LAWS(MPH)-1966-5-13

STATE OF MADHYA PRADESH Vs. BALESHWARDAYAL

Decided On May 07, 1966
STATE OF MADHYA PRADESH Appellant
V/S
BALESHWARDAYAL Respondents

JUDGEMENT

(1.) EACH of these three appeals is against the same batch of four respondents accepting joint responsibility for the publication early in 1963 of certain articles and news-items in a weekly paper called "choukhambha" published at Indore. They form a board editing the journal and when the prosecution was lodged under Rule 41 (5) of the Defence of India Rules of 1962 they refused to divulge the individual author of any of these articles which in all were eight in number and insisted upon being prosecuted jointly. The gravamen of the charge against them was that in these articles which will presently be referred to one by one they had given pre. judicial reports, and thereby committed pre-judicial acts likely to cause disaffection among that armed forces, prejudice and interference with the recruitment and the discipline among such forces, bringing them into hatred and contempt and the exciting of disaffection towards the government in general, and of the officers in particular and finally to prejudice the conduct of the military operations. Three separate cases were started but on account of the general similarity of the material upon which the prosecution was based and the identity of the accused they were heard together. The learned Additional District Magistrate felt that -The prosecution has not been able to adduce any positive evidence in this respect to prove that any disaffection, hatred or contempt was ever occasioned or there was any likelihood of any such incident. In my view mere giving caution is not a prejudicial act and no offence is proved. Obviously the learned Magistrate was looking for direct evidence from the mouth of witnesses that reading such and such report the witness or witnesses acquired a certain attitude to the armed forces. He forgot that the essence of the charge was the tendency which may or may not have materialised in any individual case and which even if materialised may not have been capable of direct proof by positive evidence.

(2.) ACCORDINGLY three appeals have been filed by the State and have been heard together.

(3.) THE basic argument on behalf of State is that in all such cases we have to see the tendency or the "likelihood" which is the word used in Rule 35 of the particular Act or report causing any of the undesirable repercussions in the mind of the public. As against it the reply of the respondents is that in all such cases we should not be guided by the immediate verbal purport of the report or the article but should give due regard to the motive behind it. It is strenuously urged that exceptions to the freedom of speech given by Article 19 of the Constitution though the Defence of India Rules are, still they do not have the effect of completely abolishing that right. Something of it still remains and the respondents should be deemed justified in their exercise of what might be called the "residuary freedom of speech. " Again, it is urged that though taken literally these reports and comments may come within the letter of Rules 35 (6) (b) to (f) and 35 (7), they should be projected into a democratic set up and the real spirit behind them as understood by the respondents should be sympathetically viewed. The respondents place their case on the general principles mentioned and suggested in Niharendu Dutt v. Emperor AIR 1942 FC 22 which has been followed in certain rulings like In re Kissan Singh, A I R 1943 Mad 514. State for its part points out that AIR 1912 PC 22 has been clearly overruled in Emperor v. Sadashiv Narayan AIR 1947 PC 82.