Jagdev Singh Talwandi vs State of Punjab

D.S. Tewatia, J.

Shri Jagdev Singh Talwandi petitioner has invoked the inherent jurisdiction of this Court under section 482, Criminal Procedure Code, for quashing the F.I.R. No. 295, dated 27th September, 1983, registered with Police Station Kotwali, Amritsar, for the offences under sections 124A, Indian Penal Code, 13 of the Unlawful Activities (Prevention) Act, 1967, and 9 of the Punjab Security of the State Act.

The aforesaid F.I.R. was lodged on the basis of a speech allegedly made by Shri Jagdev Singh Twlwandi petitioner in a conference of the All India Sikh Students Federation held in Dewan Hall, Manji Sahib, Amritsar, on 20th September, 1983, before the audience of 7000/8000. The alleged utterance of Shri Talwandi in the said conference, when rendered in English reads as under :

"The workers of the A. I.S.S.F. (All India Sikh Students Federation) and the Youth Wing, Akali Dal, are present in today''s conference. These association of the young people always works for the wellbeing of the path. In this conference, we here also to review the Morcha launched by the Akali Dal. We have to chalk out the next programme. The Government wants to fail the Morcha, either by prolonging it or by exhausting (the patience of) people. But our leaders would neither fight with each other not they would feel exhausted. The Government should forget that this Morcha would end in fiasco. Minor differences always crop up in the conclaves. But it does not meant that the movements end in failures. If Sant Harchand Singh is cool minded, he should bear in mind that the whole community does not lose it tempo. The community should go on moving rapidly. Now, we have tried all the methods. We cannot remain peaceful any more. Sant Harchand Singh Longowal has also talked about Sikh Personal Law and the Sikhs are a separate nation, alongwith the Anandpur Sahib Resolution. That stage is still far off. The pressure put by us yields contrary results. The Akali leaders having connections with the Government pass on the them all the programme chalked by us. That is why the Government does not budge from its stand. Instead of making Gheraos of the offices of S.Ps/D Cs., the movement should have been launched at Delhi. There is still time that we should form a parallel Government in Punjab against the Central Government. In case Sant Harchand Singh orders, we can form a parallel Government. The problem could only be solved by forming a Government of the Khalsa. This is only a proposal put forward by me. The approval can only be granted by Sant Harchand Singh Logowal Ji. The Government is not prepared for any parleys unless we force it to do so. The workers of the A.I.S.S.F. should also be prepared for this task. The Akali Dal should chalk out some concrete programme."

An F.I.R. or criminal complaint can be quashed by High Court in exercise of its inherent jurisdiction only when the contents of the F.I.R. or the criminal complaint, which have to be taken at its face value, that is, assumed to be correct, do not constitute the offences in question.

Since the detention order dated 3rd October, 1983 against the petitioner which was, interalia, based on the very speech, has been upheld, vide judgment dated 27.1.1984, so at this stage it would also be not out of place to point out a distinction in approach while judging as to whether the given facts constituted the given offence, and the approach which the Court brings to bear upon very facts while judging the validity of a detention order based on those facts.

In judging the validity of a detention order, the Court cannot apply an objective test and say that objectively judged the detaining authority could not have subjectively reached the given conclusion, while in considering as to whether given facts constitute the given offence, the Court could objectively analyse the facts, and where mens rea forms the necessary ingredient of given offence, judge whether the guilty intent animated the given act or not.

Mr. Grewal, learned counsel for the petitioner, has canvassed that a fair reading of the said speech would show that the necessary ingredient s of Section 124A, Indian Penal code, or that of Section 13 of the Unlawful Activities (Prevention) Act 1967, or Section 9 of the Punjab Security of the State Act, are not made out, therefore, the F.I.R. is liable to be quashed.

In order to appreciate the contention advanced on behalf of the petitioner, the relevant provisions in question would deserve notice at the very outset.

Section 124A of the Indian Penal Code reads as under :

"124A. SeditionWhoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hater or contempt or excites of attempts to excite disaffection towards Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1 The expression "disaffection" includes disloyalty and all feelings of enmity.

Explanation 2 Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3 Comments expressing disapprobation of the Administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section."

Relevant provisions of section 13 of the Unlawful Activities (Prevention) Act, 1967, read as under :

"13. Punishment for unlawful activities :

(1) Whoever

(a) takes part in or commits, or

(b) advocates, abets, advises or incites the commission of, any unlawful activities, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine." **, **, ** "

Section 9 of the Punjab Security of the State Act reads as under :

"9 Dissemination of rumors etc : Whoever

(a) makes any speech, or

(b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or morality, or amounts to contempt of Court, defamation or incitement to an offence prejudicial to the security of the State or the maintenance of public order, or tends to overthrow the State, be punishable with imprisonment which may extend to three years or with fine or with both."

Mr. Grewal, learned counsel for the petitioner, who appeared, to lean on the interpretation adopted by their Lordships on the provisions of Section 124A, Indian Penal Code, in Kedar Nath v. State of Bihar, A.I.R. 1962 S.C. 955, urged that when section 124A is so interpreted, then objectionable speech in question cannot be held to constitute the said offence.

Their Lordships, in the aforesaid case, in order to save the provision of Section 124A from being declared unconstitutional being violative of article 19(1)(a) of the Constitution, have approved a narrow interpretation of the said provision as commended by Gwyer. C.J. of the Federal Court in Niharendu v. Emperor, AIR 1942 F.C. 22, that Section 124A" aims at rendering penal only such activities as would be intended or have the tenancy to create a disorder or disturbance of public peace by resort to violence", as against the literal interpretation of the said provision which found favor with the Privy Council in Queen Empress v Bal Gangadhar Tilak, (98) ILR 22 Bombay 112, and Queen Empress v. Jogendra Chunder Bose, (92) ILR 19 Calcutta 35.

A fair reading of the speech of the petitioner would show that he sought to critically analyse the progress of Akali Morcha which appears to have reached the stage of stalemate, the prospects of its success and the attitude of the Government. The petitioner reminded his audience which comprised primarily of students and youth activities whose conference he was addressing and who were said to be playing active role in the conduct of the Morcha lunched to secure the fulfilment of their certain demands which were partly of religious nature and partly of economic and political natureachievement of an independent Sikh State or secession from India was not a part of the said demands. The petitioner observed in his speech that some Akali leaders have been keeping the Government in touch with what transpires in their otherwise closeddoor meetings, including the difference of opinion amongst leading lights of the Akali Dal and other faction leaders from which the Government appears to think that the Akali Dal would not be able to sustain its, Morcha for long. The petitioner sought to convey to the Government that if that was what the Government had come to believe, then it was entirely mistaken, that in all movements differences of opinion between the leaders of the movement were bound to be there but on that account a movement would not fail and that the Akali Morcha would continue. He however, gave vent to a felling of helplessness when he uttered that the Akali Dal had used all reasonable means to convince the Government of justness of their demands but nothing appears to avail on account of the fact that the Government was harboring a mistaken belief that Akali Morcha would not be sustained and end up in a failure due to mutual factional quarrels. He sought to warm the Government (one would feel out of anguish) that, faced with such unreasonable and unyielding attitude on the part of the Government, the movement out of frustration may no longer be able to keep up the existing peaceful stance. He also appeared to do a bit of loud thinking about a veiled threat of the movement deciding to turn into a movement for establishing a Government in Punjab parallel to the Central Government it the Government did not change its unreasonable stand in regard to their demands, when he made a suggestion to this effect to Sant Longowal, the Morcha Dictator. The petitioner may impliedly have intended to criticise Sant Longowal also for being temperamentally too cool whereas the Morcha, the petitioner might have field, required a leader, who, speaking metaphorical;y if not prepared to bite, would at least be prepared to hiss. However, from his observation, it cannot be held that the petitioner intended to create public disorder or disturbance of law and order by resort to violence or the suggestion made by him to Morcha Dictator had that tendency. Therefore, even when every word of objectionable utterance is assumed to have been uttered by the petitioner the same when reasonably read does not appear to be seditious and does not constitute an offence under Section 124A, Indian Penal Code, nor for the same very reasons it would constitute offence under Section 13 of the Unlawful Activities (Prevention) Act and Section 9, of the Punjab Security of the State Act, for these provisions too have to yield to a narrow interpretation of the kind if these are to be saved from a challenge to their constitutionality.

Mr. Gurmukh Singh representing the respondentState, however, urged that since the petitioner advocated establishment of a Government parallel to the Central Government and made a suggestion for the acceptance of the same to the Morcha Dictator, the same clearly fell within the ambit of clause (b) of Section 13 of the Unlawful Activities (Prevention) Act, 1967.

Clause (b) of section 13 of the said Act makes penal the advocacy or advice of the commission of unlawful activity. Expression `unlawful activity'' has been deinded by Section 2 (f) of the said Act in the following terms :

"2. In this Act unless the context otherwise requires

*, *, *, *, *

(f) `unlawful activity'', in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),

(i) which is intended, or supports any clay, to bring about, on any ground whatsoever, the cession of apart of the territory of India or the secession of a part of the territory of Indian from the Union, which incites any individual or group of individuals to bring about such cession or secession;

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India;

*, *, *, *, *, *

Mr. Gurmukh Singh, learned counsel for the respondentsState, argued that since the petitioner suggested to the Morcha Director that Akali Dal should establish a Government in Punjab parallel to the Central Government, so it must be taken that he intended to support a claim to being about the secession of a part of the territory of India from the Union or in any case it amounted to the questioning of sovereignty and territorial integrity of India which clearly constituted an unlawful activity.

In my opinion on, there is no merit in this contention. The suggestion in question was born out of frustration and helplessness and amounted to no more than merely covering to the Government that `please adopt a reasonable attitude lest the Morcha also comes to assume an equally unreasonable attitude of the kind.'' If the threat contained in the suggestion is out of patriotic motives to impress upon the Government that the Government by its unreasonably committed to the achievement of an independent State, it would not constitute unlawful activity and, therefore, no offence under Section 13 of the Unlawful ACtivities (Prevention) Act, 1967, is made out.

For the reason aforementioned, the petition is allowed and the F.I.R. 295 dated 27.9.1983, registered at Police Station Kotwali, Amritsar, is quashed.

Petitioner allowed