Jugal Kishore And Anr. vs State
1971 Latest Caselaw 207 Del

ORDER

Pritam Singh Safeer, J.

1. This petition raises a grievance, against the charge framed on the 28th April. 1969:

I. A. C, Kher. Magistrate First Class. New Delhi, hereby charge you. Jusal Kishore and Ghamandi Lal as follows:

That you on or about 15/16-12-1968. at Delhi in furtherance of common intention of you both, by getting posters (Mark "A") containing insulting language for Mahatma Gandhi printed and pasted at different places in Delhi, including Parliament Street House, intentionally insulted Mahatma Gandhi and thereby provoked followers of Mahatma Gandhi, including R. C. Madan and K. L. Bahl. P. Ws. intending or knowing that such provocation is likely to cause breach of public peace and thereby committed an offence-punishable under Section 504/34. I. P. C. and within my cognizance.

And I hereby direct that you be tried by me on the said charge.

Sd : A.C. Kher

Magistrate, 1st Class

28-4-1969.

2. It is urged on behalf of the petitioners that no valid permission. as contemplated by Section 155 (2) of the Criminal Procedure Code (hereinafter called "the Code") had been obtained for investigating the case against them and the charge framed is even otherwise illegal. Section 155 of the Code is:

155 (1) When information is given to an officer-in-charge of a police-station of the commission, within the limits of station of a non-cognizable offence. he shall enter in a book, to be kept as aforesaid, the substance of such information and refer the informant to the Magistrate.

(2) No police-officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class, having power to try such case, or commit the same for trial, or of a Presidency Magistrate.

(3) Any police-officer receiving such order, may exercise the same powers in respect of the investigation (except the power of arrest without warrant) as an officer-in charge of a police-station may exercise in a cognizable case.

3. The foregoing provision shows that information must be received by the police officer in charge of a police station. regarding the commission of a non-cognizable offence. Unless, he has received such an information, he cannot proceed even to record it in terms of Section 155 (1) of the Code.

4. Whenever an officer-in-charge of a police-station has received and entered the information, regarding a non-cognizable offence having been committed, he is to refer the informant to the Magistrate. Sub-section (2) makes it clear that no police officer will have the authority to investigate a non-cognizable case without an order of a Magistrate of the First or Second Class having power to try such case or. to commit the same for trial, or in case of a Presidency town, he may receive the permission from a Presidency Magistrate.

5. It is only after receiving the order, that the police officer will get the authority, in terms of Sub-section (3) to exercise same powers in respect of the investigation of a non-cognizable offence, as an officer in charge of a police station may exercise in a cognizable case. He will be having the foregoing authority except the power to arrest without warrant.

6. Mr. D. R. Sethi, appearing for the State, relying upon the order passed by the District Magistrate. Delhi, on the 19th of December. 1968. submits that the said order constituted valid permission for the investigation of the offence:

The order is:

S.P. (South) may please see S. P. Special Branch's report of 17-12-1968 a copy of which is placed below. Shri G. L. Gupta and Shri J. K. Azad of the People's Society. Delhi, have used very insulting language for Mahatma Gandhi, which may provoke some people to break the public peace or to commit any other offence. You may therefore, register a case under Section 504 of the Code I. P. C., and get it investigated thoroughly.

2. This may be treated as permission under Section 155 (2) of the Criminal P. C. for investigating this case.

Sd : xx 19-12-68

(B.N. Tandon)

District Magistrate. Delhi.

No. 1238/PADC/68.

19-12-68.

S.P. South.

As is clear from a perusal of the order, it was passed by the District Magistrate. because of the report, dated the 17th of December. 1968. submitted to him by Shri D. K. Aggrawal. Superintendent of Police, C. I. D.. That report in its entirety is:

SECRET/IMMEDIATE

Criminal Investigation

Department,

Special Branch.

Delhi, dated : the 17th December. 1968. No. 23838-41/Com.

I forward for favor of perusal a copy of the poster cautioned "Gandhi Shatabdi Ka Pakhand Vo Gandhi Vad Ka Dhong" issued under the name of Sarvshri G. L. Gupta and J. K. Azad of People's Society, Delhi, and printed at Khawia Press, Delhi. This poster was found pasted on the walls of a number of buildings in the New Delhi area, including Parliament House, on the night of 16/17-12-1968. The poster, as would be seen, contains scurrilous remark about Gandhi Ji's role in the country's freedom struggle and objects to observance of 30th January as 'Martyrdom Day'.

2. Immediate enquiries were instituted about the source of this poster. One thousand copies of this poster were found to have been got printed by one Jugal Kishore Azad. a resident of House No. 311, Gali Panhari. Teliwara. P. S. Sadar Bazar On 9-11-1968 and a total sum of Rs. 12/- as printing charges was paid to the Press.

3. The People's Society, as has been mentioned in the poster, had first come to notice in August. 1967 when a leaflet, on similar lines was published and the various advocates practicing in the Supreme Court, were requested to move for ban on observance of 'Martyrdom Day' on 30th Jan.

4. This organisation does not command much following. Its office is located at 18/10. Basant Nagar. Delhi, which is the residential house of Shri Sita Ram Bharti, its convenor. Four persons namely Sita Ram Bharti. r/o 18/10. Basant Nagar, P. S. Subzimandi. and an original resident of District Ludhiana. Ghamandi Lal Gupta, r/o 3852. Gali Mandir Wali, Pahari Dhiraj. P. S. Sadar Bazar and an original resident of Murthal (Haryana). Dr. Bhawani Shankar Bhargey. r/o No. 5. Darva Gani and Jugal Kishore Azad (already mentioned in para 2 above) have been found associated with it. These persons call themselves old revolutionaries and have not come to notice in connection with any other political activity. They hold that Jawahar Lal Nehru was the real father of the New India and their slogan is "UP UP with Nehruism and Down Down with Gandhism".

5. The poster is being sent to the P. D. S. P.. Anti-Corruption for his opinion as to whether it is legally actionable.

Sd/-

(D.K. Agrawal)

Superintendent of Police, CID.

S.B. Delhi 17/12.

D. I. G. (A)

Copy, together with a copy of the poster, forwarded for favor of information to W I. G. P. (ii) D. C. and (iii) A. D. (iv) IB. MHA, Govt. of India. New Delhi,

It is no doubt true that the report mentions:

The poster, as would be seen, contains scurrilous remarks about Gandhi Ji's role in the country's freedom-struggle and objects to observance of 30th January as Martyrdom Day' .

It is nowhere stated in the said report dated the 17th December. 1968, that even the author of the report felt provoked on reading the poster within the meaning if Section 504 of the Indian Penal Code, whereunder the charge has been framed against the petitioners. That provision is:

504. Whoever intentionally insults and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years. or with fine, or with both.

A. plain reading of the provision makes it clear that a person would be guilty in terms thereof if he intentionally insults and thereby gives provocation to any person intending or knowing it to be likely. that such provocation will cause him to break the public peace or to commit any other offence. "What is contemplated is an intentional insult to any person lead-ins to provocation or at least intending or knowing it to be likely that such provocation will cause the person, to whom the intentional insult is offered, to break the public peace or to commit any other offence. The provision clearly visualises that the intentional insult will further have in its background, the intention or the knowledge that such intentional insult would, either provoke the person, to whom it is offered, to break public peace, or to commit any other offence. Section 504 will not apply in the circumstances of the instant case.

7. That matter apart, another aspect comes in for determination. Can it be said that on the 19th of December. 1968. when Mr. Tandon passed the order relied upon by the learned Counsel for the State, he was acting on an information, falling within the meaning of Sub-section (1) of Section 155 of the Indian Penal Code? I am driven to the conclusion that he could not have acted within the four-corners of that provision, because the report dated the 17th of December. 1968, on account of which he passed the order discloses that no offence within the meaning of Section 504 had been committed before the said order was Passed by the District Magistrate. The offence should stand committed before the information is received in terms of Section 155 (1) of the Code. The report dated the 17th of December. 1968. did not mention that any person whatsoever had been provoked within the meaning of Section 504, That allegation was seriously wanting. In such a situation, the order dated the 19th of December, 1968. could not be made under Sub-section (2) of Section 155 of the Code. The investigation was without authority. The contention that the two persons, who read the poster were joined in the course of the investigation, is of no avail. If the investigation at its source was unauthorised by Section 155 of the Code, the nature of the evidence collected from those persons or the nature of the information which may have been given to the police would be of no relevance.

8. The charge is quashed. Mr. Sethi, appearing for the State, urges that even if the investigation has been illegal, the State should not be deprived of the action which it may be able to perform, within the four-corners of law. This order will not stand in the way of any legal action which the State may be advised to take.