajagopal v. State of Tamil Nadu (supra), in case of public officials, the right to privacy or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made by the defendant with reckless disregard for truth. In the facts of the present case, indubitably the articles in question are in respect of discharge of the official duties of the second respondent. It appears that since it was, therefore, not possible for the second respondent to resort to the provisions of section 499 IPC against the applicants, he has resorted to lodging the first information report under the provisions of section 124A I.P.C. by alleging serious offences against the applicants herein. On the allegations made in the first information reports, the second respondent at best could have lodged a complaint alleging commission of the offence under section 499 IPC, if otherwise permissible in law. However, in no case could the provisions of section 124A IPC have been invoked in the facts and circumstances of the present cases.

34. The second respondent has lodged five first information reports alleging commission of the offence under section 124A IPC. However, in two of the first information reports viz. the first information reports registered vide Navrangpura Police Station I-C.R. No.298/2008 as well as 299/2008, the provisions of section 3 of the Police (Incitement to Disaffection) Act have also been invoked. Section 3 of the Police (Incitement to Disaffection) Act, 1922 reads thus:

3. Penalty for causing disaffection, etc.--

Whoever intentionally causes or attempts to cause, or does any act which he knows is likely to cause, disaffection towards the Government established by law in India amongst the members of a police-force, or induces or attempts to induce, or does any act which he knows is likely to induce, any member of a police-force to withhold his services or to commit a breach of discipline shall be punished with imprisonment which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

Explanation.--

Expressions of disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, or of disapprobation of the administrative or other action of the Government, do not constitute an offence under this section unless they cause or are made for the purpose of causing or are likely to cause disaffection.

Thus, section 3 of the said Act is more or less similarly worded to section 124A of the IPC. The only difference is that whereas section 124A IPC speaks of bringing disaffection, in general, towards the Government established by law, section 3 speaks of causing disaffection towards the Government amongst the members of the police force. Thus, for the purpose of invoking the said section, the contents of the articles should be such so as to cause disaffection amongst the members of the police force towards the Government established by law in India or the same should have the effect of inducing any member of the police force to withhold his service or to commit a breach of discipline. The explanation appended to the said section is more or less in pari materia with the explanation appended to section 124A IPC.

35. From the contents of the news items published in the Times of India on 30th and 31st May, 2008 in the context of which the above referred two first information reports have been lodged, it is apparent that there is nothing therein which would cause disaffection amongst the members of the police officers against the State Government established by law. The contention that the comments regarding the State Government having appointed a person with a criminal background like the second respondent would induce in the minds of the subordinate officers an impression that they should not obey him and thus, induce disloyalty, does not merit acceptance inasmuch as what is stated in the articles is only an expression of an opinion as regards the act of the Government in appointing the second respondent as Commissioner of Police. If the contention of the second respondent were to be accepted no adverse comment could be made as regards the appointment/promotion of any officer belonging to the police force, which cannot be the intention of the legislature while enacting the said provision. The test for the invoking the said provision would be whether the news items in question has the propensity of evoking amongst the members of the police force feelings of disaffection towards the Government established by law in India or the effect of inducing any member of the police force to withhold his service or to commit a breach of discipline. Besides, the news item has to be read from the stand point of a reasonable man. On a bare reading of the articles in question from the armchair of a reasonable person, the same can, in no manner, be said to have the effect of causing disaffection towards the Government nor can the same be said to have the likelihood of inducing any member of the police force to withhold the service or to commit a breach of discipline. A mere comment on the wisdom of the State Government in appointing the second respondent as Commissioner of Police in the context of his background, can in no manner induce a prudent member of the police force to withhold his service or commit a breach of discipline, nor can such comment have the effect of creating disaffection against the Government. The provisions of section 3 of the said Act would, therefore, not be attracted in the facts of the present cases.

36. Another aspect of the matter is that a perusal of the allegations made in the first information reports shows that the contents of the sections invoked against the applicants have been mentioned therein so as to make out an offence under section 124A IPC and section 3 of the Police (Incitement to Disaffection) Act, 1922.

In this regard it may be apposite to refer to the decision of the Supreme Court in Vijaya Rao v. State of Rajasthan and another (supra) wherein it has been held that mere reference to the expressions mentioned in the provision would not disclose commission of an offence, when the ingredients constituting the offence in question are conspicuously lacking. In the facts of the present case, merely because in the first information reports, it has been stated that the articles in question have been published with the intention to cause hatred against senior police officers of the State Government established by law and that the same have been published as an attempt to cause contempt and hatred against the State Government, the same would not fall within the ambit of section 124A IPC or section 3 of the Police (Incitement to Disaffection) Act, 1922, when the ingredients for constitution of an offence under section 124A IPC and section 3 of the said Act are woefully lacking.

37. As noted earlier it has been contended on behalf of the applicants that it is the case of the respondent that the act, action and conduct of the applicants in publishing the articles continuously for five days clearly reveals that the same is intended to create disorder and/or disturbance of public peace and, therefore, ingredients of offence punishable under section 124A are satisfied. In this case, five first information reports have been registered whereas it is the case of the second respondent that the articles which have been published sequentially are part of a larger conspiracy. It has been submitted that if all the articles form part of the very same conspiracy, separate offences cannot be registered in respect of each first information report and as such, the first information reports are required to be quashed even on this ground. It has also been contended that since a larger conspiracy has been alleged, separate first information reports in respect of the same offence would not be maintainable. Since this court, after examining the case of merits has found that on the allegations made in the first information reports, the offences alleged are not made out, the court does not deem it fit to enter into the arena of the larger question as to whether or not separate first information reports could have been filed in respect of each individual news item.

38. In the light of the aforesaid discussion, this court is of the view that the allegations made in the first information reports in question do not constitute the offence under sections 124A, 120-B and 34 IPC and section 3 of the Police (Incitement to Disaffection) Act, 1922. Under the circumstances, continuance of the proceedings against the applicants would amount to abuse of the process of law, justifying invocation of the powers under section 482 of the Code to secure the ends of justice.

39. For the foregoing reasons, the applications succeed and are, accordingly, allowed. The first information reports registered vide Navrangpura Police Station I-C.R. No.286/2008, 288/2008, 289/2008, 298/2008 and 299/2008 are hereby quashed and set aside. Rule is made absolute accordingly in each of the applications.

Registry is directed to place a copy of this judgment in each application.

( Harsha Devani, j. ) hki