Equivalent Citation: AIR1991SC420, 1991(1)BLJR550, (1991)1CompLJ209(SC),

JT1991(1)SC77, 1991(1)PLJR69, 1991(1)SCALE8, (1991)1SCC598, [1991]1SCR5,

1991(1)UJ533
IN THE SUPREME COURT OF INDIA
Writ Petn. (C) No. 381 of 1988
Decided On: 09.01.1991
Appellants: Subhash Kumar
Vs.
Respondent: State of Bihar and Ors.
Hon'ble
K.N. Singh and N.D. Ojha, JJ.

Judges/Coram:

Subject: Environment
Catch Words
Mentioned IN
Acts/Rules/Orders:
Water (Prevention and Control of Pollution) Act, 1978 - Section 17, Water (Prevention
and Control of Pollution) Act, 1978 - Section 24; Water (Prevention and Control of
Pollution) Act, 1974 - Section 25, Water (Prevention and Control of Pollution) Act,
1974 - Section 26; Essential Commodities Act - Section 7; Mines and Mineral
(Regulation and Development) Act, 1957; Indian Penal Code - Section 379, Indian
Penal Code - Section 411; Constitution of India - Article 21, Constitution of India Article 32, Constitution of India - Article 226
Cases
Referred:
Kundori Labour Co-operative Society Ltd. v. State of Bihar AIR 1986 Pat.
242; Bandhua Mukti Morcha v. Union of India : (1984) 2 SCR 67 : AIR 1984 SC
802; Sachidanand Pandey v. State of West Bengal : (1987) 2 SCC 295 : AIR 1987 SC
1109; Ramsharan Autyanuprasi v. Union of India : (1989) Supp. 117 SCC
251; Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P (1990) 4 SCC 449
JUDGMENT
K.N. Singh, J.
1. We heard the arguments in detail on 13-12-1990 and dismissed the petition with
costs amounting to Rs. 5,000/- with the direction that the reasons shall be delivered
later on. We are, accordingly, delivering our reasons. This petition is Under
Article 32 of the Constitution by Subhash Kumar for the issue of a writ or direction
directing the Director of Collieries, West Bokaro Collieries at Ghatotand, District

Hazaribagh in the State of Bihar and the Tata Iron & Steel Co. Ltd. to stop forthwith
discharge of slurry/sludge from its washeries at Ghatotand in the District of
Hazaribagh into Bokaro river. This petition is by way of public interest litigation for
preventing the pollution of the Bokaro river water from the sludge/slurry discharged
from the washeries of the Tata Iron & Steel Co. Ltd. The Petitioner has alleged that the
Parliament has enacted the Water (Prevention and Control of Pollution) Act, 1978
(hereinafter referred to as 'the Act') providing for the prevention and control of water
pollution and the maintaining or restoring of wholesomeness of water, for the
establishment of Board for the prevention and control of water pollution. Under the
provisions of the Act the State Pollution Control Board constituted to carry out
functions prescribed Under Section 17 of the Act which among other things provide
that the Board shall inspect sewage or trade effluents and plants for the treatment of
sewage and trade effluents and to review plans, specifications or other data set up for
the treatment of water and to lay down standards to be complied with by the persons
while causing discharge of sewage or sullage. Section 24 of the Act provides that no
person shall knowingly cause or permit any poisonous, noxious or polluting matter to
enter into any stream or well which may lead to a substantial aggravation of pollution.
The Petitioner has asserted that Tata Iron and Steel Co., Respondent No. 5 carries on
mining operation in coal mines/washeries in the town of Jamshedpur. These Coal Mines
and Collieries are known as West Bokaro Collieries and the Collieries has two Coal
Washeries where the coal after its extraction from the mines is brought and broken
into graded pieces and thereafter it is processed for the purpose of reducing its ash
contents. A chemical process is carried out which is known as 'froth floatation process'.
Under this process the graded coal is mixed with diesel oil, pine oil and many other
chemical ingredients and thereafter it is washed with the lacs of gallons of water. The
end water is washed coal with reduced quantity of ash content fit for high graded
metallurgical process for the purposes of manufacture of steel. In the process of
washing large quantity of water is discharged through pipes which carry the
discharged water to storage ponds constructed for the purpose of retaining the slurry.
Along with the discharged water, small particles of coal are carried away to the pond
where the coal particles settle down on the surface of the pond, and the same is
collected after the pond is de-watered. The coal particles which are carried away by
the water is called the slurry which is ash free, it contains fine quality of coal which is
used as fuel.
2. The Petitioner has alleged that the surplus waste in the form of sludge/slurry is
discharged as an effluent from the washeries into the Bokaro river which gets
deposited in the bed of the river and it also gets settled on land including the
Petitioner's land bearing Plot No. 170. He has further alleged that the sludge or slurry
which gets deposited on the agricultural land is absorbed by the land leaving on the
top a fine carboniferous product or film on the soil, which adversely affects the fertility
of the land. The Petitioner has further alleged that the effluent in the shape of slurry is
flown into the Bokaro river which is carried out by the river water to the distant places
polluting the river water as a result of which the river water is not fit for drinking
purposes nor it is fit for irrigation purposes. The continuous discharge of slurry in
heavy quantity by the Tata Iron & Steel Co. from its washeries posing risks to the
health of people living in the surrounding areas and as a result of such discharge the

problem of pure drinking water has become acute. The Petitioner has asserted that in
spite of several representations, the State of Bihar and State Pollution Control Board
have failed to take any action against the Company instead they have permitted the
pollution of the river water. He has further averted that the State of Bihar instead of
taking any action against the Company has been granting leases on payment of
royalty to various persons for the collection of slurry. He has, accordingly, claimed
relief for issue of direction directing the Respondents which include the State of Bihar,
the Bihar Pollution Control Board, Union of India and Tata Iron & Steel Co., to take
immediate steps prohibiting the pollution of the Bokaro river water from the discharge
of slurry into the Bokaro river and to take further action under provisions of the Act
against the Tata Iron & Steel Co.
3. The Respondents have contested the petition and counter-affidavits have been filed
on behalf of the Respondents Nos. 2, 4 and 5 -- State of Bihar, State Pollution Board,
Directors of Collieries and Tata Iron & Steel Co. Ltd. In the counter-affidavits filed on
behalf of the Respondents, the Petitioner's main allegation that the sludge/slurry is
being discharged into the river Bokaro causing pollution to the water and the land and
that the Bihar State Pollution Board has not taken steps to prevent the same is denied.
In the counter-affidavit filed on behalf of the Bihar State Pollution Board it is asserted
that the Tata Iron & Steel Co. operates open case and underground mining. The
Company in accordance to Section 25 and 26 of the Water (Prevention and Control of
Pollution) Act, 1974 applied for sanction from the Board to discharge their effluent
from their outlets. The Board before granting sanction analysed their effluent which
was being watched constantly and monitored to see that the discharge does not affect
the water quality of the Bokaro river adversely. In order to prevent the pollution the
Board issued direction to the Director of the Collieries to take effective steps for
improving the quality of the effluent going into the Bokaro river. The State Pollution
Board imposed conditions requiring the Company to construct two settling tanks for
settlement of solids and rewashing the same. The Board directed for the regular
samples being taken and tested for suspended solids and for the communication of the
results of the tests to the Board each month. The State Board has asserted that the
Company has constructed four ponds ensuring more storing capacity of effluent. The
Pollution Board has been monitoring the effluent. It is further stated that on the
receipt of the notice of the instant writ petition the Board carried out an inspection of
the settling tanks regarding the treatment of the effluent from the washeries on 20th
June, 1988. On inspection it was found that all the four settling tanks had already
been completed and work for further strengthening of the embankment of the tanks
was in progress, and there was no discharge of effluent from the washeries into the
river Bokaro except that there was negligible seepage from the embankment. It is
further stated that the Board considered all the aspects and for further improvement it
directed the management of the collieries for removal of the settled slurry from the
tanks. The Board has directed that the washeries shall perform dislodging of the
settling tanks at regular intervals to achieve the proper required retention time for the
separation of solids and to achieve discharge of effluents within the standards
prescribed by the Board. It is further asserted that at present there is no discharge
from any of the tanks to the Bokaro river and there is no question of pollution of the
river water or affecting the fertility of land. In their affidavits filed on behalf of the

Respondents Nos. 4 and 5, they have also denied the allegations made in the petition.
They have asserted that the effective steps have been taken to prevent the flow of the
water discharge from the washeries into the river Bokaro. It is stated that in fact river
Bokaro remains dry during 9 months in a year and the question of pollution of water
by discharge of slurry into the river does not arise. However, the management of the
washeries have constructed four different ponds to store the slurry. The slurry which
settles in the ponds is collected for sale. The slurry contains highly carboniferous
materials and it is considered very valuable for the purpose of fuel as the ash contents
are almost nil in the coal particles found in the slurry. Since, it has high market value,
the Company would not like it to go in the river water. The Company has taken
effective steps to ascertain that no slurry escapes from its ponds as the slurry is highly
valuable. The Company has been following the directions issued by the State Pollution
Control Board constituted under the 1974 Act.
4. On the facts as appearing from the pleadings and the specific averments contained
in the counter-affidavit filed on behalf of the State Pollution Control Board of Bihar,
prima facie we do not find any good reason to accept the Petitioner's allegation that
the water of the river Bokaro is being polluted by the discharge of sludge or slurry into
it from the washeries of the Respondent-company. On the other hand we find that the
State Pollution Control Board has taken effective steps to check the pollution. We do
not consider it necessary to delve into greater detail as the present petition does not
appear to have been filed in public interest instead the petition has been made by the
Petitioner in his own interest.
5. On a perusal of the counter-affidavit filed on behalf of the Respondents Nos. 4 and 5
it appears that the Petitioner has been purchasing slurry from the Respondents Nos. 4
and 5 for the last several years. With the passage of time he wanted more and more
slurry, but the Respondent-company refused to accept his request. The Petitioner is an
influential businessman, he had obtained a licence for coal trading, he tried to put
pressure through various sources on the Respondent-company for supplying him more
quantity of slurry but when the Company refused to succumb to the pressure, he
started harassing the Company. He removed the Company's slurry in an unauthorised
manner for which a Criminal Case No. 178 of 1987 Under Sections 379 and 411 of the
Indian Penal Code read with Section 7 of the Essential Commodities Act was registered
against the Petitioner and Pradip Kumar his brother at Police Station Mandu, which is
pending before the Sub-Judge, Hazaribagh. One Shri Jugal Kishore Jayaswal also filed
a criminal complaint Under Sections 379 and 411 of the Indian Penal Code against the
Petitioner and his brother Pradip Kumar in the Court of Judicial Magistrate, First Class,
Hazaribagh, which is also pending before the Court of Judicial Magistrate, 2nd Class
Hazaribagh. The Petitioner initiated several proceedings before the High Court of Patna
Under Article 226 of the Constitution for permitting him to collect slurry from the
raiyati land. These petitions were dismissed on the ground of existence of dispute
relating to the title of the land. The Petitioner filed a Writ Petition C.W.J.C. No. 887 of
1990 in the High Court of Patna for taking action against the Deputy Commissioner,
Hazaribagh for implementing the Full Bench judgment of the Patna High Court in
Kundori Labour Co-operative Society Ltd. v. State of Bihar AIR 1986 Pat. 242, wherein
it was held that the slurry was neither coal nor mineral instead it was an industrial

waste of coal mine, not subject to the provisions of the Mines and Mineral (Regulation
and Development) Act, 1957. Consequently the collection of slurry which escaped from
the washeries could be settled by the State Government with any person without
obtaining the sanction of the Central Government. The Petitioner has been contending
before the High Court that the slurry which was discharged from washeries did not
belong to the Company and he was entitled to collect the same. Since the Respondentcompany prevented the Petitioner from collecting slurry from its land and as it further
refused to sell any additional quantity of slurry to him, he entertained grudge against
the Respondent-company. In order to feed fat his personal grudge he has taken
several proceedings against the Respondent-company including the present
proceedings. These facts are quite apparent from the pleadings of the parties and the
documents placed before the Court. In fact, there is intrinsic evidence in the petition
itself that the primary purpose of filing this petition is not to serve any public interest
instead it is in self interest as would be clear from the prayer made by the Petitioner in
the interim stay application. The Petitioner claimed interim stay application. The
Petitioner claimed interim relief from this Court permitting him to arrest/collect
sludge/slurry flowing out of the washeries of the Respondents Nos. 4 and 5 and with a
direction to the State of Bihar, its officers and other authorities for not preventing him
from collecting the sludge/slurry and transporting the same. The prayer for the interim
relief made by the Petitioner clearly indicates that he is interested in collecting the
slurry and transporting the same for the purposes of his business. As already stated a
Full Bench of the Patna High Court held that the slurry was not coal and the provisions
of the Mines and Mineral (Regulation and Development) Act, 1957 were not applicable,
the State Government was free to settle the same and the Tata Steel & Iron Co. had
no right to collect the slurry which escaped from its washeries. The Respondentcompany filed an appeal before this Court. During the pendency of the aforesaid
appeal, the Petitioner filed the present petition. The appeal preferred by the Tata Iron
& Steel Co. Ltd. and Bharat Coking Coal Ltd. was allowed by this Court and the
judgment of Patna High Court was set aside. The judgment of this Court is reported
in JT (1990) 3 (SC) 533, wherein it has been held that the slurry/coal deposited on
any land continues to be coal and the State Government has no authority in law to
deal with the same and the slurry deposited on the Company's land belongs to the
Company and no other person had authority to collect the same.
6. Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the
Apex Court. It provides for an extraordinary procedure to safeguard the Fundamental
rights of a citizen. Right to live is a fundamental right Under Article 21 of the
Constitution and it includes the right of enjoyment of pollution free water and air for
full enjoyment of life. If anything endangers or impairs that quality of life in derogation
of laws, a citizen has right to have recourse to Article32 of the Constitution for
removing the pollution of water or air which may be determined to the quality of life. A
petition Under Article 32 for the prevention of pollution is maintainable at the instance
of affected persons or even by a group of social workers or journalists. But recourse to
proceeding Under Article 32 of the Constitution should be taken by a person genuinely
interested in the protection of society on behalf of the community. Public interest
litigation cannot be invoked by a person or body of persons to satisfy his or its
personal grudge and enmity. If such petitions Under Article 32, are entertained it

would amount to abuse of process of the Court, preventing speedy remedy to other
genuine Petitioners from this Court. Personal interest cannot be enforced through the
process of this Court Under Article 32 of the Constitution in the garb of a public
interest litigation. Public interest litigation contemplates legal proceeding for
vindication or enforcement of fundamental rights of a group of persons or community
which are not able to enforce their fundamental rights on account of their incapacity,
poverty or ignorance of law. A person invoking the jurisdiction of this Court Under
Article 32 must approach this Court for the vindication of the fundamental rights of
affected persons and not for the purpose of vindication of his personal grudge or
enmity. It is duty of this Court to discourage such petitions and to ensure that the
course of justice is not obstructed or polluted by unscrupulous litigants by invoking the
extraordinary jurisdiction of this Court for personal matters under the garb of the
public interest litigation, see Bandhua Mukti Morcha v. Union of India
: (1984) 2
SCR 67 : AIR 1984 SC 802; Sachidanand Pandey v. State of West Bengal : (1987) 2
SCC 295 at p. 331 : AIR 1987 SC 1109; Ramsharan Autyanuprasi v. Union of India:
(1989) Supp. 117 SCC 251 and Chhetriya Pardushan Mukti Sangharsh Samiti v. State
of U.P. : (1990) 4 SCC 449. In view of the above discussion, we are of the opinion that
this petition has been filed not in any public interest but for the Petitioner's personal
interest and for these reasons we dismiss the same and direct that the Petitioner shall
pay Rs. 5,000/- as costs. These costs are to be paid to the Respondents Nos. 3, 4 and
5.

Equivalent Citation: AIR1990SC630, 1990 (16) ALR 173, 1990(92)BOMLR145,

JT1990(1)SC106, 1990(1)SCALE86, (1990)1SCC520, 1990(1)UJ379
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 2598 of 1989
Decided On: 31.01.1990
Appellants:M/s. Shantistar Builders
Vs.
Respondent:Narayan Khimalal Totame and others
Hon'ble
Ranganath Misra, P.B. Sawant and K. Ramaswamy, JJ.

Judges/Coram:

Subject: Property
Catch Words
Mentioned IN
Relevant
Section:
Urban Land (Ceiling and Regulation) Act, 1976 - Section 10; Urban Land (Ceiling and
Regulation) Act, 1976 - Section 19(1), Urban Land (Ceiling and Regulation) Act, 1976 Section 20, Urban Land (Ceiling and Regulation) Act, 1976 - Section 21
Acts/Rules/Orders:
Constitution of India - Article 21, Constitution of India - Article 46, Constitution of
India - Article 226; Urban Land (Ceiling and Regulation) Act, 1976 - Section
2(9), Urban Land (Ceiling and Regulation) Act, 1976 - Section 10, Urban Land (Ceiling
and Regulation) Act, 1976 - Section 19(1), Urban Land (Ceiling and Regulation) Act,
1976 - Section 20, Urban Land (Ceiling and Regulation) Act, 1976 - Section 21
Cases
Union of India v. Valluri Basavaiah Chaudhary,
Citing

Discussed
1

Referred:

Reference:

Case
Note:
Property - Construction - Section 20 of Urban Land (Ceiling & Regulation) Act,
1976 - Present appeal deals with the permission to builders to escalate rates
in respect of construction permitted on exempted land under provisions of
Act - Held, as a working guideline Court direct that a 'means test' for
identifying 'weaker sections of society shall be adopted and for present
income of family of applicant must not exceed Rs. 18,000/- to come within
meaning of term to qualify for allotment - Applicant shall be called upon to
satisfy the Committee about limit of income and present prescription of Rs.
18,000/- may be varied from time to time by State Government taking into
consideration the fall of value of rupee, general improvement in the income of
people now within annual income limit or Rs. 18,000/- and other relevant
factors - It shall be open to the State Government to prescribe appropriate
guideline in the matter of identifying the 'weaker sections of the society' Committee shall have powers to scrutinise all relevant documents and give
appropriate directions to builders and applicants keeping requirements of
schemes and Code in view - Bombay High Court shall take steps to ensure
that in respect of schemes in every agglomeration undertaken and which
State Government may in future undertake, the services of an efficient
judicial officer not below rank of an Additional District Judge on such terms
as State Government and High Court consider appropriate shall be made
available for discharging duties indicated and/or as may be provided - State
Government shall suitably modify its Code in the light of this judgment and
recirculate same to all concerned within four weeks from today - Liberty is
given to members of weaker sections residing in other States, builders and
respective State Governments to ask for extension of Code with such
modifications as may be necessary for other parts of country
ORDER
Ranganath Misra, J.
1. Respondents filed a writ petition under Article 226 of the Constitution in the Bombay
High Court challenging permission to the builders to escalate the rates in respect of
construction permitted on exempted land under the provisions of the Urban Land
(Ceiling & Regulation) Act, 1976 (hereinafter 'Act' for short). The respondents made an
application (Civil application No. 5748/89) for amendment of the averments in that
writ petition but by order dated 12th of December, 1988, the High Court rejected the
civil application and refused leave to amend. By a subsequent order dated 16th of
December, 1988, in the writ petition, the High Court held:
The Writ Petition as filed does not survive. It has become infructuous by
changed government policy and the resolutions and letters already referred to
in our order under the Civil Application. Hence, the same is dismissed.
We propose to give some directions regarding future monitoring of the scheme.
These directions are restricted to this particular project only and although

detailed monitoring is desirable with regard to all schemes sanctioned under

Section 20, this should be considered by the Government and no directions by
the Court ran be given generally without considering the difficulties of the
Government. However, this one scheme is capable of proper monitoring and we
propose to give certain additional directions to the competent authority for
monitoring the same....
The direction of the High Court in regard to monitoring has been challenged by the
builder in this appeal by special leave.
2. At the initial stage of hearing of this appeal we had been told that the State of
Maharashtra was considering the formulation of certain guidelines in respect of
constructions over exempted lands covered under Section 20 of the Act and at the
close of the hearing the formulation of the State Government has been placed for our
consideration.
3. A Constitution Bench of this Court in Union of India v. Valluri Basavaca Choudhary
[1979]3SCR802 , while dealing with a dispute relating to the vires of the Act stated:
The primary object and purpose of the Urban Land (Ceiling and Regulation) Act, 1979, as
the long title and the preamble show, is to provide for the imposition of a ceiling on
vacant land in urban agglomerations, for the acquisition of such land in excess of the
ceiling limit, to regulate the construction of buildings in such land and for matters
connected therewith, with a view to preventing the concentration of urban land in the
hands of a few persons and speculation and profiteering therein, and with a view to
bringing about an equitable distribution of land in urban agglomerations to subserve the
common good, in furtherance of the Directive Principles of Article89(b) and (c).
4. Under the scheme of the Act, urban agglomerations have been divided into four
classes and a ceiling has been prescribed for each classification. The vacant land in
excess of the ceiling under the provisions of Section 10 of the Act vests in the State by
way of acquisition and the vacant sites thus acquired by the State are intended to be
utilised for purposes of housing and Sections 23 and 24 of the Act provide for disposal
of vacant land. The Act, therefore, purports to take away the excess land from the
holders thereof and utilise the same for purposes of housing and other public
purposes. Chapter IV of the Act provides for regulation of transfer as also use of urban
property. Section 20 empowers the State to exempt lands from the purview of the Act
by providing:
20. Power to exempt.
(1). Notwithstanding anything contained in any of the foregoing provisions of this
chapter, (a) Where any person holds land in excess of the ceiling limit
and the State Government is satisfied, either on its own motion
or otherwise, that, having regard to the location of such land,

the purpose for which such land is being used or is proposed to

be used and such other relevant factors as the circumstances of
the case may require, it is necessary or expedient in the public
interest so to do, that Government may, by order, exempt,
subject to such conditions, if any, as may be specified in the
order, such vacant land from the provisions of this chapter....
And Section 21 provides:
21 Excess vacant land not to be treated as excess in certain cases.
(1) Notwithstanding anything contained in any of the foregoing
provisions of this chapter, where a person holds any vacant land in
excise of the ceiling limit and such person declares within such time, in
such form and in such manner as may be prescribed before the
Competent Authority that such land is to be utilised for the construction
of dwelling units (each such dwelling unit having a plinth area not
exceeding eighty square metres) for the accommodation of the weaker
sections of the society , in accordance with any scheme approved by
such authority as the State Government may, be notification in the
Official Gazette, specify in this behalf, then, the Competent Authority
may, after making such inquiry as it deems fit, declare such land, not to
be excess land for the purposes for this chapter and permit such person
to continue to hold such land for the aforesaid purpose, subject to such
terms and conditions as may be prescribed, including a condition as to
the time-limit within which such buildings are to be constructed.
5. Both Sub-sections 20 and 21 contain provisions that if Government or the
competent authority, as the case may be, is satisfied that any of the conditions subject
to which exemption was granted is not complied with, it shall be competent for it to
withdraw the order under Section 20 or declare such land to be excess land under
Section 21 and bring it within the mischief of the statute.
6. In the instant case on January 11, 1978, on the basis of an application made on
24th October, 1987, the State Government made an order of exemption, the salient
portions of which are extracted for convenience:
GOVERNMENT OF MAHARASHTRA
NO. HWE-1077/XXXV
GENERAL
ADMINISTRATION
BOMBAY-400032.

DEPARTMENT,

MANTRALAYA,

11TH JANUARY, 1978.

WHEREAS (1) Shri Kumarpal Vadilal Shah (2) Shri Navinchandra Vadilal Shah
(3) Smt. Champaoen w/o Vadilal Shah (4) Shri Vasantlal Vadilal Shah (5) Shri

Babulal Vadilal Shah (6) Smt. Pushpa Maugaldas Shah (7) Smt. Nirmala Hiralal
Shah (8) Smt. Shakuntala Tansukhlal Parekh and (9) Smt. Madhuabala Vadilal
Shah (persons at Sr. Nos.2 to 9 by their Constituted Attorney Shri Kumarpal
Vadilal Shah), 26, Suneel Shopping center, Opp. Navrang Talkies, Andheri
(West), Bombay - 400 058, hold vacant lands in excess of the Ceiling Limit in
the Greater Bombay Urban Agglomeration, details of which are given in the
Schedule 'A' herein:
AND WHEREAS the said persons have applied for exemption under
Section 20 of the Urban Land (C.& Sub-section ) Act,1976 (33 of 1976).
AND WHEREAS, the said persons have mentioned in their application,
that their Scheme of construction of houses for Weaker Section will be
executed by them, through Messers STAR BUILDERS, 302, Sharda
Chambers, 15 New Marine Lines, Bombay - 20.
NOW THEREFORE, in exercise of the powers conferred by Sub-section
(1) of Section 20 of the said Act, after having recorded in writing the
reasons for making this Order, the Government of Maharashtra hereby
exempts the said vacant lands, from the provisions of Chapter III of the
said Act, subject to the following conditions viz.:
1) The lands exempted under this exemption order shall be used
by the said persons for the purpose of housing for weaker
section comprising 17, 000 (seventeen thousand) tenements
consisting of 3,000 (three thousand) tenements of plinth area,
not exceeding 20.00 sq. metrs., 10,000 (ten thousand)
tenements of plinth area, not exceeding 30.00 sq. metrs., 3,000
(three thousand) tenements of plinth area, not exceeding 44.00
sq. mtrs. and 1,000 (one thousand) tenements of plinth area,
not exceeding 57.00 sq. mtrs. Any change made in the user of
the land shall amount to a breach of this condition.
2) The said persons shall make full utilization of the land so
exempted for the purpose aforesaid, by constructing on the land
the 17,000 tenements as specified in the condition No. 2 above.
The said persons shall commence construction of the tenements
within a period of one year from the date of this exemption
order and shall complete the construction work within a period
of five years from that date, failing which the exemption shall
stand withdrawn. If only a part of land is utilized and a part
remains vacant at the end of period of five years, exemption
shall be deemed to have been withdrawn.
3) The final selling price, all inclusive of each of the dwelling
units shall not exceed Rs. 50/- (Rs. fifty only) per sq. of plinth
area. Each tenement is to be provided with all the amenities as

mentioned in the Schedule 'B' attached to this Order and as

mentioned in the State Government Scheme, announced on 2nd
October, 1977 for construction of houses for Weaker Sections of
Society on surplus vacant land by the land holder. The details of
construction shall not be inferior to those already mentioned in
the application. The acutely construction and the quality of
construction shall not be inferior to those already mentioned in
the application. The actual construction and the quality of
construction, will be subject to the building regulations of the
local authorities, and subject to such other conditions as may be
imposed, by the Collector of Thane, Town Planning Authority and
the B.M.R.D.A and other Statutory Regulation.
4) ....
5) ....
6) ....
7) The said persons shall not transfer the exempted lands (with
or without buildings thereon) or any part thereof to any other
persons, except for the purpose of mortgage in favour of any
financial institution, specified in Sub-section (1) of Section 19 of
the said Act, for raising finances for the purposes of construction
or any one of the tenements mentioned above. Breach of this
condition shall mean that the exemption granted under this
Order stands withdrawn.
8) ....
9) ....
10) The construction work under the scheme, will be further
subject to all other conditions incorporated in the Scheme of
Weaker Section Housing announced by the State, Government
on 2nd October, 1977 and subject to such other conditions as
may be imposed by the local authorities, Collector of Thane,
Town Planning Authorities and the B.M.R.D.A.
11) If at any time, the State Government is satisfied that there
is a breach of any of the condition mentioned in this Order, it
shall be competent for the State Government by order to
withdraw the exemption from the date specified in the Order:
7. Respondents contended before the High Court that the builder had violated the
conditions imposed in the order of exemption; that need of the Weaker Sections of the
society was not being attended to and a big racket had been formed by real estate
speculators to eliminate the economically weaker sections and persons genuinely in

need of housing accommodation and to make unauthorised and illegal profit out of
such transactions. They had also challenged the sanction of escalation following the
demand of the builder and alleged that the legislative purpose of according exemption
and even as contemplated in the original order of exemption have been departed from
in allowing escalation beyond reasonable limits. It had been further alleged that
applications from genuine persons belonging to the economically weaker sections have
been overlooked and persons not entitled to the benefit have been registered by the
builders and even allotted apartments and the builders are in collusion with racketeers.
8. We have already indicated that the High Court did not examine the factual aspects
involved in the dispute when it dismissed the writ petition but proceeded to lay down
the guidelines. The respondents have alleged that their claims for allotment of
premises have been overlooked though they came earlier in point of time. There is
also a serious dispute raised by them before us that the escalation permitted by the
State Government to the builder is excessive and not warranted.
9. Basic needs of man have traditionally been accepted to be three-food, clothing and
shelter. The right to life is guaranteed in any civilized society. That would take within
its sweep the right to food, the right to clothing, the right to decent environment and a
reasonable accommodation to live in. The difference between the need of an animal
and a human being for shelter has to be kept in view. For the animal it is the bare
protection of the body; for a human being it has to be a suitable accommodation which
would allow him to grow in every aspect - physical, mental and intellectual. The
Constitution aims at ensuring fuller development of every child. That would be possible
only if the child is in a proper home. It is not necessary that every citizen must be
ensured of living in a well- built comfortable house but a reasonable home particularly
for people in India can even be mud-built thatched house or a mud- built fire-proof
accommodation.
10. With the increase of population and the shift of the rural masses to urban areas
over the decades the ratio of poor people without houses in the urban areas has
rapidly increased. This is a feature which has become more perceptible after
independence. Apart from the fact that people in search of work move to urban
agglomerations, availability of amenities and living conveniences also attract people to
move from rural areas to cities. Industrialisation is equally responsible for
concentration of population around industries. These are feature which are mainly
responsible for increase in the homeless urban population, Millions of people today live
on the pavements of different cities of India and a greater number live animal like
existence in jhuggis.
11. The Planning Commission took note of this situation and was struck by the fact
that there was no corresponding rise in accommodation with the growth of population
and the shift of the rural people to the cities. The growing realisation of this disparity
led to the passing of the Act and acquisition of vacant sites for purposes of housing.
Considerable attention has been given in recent years to increasing accommodation
though whatever has been done is not at all adequate. The quick growth of urban
population
overshadows
all
attempts
of
increasing
accommodation.

Sections 20 and 21 of the Act vest power in the State Governments to exempt vacant
sites from vesting under the Act for purposes of being taken over if housing schemes
are undertaken by owners of vacant urban lands. Section21 specifically emphasises
upon weaker sections of the people. That term finds place in Article 46 of the
Constitution and Section 21 uses the same language. 'Weaker sections' have, however,
not been defined either in the Constitution or in the Act itself. An attempt was made in
the Constitution Assembly to provide a definition but was given up. Attempts have
thereafter been made from time to time to provide such definition but on account of
controversies which arise once the exercise is undertaken, there has been no success.
A suggestion for introducing economic criterion for explaining the term was made in
the approach to the Seventh Five Year Plan (1985-1990) brought out by the Planning
Commission and approved by the National Development Council and the Union
Government. A lot of controversy was raised in Parliament and the attempt, was
dropped. In the absence of a definition perhaps a proper guideline could be indicated
but no serious attention has been devoted to this aspect
12. Members of the Scheduled Castes and Scheduled Tribes have ordinarily been
accepted as belonging to the weaker section. Attempt to bring in the test of economic
means has often been tried but no guideline has been evolved. Undoubtedly, apart
from the members of the Scheduled Castes and Scheduled Tribes, there would be
millions of other citizens who would also belong to the weaker sections. The
Constitution maker intended all citizens of Indian belonging to the weaker sections to
be benefited when Article 46 was incorporated in the Constitution. Parliament in
adopting the same language in Section 21 of the Act also intended people of all weaker
sections to have the advantage. It is, therefore, appropriate that the Central
Government should come forward with an appropriate guideline to indicate who would
be included within weaker sections of the society.
13. In recent years on account of erosion of the value of the rupee, rampant
prevalence of black money and dearth of urban land, the value of such land has gone
up sky-high. It has become impossible for any member of the weaker sections to have
residential accommodation anywhere and much less in urban areas. Since a
reasonable residence is an indispensable necessity for fulfilling the Constitutional goal
in the matter of development of man and should be taken as included in 'life' in
Article 21, greater social control is called for and exemptions granted under
Sections 20 and 21 should have to be appropriately monitored to have the fullest
benefit of the beneficial legislation. We, therefore, command to the Central
Government to prescribe appropriate guidelines laying down the true scope of the
term 'weaker sections of the society' so that everyone charged with administering the
statute would find it convenient to implement the same.
14. Respondents who claim to belong to weaker sections of the society maintain that
they are entitled to allotment of 862 plus 558 flats. It is true that initially the claim
was for a smaller number but the number has gone up when further petitions were
filed before the High Court. There is, perhaps, some basis in the objection of the
builders as also the stand taken by the State Government before us that the
respondents' claim should undergo in depth scrutiny. We direct that the genuineness of

the claim should be scrutinised in accordance with the guidelines which shall now be
indicated but in the event of the claims being found tenable, the builders shall have a
direction to provide accommodation in terms of the scheme for those who are found to
be acceptable. To ensure implementation of this direction the builders are called upon
not to make any commitment or allotments for flats until the claims of the 1420
applicants are scrutinised and allotment of accommodation for such number of persons
as are found entitled is provided.
15. We shall now proceed to deal with the guidelines. The Government of Maharashtra
by the Resolution No. ULC-1090/3'422(D- XIII) in the Housing and Special Assistance
Department have laid down the guidelines. We shall refer to the preamble and some of
the provisions thereof. The preamble indicates:
Close and effective monitoring of the implementation of weaker sections housing
schemes sanctioned under Sections 20 and 21 of the Urban Land (Ceiling & Regulation)
Act, 1976, is one of the most important duties of the competent authorities who have
been entrusted with the task of implementing the Urban Land Ceiling Act, 1976, in the
nine urban agglomerations in Maharashtra, viz. Bombay, Pune, Thane, Ulhasnagar,
Kolhapur, Solapur, Sangli, Nasik and Nagpur. Competent authorities are required to
ensure that construction of flats for the weaker sections of the society on land exempted
under Sections 20 and 21 is completed within the time-frame stipulated in the exemption
order. They are also required to ensure that the terms and conditions of the exemption
order such as issue of advertisements, giving particulars of the schemes, sale of fiats at
the prices approved by government, sizes of flats, non-eligibility of persons who already
own a dwelling unit in the same urban agglomeration to purchase a flat from such
schemes, handing over of land affected by development plan, reservations to the
planning authority etc. are all complied with. Physical implementation of Weaker sections
housing schemes in Maharashtra is one of the important issues on the agenda at the
meetings of competent authorities convened by the Housing Department periodically.
General and special instructions regarding effective monitoring of implementation of the
housing schemes are given to competent authorities in such meetings. Government of
Maharashtra have carefully considered the importance attaching to close and effective
monitoring of the implementation of weaker sections housing schemes and is now
pleased to direct by way of codification of earlier instructions on the subject that
competent authorities should ensure that the following instructions are scrupulously
complied with....
16. After this preamble, 16 paragraphs in what has been named as the Code - and a
copy of this Code is appended to the judgment as annexure for convenience - indicate
the guidelines.
17. We are of the view that allotment shall be on the basis of 'one family - one flat'
and the family shall include husband, wife and dependent children. A family which has
one flat in any urban agglomeration within the State shall not be entitled to allotment
or acquisition by transfer of a flat under this Code.

18. Government nominees contemplated under the Code must belong to weaker
sections of the society and shall also be subjected to the rule of one family - one flat.
The number of Government nominees should not exceed 5% of the total
accommodation available in any scheme.
19. Every builder shall maintain a register of applicants chronologically registering
them on the basis of the date of receipt of the applications. The register should be upto-date and available for inspection by the authorities. As and when an application is
received by the builder an appropriate receipt acknowledging acceptance of such
application shall be issued to the applicant and in such receipt, the number in the
Application Register shall be clearly indicated. Simultaneously, a copy of the
application with its number shall be sent by the builder to the Committee for its
record.
20. As a working guideline we direct that a 'means test' for identifying 'weaker
sections of the society shall be adopted and for the present income of the family of the
applicant must not exceed Rs. 18,000/-(eighteen thousand) to come within the
meaning of the term to qualify for allotment The applicant shall be called upon to
satisfy the Committee about the limit of income and the present prescription of Rs.
18,000/- may be varied from time to time by the State Government taking into
consideration the fall of the value of the rupee, general improvement in the income of
the people now within the annual income limit or Rs. 18,000/- and other relevant
factors. It shall be open to the State Government to prescribe appropriate guideline in
the matter of identifying the 'weaker sections of the society'.
21. 'Competent authority' has been defined in Section 2(9) of the Act. From the Code
it appears that he is an officer subordinate to the Collector of the District so far as the
State of Maharashtra is concerned as an appeal is contemplated from his orders to the
Collector. The duties and responsibilities and powers vested in the competent authority
under the Code are wide and considerable. We are of the opinion (without in any way
casting any aspersion) that it would be difficult for the competent authority to exercise
efficiently and to the satisfaction of everyone the duties cast upon him under the Code.
In the matter of implementation of the scheme and with a view to providing
satisfactory execution thereof and fulfilling the laudable purpose stipulated under the
Act and undertaken by the scheme, it is necessary that there should be a committee in
respect of the schemes in every urban agglomeration for weaker sections sanctioned
under Sections 20 and 21of the Act for overseeing the implementation of every
scheme, particularly in the matter of due compliance of the conditions under which
exemption is granted, timely construction of the flats, appropriate advertisement as
contemplated, registration of the applications in response to advertisements in a
systematic manner, appropriate allotment of flats including priorities on the basis of
registration, ensuring legitimate charges only being demanded and monitoring strict
compliance to avoid underhand dealing or any unjust treatment. It should be handled
by the competent authority in a committee consisting of himself, a judicial officer not
below the rank of an Additional District Judge and a Government engineer not below
the rank of Superintending Engineer. In the committee, the judicial officer shall
function as the Chairman.

22. This Committee shall have powers to scrutinise all relevant documents and give
appropriate directions to the builders and applicants keeping the requirements of the
schemes and the Code in view. To the extent we have indicated the powers conferred
on the come tent authority in terms of the State Code shall stand vested in the
committee. The Bombay High Court shall take steps to ensure that in respect of
schemes in every agglomeration undertaken and which the State Government may in
future undertake, the services of an efficient judicial officer not below the rank of an
Additional District Judge on such terms as the State Government and the High Court
consider appropriate shall be made available for discharging the duties indicated
and/or as may be provided. We would like to impress upon every Committee that
fulfilment of the laudable purpose of the providing a home to the poor homeless
depends upon its commitment to the goal and every effort should be made by it to
ensure that the builder does not succeed in frustrating the purpose. The State
Government shall suitably modify its Code in the light of this judgment and recirculate
the same to all concerned within four weeks from today.
23. At present we have confined the directions to the State of Maharashtra. Liberty is
given to members of the weaker sections residing in other States, builders and the
respective State Governments to ask for extension of the Code with such modifications
as may be necessary for other parts of the country.

Equivalent
Citation: AIR2005SC3136,
2005
(3)
AWC
2685
(SC),
2005(5)BomCR553,
121(2005)DLT547(SC),
ILR2005(3)Kerala675,
[2005(4)JCR4(SC)],
JT2005(6)SC210,
2005(2)MPJR(SC)314,
2005(4)PLJR14,
2005(3)RCR(Criminal)801, (2005)5SCC733, [2005]Supp(1)SCR624, 2005(3)UC1450

IN THE SUPREME COURT OF INDIA

Writ Petition (C) No. 72 of 1998 with civil Appeal No. 3735 of 2005 [Arising out of SLP
(C) No. 21851/2003]
Decided On: 18.07.2005
Appellants: In Re: Noise Pollution - Implementation of the Laws for restricting
use of loudspeakers and high volume producing sound systems

WITH
Appellants: Forum, Prevention of Envn. and Sound Pollution
Vs.
Respondent: Union of India (UOI) and Anr.
Hon'ble
R.C. Lahoti, C.J. and Ashok Bhan, J.

Judges/Coram:

Counsels:
Raju Ramachandran, Additional Solicitor General (NP), Jitendra Sharma (AC), N.N.
Goswami, Rajiv Dutta, G.L. Sanghi, P.N. Mishra and R. Mohan, Sr. Advs.,Sandeep
Narain (AC), Anil Kumar Mittal, Anjali Jha, M.K.S. Menon, M.K. Michael, Indra
Sawhney, Meenakshi Arora, P. Parmeswaran, Anil Katiyar, A. Francis Julian, A.
Subhashini, D.S. Mahra, Ashok Bhan, Varuna Bhandari Gungnani, Vijay Panjwani, K.R.
Sasiprabhu (NP), Jagjit Singh Chhabra (NP), Sanjay V.S. Choudhury, Niraj Kumar, V.K.
Sidharthan, P.V.
Yogeswaran, S.
Ravi
Shankar, Yamunah
Nachiar and M.A.
chinnaswamy, Advs. for the appearing partie
Subject: Constitution
Subject: Environment
Catch Words
Mentioned IN
Relevant
Constitution of India - Article 21

Section:

Acts/Rules/Orders:
Constitution of India - Article 19, Constitution of India - Article 19(1), Constitution of
India - Article 19(1)A, Constitution of India - Article 19(10), Constitution of India Article 21, Constitution of India - Article 25, Constitution of India - Article
141, Constitution of India - Article 142; Noise Pollution Control and Regulation Rules,
1999 ;Air (Prevention and Control of Pollution) Act, 1981 - Section 2; Environment

(Protection) Act, 1986 - Section 2; Noise Abetment Act, 1960 - Section 2; Control on
Pollution Act, 1974 ;Noise and Statutory Nuisance Act, 1993 ;Noise Control Act,
1975 ;Noise Control (Miscellaneous Articles) Regulations, 1995;Noise Control (Motor
Vehicles and Motor Vehicle Accessories) Regulations, 1995 ;Noise Control
Ordinance ;Noise Pollution (Regulation and Control) Rules, 2000 - Rule 3; Indian Penal
Code 1860, (IPC) - Section 95, Indian Penal Code 1860, (IPC) - Section 268, Indian
Penal Code 1860, (IPC) - Section 290, Indian Penal Code 1860, (IPC) - Section
291; Code of Criminal Procedure, 1973 (CrPC) - Section 133; Factories Act, 1948 Section 89, Factories Act, 1948 - Section 90; Motor Vehicles Act, 1988 ;Central Motor
Vehicles Rules, 1989 - Rule 119, Central Motor Vehicles Rules, 1989 - Rules
120; Central Motor Vehicles (Amendment) Rules, 1999 ;Environment (Protection)
Rules, 1986 - Rule 89; Air (Prevention and Control of Pollution) (Amendment) Act,
1987 ;Explosive Rules, 1983 - Rule 87;Explosives Act, 1884 ;Madras Town Nuisances
Act, 1889
Cases
Referred:
Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi
and Ors., ; P.A. Jacob v. Superintendent of Police, Kottayam, ; Om Birangana Religious
Society v. State, ; Kirori Mal Bishambar`` Dayal v. The StateBhuban Ram and Ors. v.
Bibhuti Bhushan Biswas, ; Ivour Heyden v. State of Andhra Pradesh, 1984 Cri LJ
16(NOC) ; Rabin Mukherjee v. State of West Bengal, People United for better Living in
Calcutta v. State of West Bengal,; Burrabazar Fireworks Dealers Association v.
Commissioner of police, Calcutta; Appa Rao, M.S. v. Govt. of T.N. ,(1995) 1 LW 319
(Mad ; The Supreme Court in Church of God (Full Gospel) in India v. K.K.R. Majestic
Colony Welfare Assn; Charan Lal Sahu v. Union of India, ; M.C. Mehta v. Union of
IndiaMoulana Mufti Syed Md. Noorur Rehman Barkati v. State of West Bengal
Authorities
Chambers 20th Century Dictionary, Chambers 21st Century Dictionary
Citing

Referred:

Reference:

Discussed
7
Dissented
7

*Case
Note:
Constitution of India - Act 21--Noise Pollution--Use of loudspeakers and
public address systems in public places --Restrictions placed--Noise levels at
boundaries of public places not to exceed 10 dB (A) above the ambient noise
standards or 75 dB (A), whichever is lower--Use of such equipments totally
barred from 10 p.m. to 6 a.m. Noise Pollution (Regulation and Control) Rules,
2000--Rule 5 (3)--Penal Code, 1860--Sections. 268, 290 and 291--Air
(Prevention and Control of Pollution) Act, 1981--Section 2 (a) --Environment
(Protection) Act, 1986--Section 2 (c)-- Code of Criminal Procedure, 1973,
Section 133-- Central Motor Vehicles Rules, 1989, Rule. 119 and 120--Tort
Nuisance-Words and phrases - "noise", "noise pollution" --Definitions of.
Writ Petition 72/98 was filed by an engineer as a probono publico. He was

provoked into filing the petition by a newspaper report that published a news
of a 13 year old rape victim, whose cries for help went unheard due to the
blaring noise of music over loudspeaker in the neighbourhood. The victim set
herself ablaze and died the same evening. The main prayer was for a
direction to the authorities to rigorously enforce the existing, laws on noise
pollution in C.A. No. 3735 of 2005. The vires of the Central Government
amendment to the Noise Pollution Control and Regulation Rules, 1999 were
challenged as the State Governments were empowered to permit the use of
loudspeakers during night hours (between 10 p.m. and 12 p.m.). The High
Court of Kerala dismissed the petition. Feeling aggrieved the petition was
filed
by
special
leave.
Disposing the matter by giving very specific directions and laying down
guidelines
for
the
authority,
the
court;
Held:
Article 21 of the Constitution guarantees life and personal liberty to all
persons. It is well-settled by repeated pronouncements of this Court as also
the High Courts that right to life enshrined in Article 21 is not of mere
survival or existence. It guarantees a right of persons to life with human
dignity. Therein are included, all the aspects of life which go to make a
person's life meaningful, complete and worth living. The human life has its
charm and there is no reason why the life should not be enjoyed along with
all permissible pleasures. Anyone who wishes to live in peace, comfort and
quiet within his house has a right to prevent the noise as pollutant reaching
him. No one can claim a right to create noise even in his own premises which
would travel beyond his precincts and cause nuisance to neighbours or
others. Any noise which has the effect of materially interfering with the
ordinary comforts of life judged by the standard of a reasonable man is
nuisance. Noise is more than just a nuisance. It constitutes a real and
present danger to people's health. Day and night, at home, at work, and at
play, noise can produce serious physical and psychological stress. No one is
immune to this stress;. Though we seem to adjust to noise by ignoring it, the
ear, in fact, never closes and the body still responds-sometimes with extreme
tension, as to a strange sound in the night. It is a shadowy public enemy
whose growing menace has increased in the modern age of industrialization
and technological advancement. Noise has both auditory and non-auditory
effects depending upon the intensity and the duration of the noise level. It
affects sleep, hearing, communication, mental and physical health. It may
even lead to the madness of people. Noise can disturb our work, rest, sleep,
and communication. It can damage our hearing and evoke other
psychological, and possibly pathological reactions. However, because of
complexity, variability and the interaction of noise with other environmental
factors, the adverse health effects of noise do not lend themselves to a
straightforward
analysis.
The noise level at the boundary of the public place, where loudspeaker or
public address system or any other noise source is being used shall not
exceed to 10 dB (A) above the ambient noise standards for the area or 75 dB
(A) whichever is lower. No one shall beat a drum or tom-tom or blow a
trumpet or beat or sound any instrument or use any sound amplifier at night
(between 10.00 p.m. and 6 a.m.) except in public emergencies. The
peripheral noise level of privately owned sound system shall not exceed by
more than 5 dB(A) than the ambient air quality standard specified for the
area in which it is used, at the boundary of the private place. No horn should
be allowed to be used at night (between 10 p.m. and 6 a.m.) in residential

area

except

in

exceptional

circumstances.

Constitution of India--Articles 19 (1) (a), 21--Noise pollution --Aural

aggression --Increase in volume of speech with assistance of artificial
devices so as to compulsorily expose unwilling persons to hear noise raised
to unpleasant or obnoxious levels, is violative of the rights to peaceful,
comfortable and pollution free life--Right to speech implies right to silence,
not
to
listen
and
not
to
be
forced
to
listen.
Held:
Those who make noise often take shelter behind Article 19 (1)A pleading
freedom of speech and right to expression. Undoubtedly, the freedom of
speech and right to expression are fundamental rights but the rights are not
absolute. Nobody can claim a fundamental right to create noise by amplifying
the sound of his speech with the help of loudspeakers. While one has a right
to speech, others have a right to listen or decline to listen. Nobody can be
compelled to listen and nobody can claim that he has a right to make his
voice trespass into the ears or mind of others. Nobody can indulge into aural
aggression. If anyone increases his volume of speech and that too with the
assistance of artificial devices so as to compulsorily expose unwilling persons
to hear a noise raised to unpleasant or obnoxious levels then the person
speaking is violating the right of others to a peaceful, comfortable and
pollution-free life guaranteed by Article 21. Article 19 (1)A cannot be pressed
into service for defeating the fundamental right guaranteed by Article 21.
Free speech is not to be treated as a promise to everyone with opinions and
beliefs, to gather at any place and at any time and express their views in any
manner. The right is subordinate to peace and order. A person can decline to
read a publication, or switch off a radio or a television set. But, he cannot
prevent the sound from a loudspeaker reaching him. He could be forced to
hear what, he wishes not, to hear. That will be an invasion of his right to be
let alone, to hear what he wants to hear, or not to hear, what he does not
wish to hear. One may put his mind or hearing to his own uses, but not that
of another. No one has a right to trespass on the mind or ear of another and
commit auricular or visual aggression. A loudspeaker is mechanical device,
and it has no mind or thought process in it. Recognition of the right of speech
or expression is recognition accorded to a human faculty. A right belongs to
human personality, and not to a mechanical device. One may put his faculties
to reasonable uses. But, he cannot put his machines to any use he likes. He
cannot
use
his
machines
to
injure
others.
Constitution of India--Articles 21, 25--Noise Pollution--Ban on use of noise-Emitting fireworks between 10 p.m. and 6 a.m., even during religions
occasions--Held, does not violate religions rights--Secular nature of Indian
polity
examined
and
discussed.
Held:
Indian society is pluralistic. People of this great country belong to different
castes and communities, have belief in different religions and customs and
celebrate different festivals. We are tolerant for each other. There is unity in
diversity. If relaxation is allowed to one there will be no justification for not
permitting relaxation to others and if we do so the relaxation will become the
rule. It will be difficult to enforce the restriction. It is a judicially noticeable
fact that in advanced countries there is a move for collective celebration of
festivals. For example, in United States, on May Day, a show of fireworks is
arranged outside the city. People assemble in large numbers to witness such

show which is officially arranged by the State. Such example can be emulated
in our country. People belonging to that section of the society which wishes
to celebrate a festival or an occasion may be encouraged to organize such
event collectively and may have a show of fireworks away from the
residential locality. Such a move would save the people form the hazardous
effects of noise pollution caused by fireworks and at the same time bring the
people together and contribute in developing closeness, unity and
brotherhood. In our opinion the total restriction on bursting firecrackers
between 10 p.m. and 6 a.m. must continue without any relaxation in favour
of anyone. The Court by restricting the time of bursting the firecrackers has
not in any way violated the religious rights of any person as enshrined under
Article 25 of the Constitution. The festival of Diwali is mainly associated with
Pooja performed on the auspicious day and not with firecrackers. In no
religious text book it is written that Diwali has to be celebrated by bursting
crackers. Diwali is considered as a festival of lights not of noises. Shelter in
the name of religion cannot be sought for, for bursting firecrackers and that
too at odd hours. Another argument that has been put forward to remove the
restriction during festivals is that they are celebrated by most of the people
and that an inconvenience to a few should not become the reason for
restraining a greater lot. If at all the people feel it necessary to burst
firecrackers they can choose and go for such firecrackers which on being
burst emit colours or lights mainly and produce very little or no sound. Their
use can be permitted. The Department of Explosives can, while working out
formulae for firecrackers, also along side classify the crackers into two
categories that could be: (i) sound emitting crackers, and (b) colours/light
emitting
crackers.
Constitution
of
India--Article
21--Noise
Pollution--Restrictions
on
manufacture of fireworks--Can be relaxed in case of fireworks meant for
export--Explosives Rules, 1983--Environmental Protection, 1986 and Noise
Pollution
(Regulation
and
Control)
Rules,
2000.
Held:
Firecrackers for the purpose of export may be manufactured and bear higher
noise levels subject to the following conditions: (i) The manufacturer should
be permitted to do so only when he has an export order with him and not
otherwise; (ii) The noise levels for these firecrackers should conform to the
noise standards prescribed in the country to which they are intended to be
exported as per the export order; (iii) These firecrackers should have a
different colour packing, from those intended to be sold in India; (iv) The
firecrackers should have a clear print on then stating that they are not to be
sold in India. In Case these firecrackers are found being sold in Indian
territory, then the manufacturer and the dealer selling these goods should be
held liable. The Department of Explosives may divide the firecrackers into
two categories--(i) Sound emitting firecrackers, and (ii) Colour/light
emitting firecrackers. There shall be a complete ban on bursting sound
emitting firecrackers between 10 p.m. and 6 a.m. It is not necessary to
impose restrictions as to time on bursting of colour/light emitting
firecrackers. Every manufacturer shall on the box of each firecracker mention
details of its chemical contents and that it satisfies the requirement as laid
down by DOE. In case of a failure on the part of the manufacturer to mention
the details or in cases where the contents of the box do not match the
chemical formulae as stated on the box, the manufacturer may be held liable.
Subject
Category
LETTER PETITION AND PIL MATTER - NOISE POLLUTION : INDUSTRY, VEHICULAR

Referred

Notifications:

JUDGMENT
R.C. Lahoti, C.J.
1. These two matters before us raise certain issues of far- reaching implications in
day-to-day life of the people in India relatable to noise pollution vis-a-vis right to life
enshrined in Article 21 of the Constitution of India as interpreted in its wide sweep by
the constitutional courts of the country. Though a limited grievance was raised to
begin with but several interveners and interlocutory applications enhanced the scope
of hearing and the cases were heard in a very wide perspective centering around
Article 21 of the Constitution. Several associated and incidental issues have also been
gone into.
Facts in W.P.(C) No. 72/98
2. CWP No. 72/98 is filed by Shri Anil K. Mittal, an engineer by profession moving the
Court pro bono publico. The immediate provocation for filing the petition was that a 13
year old girl was a victim of rape (as reported in newspapers of January 3, 1998). Her
cries for help sunk and went unheard due to blaring noise of music over loudspeaker
in the neighbourhood. The victim girl, later in the evening, set herself ablaze and died
of 100% burn injuries. The petition complains of noise created by the use of the
loudspeakers being used in religious performances or singing bhajans and the like in
busy commercial localities on the days of weekly offs. Best quality hi-fi audio systems
are used. Open space, meant for use by the schools in the locality, is let out for use in
marriage functions and parties wherein merry making goes on with hi-fi amplifiers and
loudspeakers without any regard to timings. Modern residents of the locality organize
terrace parties for socializing and use high capacity stereo systems in abundance.
These are a few instances of noise pollution generated much to the chagrin of
students taking examinations who find it utterly difficult to concentrate on studies
before and during examinations. The noise polluters have no regard for the
inconvenience and discomfort of the people in the vicinity. Noise pollution has had its
victims in the past and continues to have victims today as well. The petitioner seeks to
invoke the writ jurisdiction of this Court so that there may not be victims of noise
pollution in future. The principal prayer is that the existing laws for restricting the use
of loudspeakers and other high volume noise producing audio-video systems, be
directed to be rigorously enforced.
Facts in C.A. No. 3735 of 2005 (Arising out of S.L.P.(C) No. 21851/03)
3. Leave granted.
4. The Government of India framed and published Noise Pollution Control and
Regulation Rules, 1999. On 11.10.2002 the Government of India brought in an
amendment in the Rules. The amendment empowered the State Government to
permit the use of loudspeaker or public address system during night hours (between
10 pm and 12 pm) on or during the cultural or religious occasions for a limited period
not exceeding 15 days. Vires of this amendment were put in issue by the appellant
submitting that the provision is not accompanied by any guidelines and is capable of
being misused to such an extent that the whole purpose behind enacting the Rules
itself may be defeated. The High Court of Kerala found the petition devoid of any merit
and directed the petition to be dismissed. Feeling aggrieved, this petition has been
filed by special leave.

5. The civil Appeal and, in particular, the writ petition raise issues of wide ranging
dimensions relating to noise pollution and the implications thereof. Taking cognizance
of the matters as public interest litigation, the Court vide its order dated 6.4.98,
directed the cause title of the petition filed by Shri Anil Kumar Mittal to be amended as
"In re. Noise Pollution-Implementation of the Laws for Restricting Voice of
Loudspeakers and High Volume Producing Sound Systems". The Court also appointed
Shri Jitender Sharma, Senior Advocate and Shri Pankaj Kalra, Advocate to appear
as Amicus Curiae. Both the learned counsel were present in the Court and accepted
the assignment. Unfortunately, Shri Pankaj Kalra, Advocate expired during the
pendency of the proceedings. Shri Sandeep Narain, Advocate has appeared in his
place and assisted the Court.
6. The Union of India and the Central Pollution Control Board have not opposed the
prayer made in the writ petition and the appeal and have rather supported the writ
petitioner. Valuable inputs have been provided by the Central Pollution Control Board
in the form of pleadings, authentic publications, research documents and other
papers. The Union of India, while not opposing the relief sought for by the petitioner,
has pointed out several practical difficulties in completely regulating and where
necessary, eliminating noise pollution.
7. Though, as we have already noted, the sweep of hearing in these matters has been
very wide, the principal thrust of the writ petitioner and the learned Amicushas been
directed towards noise created by firecrackers, loudspeakers used - by political
parties, at religious places and on religious and social occasions or festivals. Hindu
Bokta Jana Sabai, Tamil Nadu Fireworks and Amorces Manufacturers Association,
Universal Society Performance, All India Federation of Fireworks Association, Indian
Fireworks Manufacturers Association and some individuals have sought for
interventions. It is not necessary to notice the contents of the intervention
applications in detail. Suffice it to say that the reliefs sought for in the applications are
conflicting. Some of the interveners have sought for:(i) noise created by horns of engines, pressure horns in automobiles,
loudspeakers, denting painting of cars, particularly, in residential areas and
from unauthorized premises being prohibited;
(ii) use of loudspeakers in religious places such as temples, mosque, churches,
gurudwaras and other places being discontinued or at least regulated;
(iii) firecrackers burst during Diwali festival and on other occasions for fun or
merry making being prohibited completely, if the noise created exceeds certain
decibels and being so regulated as to prevent bursting during night hours.
Other set of interveners seeks such like reliefs:(i) granting exemption in favour of bursting of firecrackers on or during
festivals without regard to the limit of time as such bursting of firecrackers is
associated with the performance of ceremonies relating to religion or social
occasions;
(ii) laying down mechanism for regulating the very manufacturing of
firecrackers so that such firecrackers as unreasonably enhance noise pollution
may be kept away from entering the markets and playing into the hands of the
people.
8. It is obvious that during the course of the hearing the scope got enlarged and the
Court has been addressed on very many issues from very many angles.

9. Article 21 of the Constitution guarantees life and personal liberty to all persons. It is
well settled by repeated pronouncements of this Court as also the High Courts that
right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a
right of person to life with human dignity. Therein are included, all the aspects of life
which go to make a person's life meaningful, complete and worth living. The human
life has its charm and there is no reason why the life should not be enjoyed along with
all permissible pleasures. Anyone who wishes to live in peace, comfort and quiet
within his house has a right to prevent the noise as pollutant reaching him. No one
can claim a right to create noise even in his own premises which would travel beyond
his precincts and cause nuisance to neighbours or others. Any noise which has the
effect of materially interfering with the ordinary comforts of life judged by the
standard of a reasonable man is nuisance. How and when a nuisance created by noise
becomes actionable has to be answered by reference to its degree and the
surrounding circumstances including the place and the time.
10. Those who make noise often take shelter behind Article 19(1)A pleading freedom
of speech and right to expression. Undoubtedly, the freedom of speech and right to
expression are fundamental rights but the rights are not absolute. Nobody can claim a
fundamental right to create noise by amplifying the sound of his speech with the help
of loudspeakers. While one has a right to speech, others have a right to listen or
decline to listen. Nobody can be compelled to listen and nobody can claim that he has
a right to make his voice trespass into the ears or mind of others. Nobody can indulge
into aural aggression. If anyone increases his volume of speech and that too with the
assistance of artificial devices so as to compulsorily expose unwilling persons to hear a
noise raised to unpleasant or obnoxious levels then the person speaking is violating
the right of others to a peaceful, comfortable and pollution-free life guaranteed by
Article 21. Article 19cannot be pressed into service for defeating the fundamental right
guaranteed by Article 21. We need not further dwell on this aspect. Two decisions in
this regard delivered by High Courts have been brought to our notice wherein the right
to live in an atmosphere free from noise pollution has been upheld as the one
guaranteed by Article 21 of the Constitution. These decisions are Free Legal Aid Cell
Shri Sugan Chand Aggarwal alias Bhagatji v :Govt. of NCT of Delhi and Ors.,
AIR2001Delhi455 (D.B.) and P.A. Jacob v. : Superintendent of Police, Kottayam,
AIR1993Ker1. We have carefully gone through the reasoning adopted in the two
decisions and the principle of law laid down therein, in particular, the exposition of
Article 21 of the Constitution. We find ourselves in entire agreement therewith.
11. The present cases provide an opportunity for examining several questions, such as
what is noise? What are its adverse effects? Whether noise pollution runs in conflict
with the fundamental rights of the people? And what relief can be allowed by way of
directions issued in public interest?
I
Noise - what it is?
12. The word noise is derived from the Latin term "nausea". It has been defined as
"unwanted sound, a potential hazard to health and communication dumped into the
environment with regard to the adverse effect it may have on unwilling ears."
13. Noise is defined as unwanted sound. Sound which pleases the listeners is music
and that which causes pain and annoyance is noise. At times, what is music for some
can be noise for others.
14. Section 2 of the Air (Prevention and Control of Pollution) Act, 1981, includes noise
in the definition of 'air pollutant'.

15. Section 2 - "air pollutant" means any solid, liquid or gaseous substance including
noise present in the atmosphere in such concentration as may be or tend to be
injurious to human beings or other living creatures or plants or property or
environment.
16. According to Encyclopaedia Britannica : "In acoustics 'noise' is defined as 'any
undesired sound'."
17. According to Chambers 20th Century Dictionary, 'noise' means- sound especially of
loud, harsh or confused kind; a sound of any kind; an over loud or disturbing sound;
frequent or public talk.
18. In Chambers 21st Century Dictionary, the definition of noise has undergone a
change. Noise pollution stands carved out as a phrase separately from noise. The two
are defined as under :
"Noise - a sound; a harsh disagreeable sound, or such sound; a din. pollution - an
excessive or annoying degree of noise in a particular area, e.g. from traffic or aeroplane
engines."
19. "Pollution" is a noun derived from the verb "pollute". Section 2 of the Environment
(Protection) Act, 1986 defines "environmental pollution" to mean the presence in the
environment of any environmental pollutant. Section 2 of the said Act defines
"environmental pollutant" to mean any solid, liquid or gaseous substance present in
such concentration as may be, or tends to be injurious to environment.
20. Thus, the disturbance produced in our environment by the undesirable sound of
various kinds is called " noise pollution".
II
Noise as nuisance and health hazard
21. Noise is more than just a nuisance. It constitutes a real and present danger to
people's health. Day and night, at home, at work, and at play, noise can produce
serious physical and psychological stress. No one is immune to this stress. Though we
seem to adjust to noise by ignoring it, the ear, in fact, never closes and the body still
responds-sometimes with extreme tension, as to a strange sound in the night.
22. Noise is a type of atmospheric pollution. It is a shadowy public enemy whose
growing menace has increased in the modern age of industrialization and technological
advancement. Although a soft rhythmic sound in the form of music and dance
stimulates brain activities, removes boredom and fatigue, but its excessiveness may
prove detrimental to living things. Researches have proved that a loud noise during
peak marketing hours creates tiredness, irritation and impairs brain activities so as to
reduce thinking and working abilities. Noise pollution was previously confined to a few
special areas like factory or mill, but today it engulfs every nook and corner of the
globe, reaching its peak in urban areas. Industries, automobiles, rail engines,
aeroplanes, radios, loudspeakers, tape recorders, lottery ticket sellers, hawkers, pop
singers, etc., are the main ear contaminators of the city area and its market place.
The regular rattling of engines and intermittent blowing of horns emanating from the
caravan of automobiles do not allow us to have any respite from irritant noise even in
suburban zones.
23. In the modern days noise has become one of the major pollutants and it has
serious effects on human health. Effects of noise depend upon sound's pitch, its

frequency and time pattern and length of exposure. Noise has both auditory and nonauditory effects depending upon the intensity and the duration of the noise level. It
affects sleep, hearing, communication, mental and physical health. It may even lead
to the madness of people.
24. However, noises, which are melodious, whether natural or man-made, cannot
always be considered as factors leading to pollution.
25. Noise can disturb our work, rest, sleep, and communication. It can damage our
hearing and evoke other psychological, and possibly pathological reactions. However,
because of complexity, variability and the interaction of noise with other
environmental factors, the adverse health effects of noise do not lend themselves to a
straightforward analysis.
Hearing Loss
"Deafness, like poverty, stunts and deadens its victims."- says Helen Keller. Hearing
loss can be either temporary or permanent. Noise-induced temporary threshold
shift (NITTS) is a temporary loss of hearing acuity experienced after a relatively short
exposure to excessive noise. Pre-exposure hearing is recovered fairly rapidly after
cessation of the noise. Noise induced permanent threshold shift (NIPTS) is an
irreversible loss of hearing that is caused by prolonged noise exposure. Both kinds of
loss together with presbycusis, the permanent hearing impairment that is attributable
to the natural aging process, can be experienced simultaneously.
26. NIPTS occurs typically at high frequencies, usually with a maximum loss at around
4,000 Hz. It is now accepted that the risk of hearing loss is negligible at noise
exposure levels of less than 75 dB(A) Leq (8-hr). Based on national judgments
concerning acceptable risk, many countries have adopted industrial noise exposure
limits of 85 dB(A) +5 dB(A) in their regulations and recommended practices. [N.B.Hz. is abbreviation of Hertz which is the unit of frequency, equal to one cycle per
second. Hertz (Hz) is the name, by international agreement, for the number of
repetitions of similar pressure variations per second of time; this unit of frequency was
previously called "cycles per second" (cps or c/s)].
Interference with Communication
27. The interference of noise with speech communication is a process in which one of
two simultaneous sounds renders the other inaudible. An important aspect of
communication interference in occupational situations is that the failure of workers to
hear warning signals or shouts may lead to injury. In offices, schools and homes,
speech interference is a major source of annoyance.
Disturbance of sleep.
28. Noise intrusion can cause difficulty in falling asleep and can awaken people who
are asleep.
Annoyance
29. Noise annoyance may be defined as a feeling of displeasure evoked by noise. The
annoyance inducing capacity of a noise depends upon many of its physical
characteristics and variations of these with time. However, annoyance reactions are
sensitive to many non-acoustic factors of a social, psychological, or economic nature
and there are considerable differences in individual reactions to the same noise.

Effect on performance
30. Noise can change the state
decrease efficiency. Performance
not always degraded by noise.
vigilance, information gathering
sensitive to noise.

of alertness of an individual and may increase or

of tasks involving motor or monotonous activities is
At the other extreme, mental activities involving
and analytical processes appear to be particularly

Physiological Effects
31. It has been determined that noise has an explicit effect on the blood vessels,
especially the smaller ones known as pre-capillaries. Overall, noise makes these blood
vessels narrower. Noise causes the peripheral blood vessels in the toes, fingers, skin
and abdominal organs to constrict, thereby decreasing the amount of blood normally
supplied to these areas.
32. Possible clinical manifestations of stress concomitant with noise are : (i) galvanic
skin response, (ii) increased activity related to ulcer formation, (iii)changes in
intestinal motility, (iv)changes in skeletal muscle tension, (v) subjective response
irritability perception of loudness, (vi)increased sugar, cholesterol & adrenaline,
(vii)changes in heart rate, (viii)increased blood pressure, (ix) increased adrenal
hormones, (x)vasoconstriction. Not only might there be harmful consequences to
health during the state of alertness, but research also suggests effects may occur
when the body is unaware or asleep. (Source; NOISE EFFECTS HANDBOOK, A Desk
Reference to Health and Welfare Effects of Noise By Office of the Scientific Assistant,
Office of Noise Abatement and Control, U.S. Environmental Protection Agency, October
1979, Revised July 1981)
33. The investigations have revealed that the blood vessels which feed the brain,
dilate in the presence of noise. This is the reason why headaches result from listening
to persistent high noise.
34. Field studies have also been conducted on various other groups such as people
living near airports, and school children exposed to traffic noise, showing that there
may be some risk for these people. In addition, laboratory studies on animals and
humans have demonstrated a relationship between noise and high blood pressure.
Other studies have shown that noise can induce heart attacks.
35. Prolonged chronic noise can also produce stomach ulcers as it may reduce the flow
of gastric juice and change its acidity.
With what other stress effects can noise be associated?
36. Stress can be manifested in any number of ways, including headaches, irritability,
insomnia, digestive disorders, and psychological disorders. Workers who are exposed
to excessive noise frequently complain that noise just makes them tired.
37. Quite a few field studies have been done on workers in Europe, examining the
relationship between noise and illness. In these studies, noise has been related to the
following:
General morbidity (illness); Neuropsychological disturbances-Headaches, Fatigue,
Insomnia, Irritability, Neuroticism; Cardiovascular system disturbances-Hypertension,
Hypotension, cardiac disease; Digestive disorders-Ulcers, Colitis; Endocrine and
biochemical disorders;

Noise and the unborn.

38. There is ample evidence that environment has a role in shaping the physique,
behavior and function of animals, including men, from conception and not merely from
birth. The fetus is capable of perceiving sounds and responding to them by motor
activity and cardiac rate change Lestre W. Sontang, The Fels Research Institute.
(Quoted in Noise: A Health Problem, United States Environmental Protection Agency ,
Office of Noise Abatement and Control, Washington, D.C., August 1978.).
Special effects on unborn, children and human beings generally
39. The fetus is not fully protected from noise. Noise may threaten fetal development.
Noise has been linked to low birth weights. Levels of noise which do not interfere with
the perception of speech by adults may interfere significantly with the perception of
speech by children as well as with the acquisition of speech, language, and languagerelated skills. Because they are just learning, children have more difficulty in
understanding language in the presence of noise than adults do. Reading ability also
may be seriously impaired by noise. Apart from children, the noise pollution causes
several adverse effects on human beings generally. Some of these are: (i) hearing
loss, (ii) no auditory physiological response such as stress, arousal response,
cardiovascular effects etc.,(iii) communication interference, (iv) performance
interference, and (v) sleep disturbance and so on.
III
Sources of Noise Pollution.
40. Noise pollution like other pollutants is also a by-product of industrialization,
urbanization and modern civilization.
41. Broadly speaking, the noise pollution has two sources, i.e. industrial and nonindustrial. The industrial source includes the noise from various industries and big
machines working at a very high speed and high noise intensity. Non-industrial source
of noise includes the noise created by transport/vehicular traffic and the
neighbourhood noise generated by various noise pollution can also be divided into the
categories, namely, natural and manmade.
42. Most leading noise sources will fall into the following categories: road traffic,
aircraft, railroads, construction, industry, noise in buildings, and consumer products.
1. Road traffic noise
43. Noise from the motors and exhaust systems of large trucks provides the major
portion of highway noise impact, and provides a potential noise hazard to the driver as
well. In addition, noise from the interaction of tyres with the roadway is generated by
trucks, buses, and private autos.
44. In the city, the main sources of traffic noise are the motors and exhaust systems
of autos, smaller trucks, buses, and motorcycles. This type of noise can be augmented
by narrow streets and tall buildings, which produce a "canyon" in which traffic noise
reverberates.
2. Aircraft noise
45. Nowadays, the problem of low-flying military aircraft has added a new dimension
to community annoyance, as the nation seeks to improve its "nap-of-the-earth"

warfare capabilities. In addition, the issue of aircraft operations over national parks,
wilderness areas, and other areas previously unaffected by aircraft noise has claimed
national attention over recent years.
3. Noise from railroads
46. The noise from locomotive engines, horns and whistles, and switching and
shunting operations in rail yards can impact neighbouring communities and railroad
workers. For example, rail car retreads can produce a high-frequency, high-level
screech that can reach peak levels of 120 dB at a distance of 100 feet which translates
to levels as high as 138 or 140 dB at the railroad worker's ear.
4. Construction noise
47. The noise from construction of highways, city streets, and buildings is a major
contributor to the urban scene. Construction noise sources include pneumatic
hammers, air compressors, bulldozers, loaders, dump trucks (and their back-up
signals), and pavement breakers.
5. Noise in industry
48. Although industrial noise is one of the less prevalent community noise problems,
neighbours of noisy manufacturing plants can be disturbed by sources such as fans,
motors, and compressors mounted on the outside of buildings. Interior noise can also
be transmitted to the community through open windows and doors, and even through
building walls. These interior noise sources have significant impacts on industrial
workers, among whom noise- induced hearing loss is unfortunately common.
6. Noise in buildings
49. Apartment dwellers are often annoyed by noise in their homes, especially when
the building is not well designed and constructed. In this case, internal building noise
from plumbing, boilers, generators, air conditioners, and fans, can be audible and
annoying. Improperly insulated walls and ceilings can reveal the sound of amplified
music, voices, footfalls, and noisy activities from neighbouring units. External noise
from emergency vehicles, traffic, refuse collection, and other city noises can be a
problem for urban residents, especially when windows are open or insufficiently
glazed.
7. Noise from consumer products
50. Certain household equipment, such as vacuum cleaners and some kitchen
appliances have been and continue to be noisemakers, although their contribution to
the daily noise dose is usually not very large.
IV
Noise pollution in the special context of Fireworks.
51. Fireworks are used all over the world to celebrate special occasions. In India,
fireworks are burst on festivals like Dussehra, Diwali and on special occasions like
social gatherings, marriages, Independence day, Republic day, New year day, etc. In
other countries of the world, fireworks are generally burst either on the New Year day
or on the birthday of their respective countries. However, bursting of firecrackers is a
health hazard since it is responsible for both air pollution and noise pollution.

52. The use of Fireworks has led to air pollution in the form of noise and smoke. Their
excessive use has started to be a public hazard and violation of their fundamental
rights as enshrined in the Constitution of India.
53. It has been held in the case of "Om Birangana Religious Society vState, that
the "Freedom of speech and expression guaranteed under Article 19 of the
Constitution of India includes, by necessary implication, freedom not to listen and/or
to remain silent. A citizen has a right to leisure, right to sleep, right not to hear and
right to remain silent. He also has the right to read and speak with others". Because
of the tremendous sound and noise, the citizens cannot exercise all these fundamental
rights.
54. It has been seen that firecrackers noise is an impulsive noise and is hazardous.
Bursting of a firecracker near the ear can lead sometimes to non-recoverable hearing
loss.
55. Diwali is the most important festival of India. The bursting of firecrackers during
this period is a wide spread practice. The unpredictable, intermittent and impulsive
noise produced by bursting of crackers all around, turns the festival of lights into
cacophony of noise. People are unable to even sleep due to this excessive noise
pollution. Several people are injured due to the noise produced by firecrackers every
year.
56. Firecrackers not only increase the ambient noise level but also contribute
significantly in increasing the air pollution by means of toxic gases and particles due to
their blast wave resulting from a rapid release of energy.
57. In order to assess the situation of noise pollution caused by firecrackers at the
time of Diwali the Central Pollution Control Board (CPCB) has been conducting ambient
noise level monitoring during Diwali festival regularly at various locations in Delhi
since 1993, to find increased ambient noise level caused by intensive burning of
crackers. As in the past, the noise and air quality monitoring have been carried out in
the years 1999, 2000, 2001, and 2002. The noise monitoring locations have been
selected to cover almost all areas of Delhi.
58. An analysis of the Reports prepared in the years 1999, 2000, 2001, and 2002
reveals that the ambient noise level on Diwali day exceeded the limit at almost all the
places during these years. The noise level was higher during Diwali-2000 as compared
to the values recorded during Diwali festival in the years 1999, 2001, and 2002.
59. The percentage of violation in L.eq. noise level varied from 02 to 49% in the year
2002, 12 to 55% in the year 2001, 11 to 58% in the year 2000 and 22 to 47% in the
year 1999 with respect to the day time standards at all the areas. [N.B. - Equivalent
Continuous Sound Pressure Level, Leq is the level of that steady sound which over the
same interval of time, contains the same total energy (or dose) as the fluctuating
sound. Equivalent continuous sound level has gained widespread acceptance as a
scale for the measurement of long-term noise exposure.]
60. The ambient noise level conducted during the years 1999 to 2002 on Diwali
festival, exceeded the limit at all places in every year and the percentage of violation
varies from 2% to 58%.
61. Thus, the study does reveal that the noise levels that have been measured on all
these occasions have been more than the prescribed norms. This is a point of worry as
it has been discussed that noise pollution does tend to have adverse effects on a
person. Thus immediate steps in this direction need to be taken.

62. The problem of noise pollution due to firecrackers is not only limited to India.
Similar problems are being experienced in other countries as well. In fact in United
Kingdom, in Nottingham the "Be Safe Not Sorry" campaign was launched after the
post was inundated with letters from readers to the newspaper saying they were fed
up with the noise, nuisance and the distress that fireworks cause.
V
Methodology adopted in other countries for noise pollution
control.
63. Different countries of the World have enacted different legislations to control the
noise pollution. For Example, in England there is a Noise Abetment Act, 1960.
Section 2 of this Act provides that loudspeakers should not be operated between the
hours of 9:00 in the evening and 8:00 in the following morning for any purpose and at
any other time for purpose of advertisement and entertainment, trade or business.
Control on Pollution Act of 1974, contains provisions for controlling noise pollution and
it provides noise to be actionable must amount to nuisance in the ordinary legal
sense. Section 62 of the English Control of Pollution Act, 1974, operates as perfect
control for 'Street Noise'. This provision has been defined as a highway and any other
road, footway or square or court which is for the time being open to public. In Japan,
there is Anti Pollution Basic Law which helps to control the pollution including noise
pollution.
64. A few of the notable legislations may be mentioned illustratively.
Noise Act 1996- U.K.
65. This Act makes provision about noise emitted from dwellings at night; about the
forfeiture and confiscation of equipment used to make noise unlawfully; and for
connected purposes. The kind of complaint referred to is one made by any individual
present in a dwelling during night hours that excessive noise is being emitted from
another dwelling. "Night hours" means the period beginning with 11p.m. and ending
with 7 a.m. The Act provides for the service of a notice on the offender by the
prescribed officer if he thinks that the noise being emitted is more than the
permissible limits.
66. In cases where the noise level does not come down in spite of the notice being
served, the officer can seize such equipments which in his opinion are the source of
such noise.
Noise and Statutory Nuisance Act 1993
67. An Act to make provision for noise in a street to be a statutory nuisance; to make
provision with respect to the operation of loudspeakers in a street; to make provision
with respect to audible intruder alarms; to make provision for expenses incurred by
local authorities in abating, or preventing the recurrence of, a statutory nuisance to be
a charge on the premises to which they relate; and for connected purposes.
The US Noise Pollution and Abatement Act, 1970 is an important legislation for
regulating control and abatement of noise. Under this Law the environment protection
agency, acting through the office of Noise Abatement and Control, holds public
meetings in selected cities to compile information on noise pollution.
The Public Health And Welfare:- Chapter 65- Noise Control(US)

68. The Congress declares that it is the policy of the United States to promote an
environment for all Americans free from noise that jeopardizes their health or welfare.
To that end, it is the purpose of this chapter to establish a means for effective
coordination of Federal research and activities in noise control, to authorize the
establishment of Federal noise emission standards for products distributed in
commerce, and to provide information to the public respecting the noise emission and
noise reduction characteristics of such products.
The Act further provides for 1. Identification of major noise sources
2. Noise emission standards for products distributed in commerce
3. Labelling
4. Quiet communities, research, and public information
5. Development of low-noise-emission products
6. Motor carrier noise emission standards
Noise Regulation Law-Japan.
69. The purpose of this Law is to preserve living environment and contribute to
protection of the people's health by regulating noise generated by the operation of
factories and other types of work sites as well as construction work affecting a
considerable area, and by setting maximum permissible levels of motor vehicle noise.
70. The Prefectural Governor shall designate concentrated residential areas, school
and hospital zones, and other such areas in which it is deemed necessary to protect
the living environment of the residents from noise, as areas subject to the regulation
of noise produced by specified factories and specified construction work.
71. The Prefectural Governor, while designating the areas pursuant to Paragraph 1 of
the preceding Article, shall establish regulatory standards for specified hours and
zones of said areas within the scope of the standards set forth by the Director General
of the Environment Agency according to the necessary degree of noise control in
regard to specified factories for specified hours and zones.
72. Persons installing specific facilities are liable to report the same to the Prefectural
Governor within 30 days.
73. The Governor has the powers to order change in the outlay of the factory when
they do not confer to the noise regulations.
74. Any party who plans to undertake construction projects which involve specified
construction work in designated areas, shall file a report with the Prefectural Governor
no later than seven (7) days prior to the beginning of the said construction.
75. The Prefectural Governor shall be responsible for the monitoring of noise levels in
designated areas.
76. For the regulation on noise caused by announcement through the use of
loudspeakers and noise emitted during the night time operation of bars and

restaurants, local Government shall take measures necessary to protect the living
environment, including restrictions on operating hours, in accordance with the local
physical and social conditions.
77. The regulations also prescribe the permissible noise levels for the various areas,
as well as the time periods between which noise- emitting machines can be used.
Law of the People's Republic of China on Prevention and Control of Pollution
From Environmental Noise (adopted on October 29, 1996)
78. This Law is enacted for the purpose of preventing and controlling environmental
noise pollution, protecting and improving the living environment, ensuring human
health and promoting economic and social development.
79. For purposes of this Law, "environmental noise" means the sound that is emitted
in the course of industrial production, construction, transportation and social activities
and that impairs the living environment of the neighbourhood.
80. The competent administrative department for environmental protection under the
State Council shall, in accordance with the national standards for acoustic
environmental quality and the State's economic and technological conditions, fix
national limits for environmental noise emission.
81. Every project under construction, renovation or expansion must conform to the
regulations of the State governing environmental protection.
82. The industrial noise emitted to the living environment of the neighbourhood within
an urban area shall be kept within the limits set by the State on emission of
environmental noise within the boundary of an industrial enterprise.
83. The construction noise emitted to the living environment of the neighbourhood
within an urban area shall be kept within the limits set by the State on the emission of
environmental noise within the boundary of a construction site.
84. It is forbidden to manufacture, sell or import automobiles that emit noise beyond
the limits set on noise level.
85. All units and individuals are forbidden to use high-pitch loudspeakers in urban
areas where noise-sensitive structures are concentrated.
86. Any unit or individual suffering from the hazards of environmental noise pollution
shall have the right to demand the polluter to eliminate the hazards; if a loss has been
caused, it shall be compensated according to law.
"Noise emission" means emission of noise from the source to the living environment of
the neighbourhood.
"Noise-sensitive structures" means structures that require a quiet environment such
as hospitals, schools, government offices, research institutions and residential
buildings.
"Areas where noise-sensitive structures are concentrated" means such areas as
medical treatment areas, cultural, education and research districts and areas where
government offices or residential buildings constitute the main buildings.

"At night" means the period from 10:00 p.m. to 6:00 a.m.
Australia
87. In New South Wales (NSW) no single Government authority has the responsibility
or capacity to be able to minimise all forms of noise pollution. The State is excluded
from control of noise in a number of areas by commonwealth legislation. These include
aircraft noise, where noise limits could affect trade, and the setting standards for
noise emissions from new vehicles. In areas where the State does have powers to
control noise, the Environment Protection Authority (EPA) has an overall responsibility
for environmental noise (as distinct from occupational noise), under the Noise Control
Act 1975. The Act deals with the prevention, minimization and abatement of noise and
vibration and empowers the EPA, the Waterways Authority, local Government and the
police for these purposes.
88. The EPA controls noise from scheduled premises, those required by the Noise
Control Act to have a licence and noise associated with rail traffic and the construction
or upgrading of freeways and toll roads. The Police and local council are generally
responsible for neighbourhood noise issues and have authority to issue noise
abatement directions to control noise from premises and for noise from burglar
alarms. Local council have an essential role in minimising the effects of excessive
noise, particularly in their local residential areas, from smaller factories, nonscheduled premises and public places. The Waterways Authority has specific
responsibilities in relation to noise from vessels in navigable waters.
89. Under the provisions of the Noise Control Act 1975 in NSW the railway system is
classified as scheduled premises and as such the EPA has a regulatory role, and seeks
to achieve noise targets for rail operations throughout the State to minimise the
impact on local residents.
90. The EPA issues licences for the management of scheduled premises. When issuing
a licence the EPA sets initial noise limits that are achievable with the operation of plant
and equipment currently installed, operated and maintained effectively. To achieve
further improvements in noise exposure to residents, negotiations with the licensed
premises are carried out and can be incorporated in the licence as Pollution Reduction
Programs (PRPs). The EPA is currently working with industry to reduce noise levels
from major sources.
91. The Noise Control (Miscellaneous Articles) Regulation 1995 was introduced to
cover community noise issues not covered by previous legislation. It includes
limitations on burglar alarms for both residential and commercial premises. Changes
have been made to the night-time control of common domestic noise sources such as
power tools, air conditioners, amplified music and lawn mowers. Under the new
regulation, only one warning to the offender is required and the warning is valid for 28
days. If an offence is committed within this period a fine can be issued without further
warnings. The previous regulation warning was only active for 12 hours which meant it
was not very effective with repetitious offences typical in suburban areas.
92. The Noise Control (Motor Vehicles and Motor Vehicle Accessories) Regulation 1995
controls the noise of individual motor vehicles. It includes a provision to control noise
from a range of accessories including horns, alarms, refrigeration units and sound
systems. It also places responsibility to ensure compliance of repairs/modifications of
vehicles on the vehicle repairers.

93. In addition to the measures introduced to reduce the source and transmission of
noise, measures can be undertaken to noise proof buildings thereby reducing the
occupant exposure to noise.
Montgomery County Noise Control Ordinance
94. The Montgomery County Noise Control Ordinance allows for normal activities
during regular hours; however, it does attempt to eliminate interference from noise
when most of us want to rest and relax. It also seeks to control disturbing and
unhealthy levels of noise in general. Key provisions of the Noise Control Ordinance:
(i) Provide day/night sound level limits.
(ii) Establish "quiet hours."
(iii) Define sounds that constitute noise disturbances.
(iv) Establish a "nuisance provision" that prohibits certain noises at any time.
95. A 'noise disturbance' as defined by the Ordinance, is any sound that is unpleasant,
annoying, or loud; abnormal for the time or location; and prejudicial to health,
comfort, property, or the conduct of business. Under the Ordinance, it is unlawful to
create a noise disturbance anywhere during "quiet hours," including multi- family
buildings and townhouses. The "nuisance provision" prohibits some noise disturbances
anywhere at any time.
96. The Montgomery County Noise Control Ordinance promotes peace and quiet for
everyone by covering a wide variety of residential and business situations. The
Ordinance does not cover noise from aircraft and railroads or motor vehicles on public
roadways, as Federal and State Governments supersede local regulation. Also exempt
are emergency operations by public utilities.
97. Among other provisions, the Montgomery County Noise Control Ordinance makes
it illegal to:
(i) Operate, or allow to be operated, a radio, television, or other electronic
sound-producing device on public or private property if the sound exceeds 55
decibels at the receiving property line.
(ii) Create a noise disturbance during "quiet hours" in a residential zone or
multi-family structure.
(iii) Operate any equipment that exceeds the receiving property line sound
level limits.
(iv) Allow an animal or fowl to create a noise disturbance at any time.
(vi) Load or unload material during "quiet hours."
(vi) Create a noise disturbance across property lines during "quiet hours" by
operating power equipment mounted on a motor vehicle; for example,
refrigerated trucks or commercial vacuum cleaners.
(vii) Permit construction noise to exceed 75 decibels, with allowances for
higher decibel levels under an approved "Noise Suppression Plan."

VI
Statutory Laws in India
98. Not that the Legislature and the Executive in India are completely unmindful of the
menace of noise pollution. Laws have been enacted and the Rules have been framed
by the Executive for carrying on the purposes of the legislation. The real issue is with
the implementation of the laws. What is needed is the will to implement the laws. It
would be useful to have a brief resume of some of the laws which are already
available on the Statute Book. Treatment of the problem of noise pollution can be
dealt under the Law of Crimes and civil Law. civil law can be divided under two heads
(i) The Law of Torts and (ii) The General civil Law. The cases regarding noise have not
come before the law courts in large quantity. The reason behind this is that many
people in India did not consider noise as a sort of pollution and they are not very
much conscious about the evil consequences of noise pollution. The level of noise
pollution is relative and depends upon a person and a particular place. The law will not
take care of a super sensitive person but the standard is of an average and rational
human being in the society.
The Noise Pollution (Regulation and Control) Rules, 2000
99. In order to curb the growing problem of noise pollution, the Government of India
has enacted the Noise Pollution(Regulation and Control) Rules, 2000. Prior to the
enactment of these Rules noise pollution was not being dealt specifically by a
particular Act.
"Whereas the increasing ambient noise levels in public places from various sources,interalia, industrial activity, construction activity, generator sets, loudspeakers, public address
systems, music systems, vehicular horns and other mechanical devices, have deleterious
effects on human health and the psychological well being of the people; it is considered
necessary to regulate and control noise producing and generating sources with the
objective of maintaining the ambient air quality standard in respect of noise;"
100. The main provisions of the Noise Pollution Rules are as under:
1. The State Government may categorize the areas into industrial, commercial,
residential or silence areas/zones for the purpose of implementation of noise
standards for different areas.
2. The ambient air quality standards in respect of noise for different
areas/zones has been specified for in the Schedule annexed to the Rules.
3. The State Government shall take measures for abatement of noise including
noise emanating from vehicular movements and ensure that the existing noise
levels do not exceed the ambient air quality standards specified under these
Rules. 4. An area comprising not less than 100 meters around hospitals,
educational institutions and courts may be declared as silence area/zone for
the purpose of these Rules.
5. A loudspeaker or a public address system shall not be used except after
obtaining written permission from the authority and the same shall not be used
at night i.e. between 10.00 p.m. and 6.00 a.m.
6. A person found violating the provisions as to the maximum noise
permissible in any particular area shall be liable to be punished for it as per the
provisions of these Rules and any other law in force.

Indian Penal Code

101. Noise pollution can be dealt under Sections 268, 290 and 291 of the Indian Penal
Code, as a public nuisance. Under Section 268 of this Code, it is mentioned that 'A
person is guilty of a public nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to the public or the people in
general who dwell or occupy property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may have occasion to use
any public right.
102. A common nuisance is not excused on the ground that it causes some
convenience or advantage.'
103. Sections 290 and 291 of the Indian Penal Code deal with the punishment for
public nuisance.
Criminal Procedure Code
104. Under Section 133 of the Code of Criminal Procedure, 1973 the magistrate has
the power to make conditional order requiring the person causing nuisance to remove
such nuisance.
The Factories Act, 1948.
105. The Factories Act does not contain any specific provision for noise control.
However, under the Third Schedule [Sections 89 and 90 of the Act], 'noise induced
hearing loss', is mentioned as a modifiable disease. Under Section 89 of the Act, any
medical practitioner who detects any modifiable disease, including noise- induced
hearing loss, in a worker, has to report the case to the Chief Inspector of Factories,
along with all other relevant information. Failure to do so is a punishable offence.
106. Similarly, under the Model Rules, limits for noise exposure for work zone area has
been prescribed.
Motor Vehicles Act, 1988, and Rules framed thereunder
107. Rules 119 and 120 of the Central Motor Vehicles Rules, 1989, deal with reduction
of noise.
Rule 119. Horns
(1) On and after expiry of one year from the date of commencement of the
Central Motor Vehicles (Amendment) Rules, 1999, every motor vehicle
including construction equipment vehicle and agricultural tractor manufactured
shall be fitted with an electric horn or other devices conforming to the
requirements of IS: 1884?1992, specified by the Bureau of Indian Standards
for use by the driver of the vehicle and capable of giving audible and sufficient
warning of the approach or position of the vehicle:
Provided that on and from 1 st January, 2003, the horn installation shall be as per AIS014 specifications, as may be amended from time to time, till such time as
corresponding Bureau of Indian Standards specifications are notified.

(2) No motor vehicle shall be fitted with any multi-toned horn giving a succession of
different notes or with any other sound-producing device giving an unduly harsh,
shrill, loud or alarming noise.
Rule 120. Silencers
(1) Every motor vehicle including agricultural tractor shall be fitted with a
device (hereinafter referred to as a silencer) which by means of an expansion
chamber or otherwise reduces as far as practicable, the noise that would
otherwise be made by the escape of exhaust gages from the engine.
(2) Noise standards- Every motor vehicle shall be constructed and maintained
so as to conform to noise standards specified in Part E of the Schedule VI to
the Environment (Protection) Rules, 1986, when tested as per IS: 3028-1998,
as amended from time to time.
Law of Torts
108. Quietness and freedom from noise are indispensable to the full and free
enjoyment of a dwelling-house. No proprietor has an absolute right to create noises
upon his own land, because any right which the law gives is qualified by the condition
that it must not be exercised to the nuisance of his neighbours or of the public. Noise
will create an actionable nuisance only if it materially interferes with the ordinary
comfort of life, judged by ordinary, plain and simple notions, and having regard to the
locality; the question being one of degree in each case.
The Air (Prevention and Control of Pollution) Act, 1981
109. Noise was included in the definition of air pollutant in Air (Prevention and Control
of Pollution) Act in 1987. Thus, the provisions of the Air Act, became applicable in
respect of noise pollution, also.
The Environment (Protection) Act, 1986.
110. Although there is no specific provision to deal with noise pollution, the Act
confers powers on Government of India to take measures to deal with various types of
pollution including noise pollution.
Fireworks
111. The Explosives Act, 1884 regulates manufacture, possession, use, sale,
transport, import & export of explosives. Firecrackers are governed by this Statute.
Rule 87 of the Explosives Rule, 1983 prohibits manufacture of any explosive at any
place, except in factory or premises licensed under the Rules.
112. In India, there is no separate Act that regulates the manufacture, possession,
use, sale, manufacture and transactions in firecrackers. All this is regulated by The
Explosives Act, 1884. The Noise that is produced by these fireworks is regulated by
the Environmental Protection Act, 1986 and The Noise Pollution (Regulation and
Control) Rules, 2000.
VII
JUDICIAL OPINION IN INDIA

113. In Kirori Mal Bishambar Dayal v,The State accused/petitioner was convicted
and sentenced under Section 290 of Indian Penal Code, 1860 and was fined Rs. 50 for
causing noise and emitting smoke and vibrations by operating of heavy machinery in
the residential area. The order of the trial court was upheld by the District Magistrate
in appeal. The High Court of Punjab & Haryana also upheld the decision of the courts
below and dismissed the revision petition. In the case of Bhuban Ram and
Ors. v. ,Bibhuti Bhushan Biswas it was held that working of a paddy husking
machine at night causes nuisance by noise and the occupier was held liable to be
punished
under
Section 290 IPC.
In Ivour
Heyden v. State
of
Andhra
Pradesh 1984 Cr LJ 16 (NOC) , the High Court of Andhra Pradesh excused the act of
playing radio loudly on the ground that it was a trivial act. Careful reading of
Section 95 of IPC shows that only that harm is excused which is not expected to be
complained by the person of ordinary temper and sense.
114. In Rabin Mukherjee v: State of West Bengal AIR1985Cal222 the use of air
horns was prohibited by the court to prevent noise pollution. The Court observed:
"...it is found that the atmosphere and the environment is very much polluted from
indiscriminating noise emitted from different quarters and on research it was found that
persons who are staying near the Airport, are becoming victim of various ailments. Such
persons even become victim of mental disease. On such research it was also found that
workers in various factories even become deaf and hard of hearing. It was further found
on such research that as a result of this excessive noise pollution, people suffer from loss
of appetite, depression, mental restlessness and insomnia. People also suffer from
complain of excessive blood pressure and heart trouble. It is not necessary to go into the
question about direct effect of such noise pollution because of indiscriminate and illegal
use of such electric and air horn as it is an admitted position that the same is injurious to
health and amongst different causes of environmental pollution, sound pollution is one
which is of grave concern."
115. In the case of People United for better Living in Calcutta v: State of West
Bengal AIR1993Cal215 the Calcutta High Court observed:
"In a developing country there shall have to be developments, but that development
shall have to be in closest possible harmony with the environment, as otherwise there
would be development but no environment, which would result in total devastation,
though, however, may not be felt in present but at some future point of time, but then it
would be too late in the day, however, to control and improve the environment. In fact,
there should be a proper balance between the protection of environment and the
development process. The society shall have to prosper, but not at the cost of the
environment and in similar vein, the environment shall have to be protected but not at
the cost of the development of the society and as such a balance has to be found out
and administrative actions ought to proceed accordingly."
116. In Burrabazar Fireworks Dealers Association v : Commissioner of Police,
Calcutta, AIR1998Cal121 it has been held
"Article 19 of the Constitution of India does not guarantee the fundamental right to carry
on trade or business which creates pollution or which takes away that communities
safety, health and peace....A citizen or people cannot be made a captive listener to hear
the tremendous sounds caused by bursting out from a noisy fireworks. It may give
pleasure to one or two persons who burst it but others have to be a captive listener
whose fundamental rights guaranteed under Article 19 and other provisions of the
Constitution are taken away, suspended and made meaningless....Under Article 19, read
with Article 21 of the Constitution of India, the citizens have a right of decent

environment and they have a right to live peacefully, right to sleep at night and to have
a right to leisure which are all necessary under Article 21 of the Constitution."(Headnote)
117. In Appa Rao, M.S. v. Govt. of T.N., (1995) 1 LW 319 (Mad), the Madras High
Court taking note of the serious health hazard and disturbance to public order and
tranquility caused by the uncontrolled noise pollution prevailing in the State, issued a
writ of mandamus directing State Government to impose strict conditions for issue of
license for the use of amplifiers and loudspeakers and for directing Director-General,
Police (Law and Order) to impose total ban on use of horn type loudspeakers and
amplifiers and air horns of automobiles.
118. In P.A. Jacob v. : the Superintendent of Police, AIR1993Ker1 , it was said "The right to speech implies, the right to silence. It implies freedom, not to listen, and
not to be forced to listen. The right comprehends freedom to be free from what one
desires to be free from. Free speech is not to be treated as a promise to everyone
with opinions and beliefs, to gather at any place and at any time and express their
views in any manner. The right is subordinate to peace and order. A person can decline
to read a publication, or switch off a radio or a television set. But, he cannot prevent
the sound from a loudspeaker reaching him. He could be forced to hear what he
wishes not to hear. That will be an invasion of his right to be let alone, to hear what he
wants to hear, or not to hear, what he does not wish to hear. One may put his mind or
hearing to his own uses, but not that of another. No one has a right to trespass on the
mind or ear of another and commit auricular or visual aggression. A loudspeaker is
mechanical device, and it has no mind or thought process in it. Recognition of the
right of speech or expression is recognition accorded to a human faculty. A right
belongs to human personality, and not to a mechanical device. One may put his
faculties to reasonable uses. But, he cannot put his machines to any use he likes. He
cannot use his machines to injure others. Intervention with a machine, is not
intervention with, or invasion of a human faculty or right. No mechanical device can be
upgraded to a human faculty. A computer or a robot cannot be conceded the right
under Article 19 (though they may be useful to man to express his faculties). No
more, a loudspeaker. The use of a loudspeaker may be incidental to the exercise of
the right. But, its use is not a matter of right, or part of the right".
119. In Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v: Govt.
of NCT of Delhi and Ors., AIR2001Delhi455 , it was said that "Pollution being
wrongful contamination of the environment which causes material injury to the right
of an individual, noise can well be regarded as a pollutant because it contaminates
environment, causes nuisance and affects the health of a person and would therefore,
offend Article 21, if it exceeds a reasonable limit."
120. The Supreme Court in Church of God (Full Gospel) in India v. : K.K.R.
Majestic Colony Welfare Assn., 2000CriLJ4022 held that the Court may issue
directions in respect of controlling noise pollution even if such noise was a direct result
of and was connected with religious activities. It was further held:"Undisputedly, no religion prescribes that prayers should be performed by
disturbing the peace of others nor does it preach that they should be through
voice amplifiers or beating of drums. In our view, in a civilized society in the
name of religion, activities which disturb old or infirm persons, students or
children having their sleep in the early hours or during daytime or other
persons carrying on other activities cannot be permitted. It should not be
forgotten that young babies in the neighbourhood are also entitled to enjoy
their natural right of sleeping in a peaceful atmosphere. A student preparing
for his examination is entitled to concentrate on his studies without there being
any unnecessary disturbance by the neighbours. Similarly, the old and the

infirm are entitled to enjoy reasonable quietness during their leisure hours
without there being any nuisance of noise pollution. Aged, sick, people afflicted
with psychic disturbances as well as children up to 6 years of age are
considered to be very sensible (sic sensitive) to noise. Their rights are also
required to be honoured.
"Under the Environment (Protection) Act, 1986, rules for noise-pollution level
are framed which prescribe permissible limits of noise in residential,
commercial, industrial areas or silence zone. The question is - whether the
appellant can be permitted to violate the said provisions and add to the noise
pollution. In our view, to claim such a right itself would be unjustifiable. In
these days, the problem of noise pollution has become more serious with the
increasing trend towards industrialisation, urbanization and modernisation and
is having many evil effects including danger to health. It may cause
interruption of sleep, affect communication, loss of efficiency, hearing loss or
deafness, high blood pressure, depression, irritability, fatigue, gastrointestinal
problems, allergy, distraction, mental stress and annoyance etc. This also
affects animals alike. The extent of damage depends upon the duration and
the intensity of noise. Sometimes it leads to serious law and order problem.
Further, in an organized society, rights are related with duties towards others
including neighbours.........
.....because of urbanization or industrialization the noise pollution may in some
area of a city/town might be exceeding permissible limits prescribed under the
Rules, but that would not be a ground for permitting others to increase the
same by beating of drums or by use of voice amplifiers, loudspeakers or by
such other musical instruments and, therefore, rules prescribing reasonable
restrictions including the Rules for the use of loudspeakers and voice amplifiers
framed under the Madras Town Nuisances Act, 1889 and also the Noise
Pollution (Regulation and Control) Rules, 2000 are required to be enforced."
121. In Charan Lal Sahu v:Union of India AIR1990SC1480 the Supreme Court
reiterated the need to create separate tribunals and asserted the need to appoint a
body of experts to advice the Government on environmental issues.
122. In M.C. Mehta v. Union of India (2004)1SCC571 this Court has emphasized
the need for creating environmental awareness amongst students through education.
123. We have referred to a few and not all available judgments. Suffice it to observe
that Indian Judicial opinion has been uniform in recognizing right to live in freedom
from noise pollution as a fundamental right protected by Article 21 of the Constitution
and noise pollution beyond permissible limits as an in-road on that right. We agree
with and record our approval of the view taken and the opinion expressed by the
several High Courts in the decisions referred to hereinabove.
VIII
Interim orders
124. During the course of the hearing of this case the Court had passed several
interim orders keeping in mind the importance of the issue.
125. The interim order dated 27/09/2001 deserves to be mentioned in particular,
which directed as under:
"(1) The Union Government, the Union Territories as well as all the State
Governments shall take steps to strictly comply with Notification No. G.S.R.

682(E) dated October 05, 1999 whereby the Environment (Protection) Rules,
1986 framed under the Environment (Protection) Act, 1986 were amended.
They shall in particular comply with amended Rule 89 of the said Rules, which
reads as follows:
"89. Noise standards for fire- crackers
A.(i) The manufacture, sale or use of firecrackers generating noise level
exceeding 125 dB(AI) or 145 dB( C)pk at 4 meters distance from the point of
bursting shall be prohibited.
(ii) For individual fire-cracker constituting the series (joined fire-crackers), the
above mentioned limit be reduced by 5 log 10(N) dB, where N = number of
crackers joined together."
(2) The use of fireworks or fire-crackers shall not be permitted except between
6.00 a.m. and 10.00 p.m. No firework or firecracker shall be allowed between
10.00 p.m. and 6.00 a.m.
(3) Firecrackers shall not be used at any time in silence zones, as defined in
S.O. 1046(E) issued on 22.11.2000 by the Ministry of Environment and
Forests. In the said Notification Silence Zone has been defined as: " Silence
Zone is an area comprising not less than 100 meters around hospitals,
educational institutions, courts, religious places or any other area which is
declared as such by the competent authority."
(4) The State Education Resource Centers in all the States and the Union
Territories as well as the management/principals of schools in all the States
and Union Territories shall take appropriate steps to educate students about
the ill effects of air and noise pollution and appraise them of directions (1) to
(3) above."
126. These interim directions were also directed to be given wide publicity both by
electronic and print media. It was said that Doordarshan and other television channels
shall give publicity to these directions, at least once every day during prime time,
during the fortnight before Dussehra and Diwali. The Ministry of Information and
Broadcasting was asked to bring these directions to the notice of the general public
through appropriate advertisements, issued in the newspapers. The All India Radio
was asked to broadcast these directions on prime time on FM and other frequencies
for information of the general public.
127. Due to the imposition of the restrictions on the bursting of firecrackers, several
Interim Applications came to be filed before the Court. The Court vide its interim order
dated 10.9.2003 stated:"Through the I.A.s filed in this Court the following two suggestions deserve
notice.
Firstly, it is submitted that certain local festivals and celebrations are
accompanied customarily by bursting of firecrackers which is at times at such
hours as is not permissible under the order of this Court dated 27.9.2001.
Secondly, it is pointed out that the industry of fireworks may face serious
difficulty, even partial closure, on account of the directions made by this Court.

We have grave doubts if the abovesaid considerations can come in the way of
the enforcement of fundamental rights guaranteed by the Constitution for the
citizens and people of India to live in peace and comfort, in an atmosphere free
from pollution of any kind, such as one caused by noise and foul/poisonous
gases. However still, without expressing any final opinion on the pleas
advanced, we allow the parties adversely affected the liberty to make
representation to their respective State Governments and the State
Governments may, in their turn, if satisfied of the genuineness of the
representation made, invite the attention of the Govt. of India, to the
suggestions made."
128. We are happy to note that the initial reluctance to abide by the interim directions
made by this Court as displayed by the subsequent interlocutory applications soon
gave way to compliance. By and large, the interim directions made by the Court were
observed in compliance. Police and civil administration remained alert during Diwali
Festival to see that the directions made by the Court were complied with. Residents
Welfare Associations and school children gave a very encouraging response who
voluntarily desisted from bursting firecrackers in prohibited hours of night and also
from bursting such firecrackers as produce high level noise.
IX
Difficulty in implementation of noise pollution control
methodology in India.
129. India has passed through the stage of being characterised as a developing
country and is ready to enter and stand in the line of developed countries. Yet, the
issue of noise pollution in India has not been taken so far with that seriousness as it
ought to have been. Firstly, as we have stated earlier, there is a lack of will on the part
of the Executive to implement the laws. This has contributed to lack of infrastructure
essential for attaining the enforcement of laws. Secondly, there is lack of requisite
awareness on the part of the citizens. The deleterious effects of noise pollution are not
well known to the people and are not immediately perceptible. People generally accept
noise pollution as a part of life, a necessary consequence of progress and prosperity.
130. The problems that are being faced in controlling noise pollution are:1. The Statutes and the Rules framed thereunder are not comprehensive
enough so as to deal with all the problems and issues related to noise
pollution. This impression of ours stands reaffirmed on a comparative reading
of legislation in India with those in other countries of the world to which we
have referred to briefly earlier in this judgment.
2. The authorities responsible for implementing the laws are not yet fully
identified. Those which have been designated, do not seem to be specialised in
the task of regulating noise pollution. There is dearth of necessary personnel
technically qualified to act effectively. What is needed is a combination of
technically qualified and administratively competent personnel with the
requisite desire and dedication for implementation of the laws.
3. There is lack of proper gadgets and equipments and other infrastructure
such as labs for measuring the noise levels. Due to the shortage of the
instruments needed for the purpose of measuring sound, the policemen who
are on the job usually end up measuring sound with their ears itself and not
with the use of technical instruments.

X
Firecrackers.
131. In the context of firecrackers in particular, several questions do arise for which
answers shall have to be found. What should be the maximum permissible sound level
for firecrackers? What should be the method of checking whether a particular
firecracker shall emit sound which shall be within permissible limits? Which authority
shall be conferred with the responsibility for ensuring the effective implementation of
these noise levels? What should be the time limit during which the bursting of
firecrackers should be allowed? Should there be any relaxation in the hours fixed for
bursting firecrackers during festivals? Should the Environment (Protection) Rules,
1986, be amended in such a way that the firecrackers manufactured for export in
other countries are exempted from the Indian noise standards?
What is the Maximum sound level that should be permissible for firecrackers?
132. At present the maximum permissible sound level for firecrackers as per the noise
standard is provided by Item 89, Sch. I, Table 1.5 of the Environment (Protection)
Rules, 1986:
"89. Noise Standard for Fire- crackers
A. (i) The manufacture, sale or use of fire- crackers generating noise level
exceeding 125 dB(AI) or 145dB(C)pk at 4 meters distance from the point of
bursting shall be prohibited.
(ii) For individual firecrackers constituting the series (joined fire- crackers), the
above mentioned limit be reduced by 5 log 10 (N)dB, where N= Number of
crackers joined together."
133. The learned amicus curiae had on 17th September 2001, filed certain suggestions
for issuance of directions for the consideration of this Court. In it he had suggested
that the maximum noise level of firecrackers could be fixed at 65 dB(A). It is
submitted that the limit of emission of noise prescribed in the Rules is too liberal and
errs on higher side.
134. It is suggested that the manufacturers of Firecrackers or those dealing with them
should ensure that only such crackers are produced and marketed which do not emit
noise of more than 65 dB(A).
135. The Government of India had not accepted the above suggestion of the learned
Amicus. The government replied to it in the following words.
"Sound level of 65 dB(A) for firecrackers is too low a level to be prescribed. The noise
levels prescribed in GSR 682 (E) dated 5TH October, 1999, have been evolved by a
technical committee and need to be complied with."
136. The Fire workers industry also submitted an application to the Union Minister of
Environment and Forest at a meeting convened in New Delhi on 15/04/2004, pleading
justification for the increase proposed in the prescribed firecrackers noise standards
from 125 dB(AI) to 135 db(AI) and from 145 dB(c)p k to 155(C)pk.
137. In an Article on 'Firecracker Noise, a Hazard- A review of its Standards', by, Dr.
S.P. Singhal, published in MAPAN- Journal of Metrology Society of India, Vol. 17, No. 3,
2002; pp. 101-117, Dr. Singhal has stated:

"UK and many other European Economic Commission (EEC) countries have
adopted an exposure limit of 140dB(lin) peak sound pressure level for
impulsive or cracker noise for a maximum exposure of 100 impulses per day.
European Standardization Committee CEN/TC/212 WG3 is also working to setup standards on fireworks. Some of the countries have desired the limit to be
set at 112dB(AI) and, several others have wanted it to be set at 125 dB(AI) or
even at 126-127 dB(AI) at the testing distance, with the peak sound pressure
level to be 20dB higher than these limits. It has fixed a noise level of
120dB(AI) measured at the testing distance on an ad hoc basis for category 2
fireworks.
Canada has adopted the damage risk criterion of 140dBA peak sound pressure
level at a distance of 5m from the point of explosion of the cracker. It is
applicable in all categories of fireworks unless otherwise specified."
Keeping all these submissions in mind, it does seem that the present noise standards
as prescribed in India by the Government of India are correct and do not need to be
altered at the moment. However, if the Government is of the opinion that this sound
level needs to be increased or reduced at a later date it is free to do so.
Should a firecracker be tested on the basis of sound level or on the basis of
chemical compositions so as to check, does the firecracker correspond with
the prescribed rules?
For an effective implementation of noise pollution prevention programme, it is
essential that such a method be devised whose enforcement shall not be problematic.
A rule should be so designed, that it is possible for all concerned to be able to
implement it, and thus it is not violated by anyone due to some kind of supervening
impossibility. Almost all the parties concerned have expressed a discontent about the
present system of enforcement of noise level pertaining to firecrackers. Lack of
infrastructure on account of noise measuring devices, high cost of such devices, low
noise levels prescribed, expensive rates for getting samples tested, long time taken by
the testing laboratories are a few of the difficulties that have been cited in the
enforcement of the noise standards.
138. The Department of Explosives has filed two affidavits before the Court, the first
on 1.4.2003 and the second on 16.2.2004, besides a joint affidavit which was filed by
the Ministry of Environment and Forest on behalf of the Union of India on 29.8.2003.
139. In the aforesaid Affidavits, the stand taken by the Department of Explosives
before the Court is:
(i) that "the firecrackers noise standard prescribed under the Environment
(Protection) Rules, 1986 requires costly instruments, wide infrastructure and
special expertise in the fields of acoustic science." (para-8 of Affidavit dated
1.4.2003)
(ii) that "the Department is not prepared in terms of manpower equipments
and infrastructure for implementation of the standard which is based on
measurement of noise level" (para-9 of Affidavit dated 1.4.2003)
(iii) that "the Department of Explosives is of the opinion that the noise level of
firecrackers can be efficiently controlled by specifying the size, shape,
composition and quantity of chemicals in the fireworks, which are the prime

factors that determine the noise level which entails a lot of R & D work. The
maximum permissible size of firecrackers and the maximum possible weight of
the chemicals for each variety would be mentioned in the list of authorized
explosives appended to the Explosives Rules consequent upon amendment of
the Explosives Rules."(para-15 of Affidavit dated 1.4.2003.)
(iv) that "the department is already publishing one authorized List of
Explosives, which is updated periodically as and when new items of explosives
are approved by the Department. The specification for the approved varieties
are prescribed in the said Authorised List, in terms of permissible size,
permissible composition of chemicals, mass of charge and other such physical
and chemical properties. The items which are not listed in the authorized list
cannot be manufactured, stored, transported or sold as per various provisions
of the Explosives Rules. Anybody proposing to manufacture a new variety of
fireworks shall apply to the Chief Controller of Explosives, Nagpur along with
detailed drawings, samples and prescribed fee for testing and approval. Noise
regulations for firecrackers can be implemented effectively through the
Authorised List in four phases:
(i) The permissible sound level of 125 dB(AI) notified under the Rules is taken
as the guideline for purpose of implementation by the Department of
Explosives. (ii) To achieve this, the Department can experiment with various
sizes, chemicals and compositions in order to devise the optimal set of factors
for each variety, to result in the desired noise level.
(iii) This set of factors or parameters for each variety of firecrackers will then
be notified under the Authorized List of Explosives under the Explosives Rules,
1983.
(iv) Any violation from the authorized List exceeding the permitted size,
permitted chemical content and chemical composition will attract legal
action."( para-16 of affidavit dated 1.4.2003).
140. In the Affidavit filed on 16.2.2004, the Chief Controller of Explosives stated:(1) That since the role of the Department of Explosives is mainly
administration and enforcement of the Explosives Rules 1983 and the status of
the Department is statutory in nature hence the Department of Explosives had
already taken up the matter and advised the fireworks manufacturers of
developing and producing environment friendly fireworks besides advocating to
promote, sale and use of only fireworks/crackers meeting the noise standards
prescribed under Environment (Protection) Rules, 1986 and amendments
thereof.
(2) That it is impractical for Government of India to fix norms regarding
chemical composition and the size of the firecrackers. It is the duty and
responsibility of the manufacturer to control size and composition of
firecrackers to comply with the noise limits prescribed under the Environment
(Protection) Rules, 1986.
(3) That it is impractical owing to the shortage of infrastructure available with
the Department of Explosives. The licensing for the manufacture of firecrackers
shall be as per the Explosives Act, 1884. The Power of the District Magistrate
for issuing licenses is to be retained as per the Rules.

(4) That the matter is now open and the manufacturers are at liberty to
manufacture, develop, promote and sell only those fireworks, which comply
with the noise limits prescribed under the Environment (Protection) Rules 1986
and Explosive Rules, 1983.
(5) That the Department of Explosives had already made mandatory for the
manufacturers of fireworks to mention the noise levels in decibel units on
firecrackers. The manufacturers are also required to declare on the packing of
the boxes that the noise levels conform to the standards prescribed under the
Environment (Protection) Rules, 1986. The Department had already included
the prescribed noise limits for firecrackers as additional conditions of licenses
issued under the Explosives Rules 1983. The authorities empowered to enforce
the Explosives Rules 1983 have been clearly defined under the said Rules.
Desirability of fixing chemical composition for the firecrackers
141. The learned Amicus Curiae has suggested that the Government of India should
fix the permissible chemical compositions for the firecrackers. He submitted - "To
control the noise levels from firecrackers, it was felt that apart from firecrackers
carrying on its label, the extent of its noise level emission, it may be appropriate if the
Government was to fix norms regarding chemical composition and the size of
firecrackers so as to confirm to the notified noise emission norms."
142. In UK as well, the method of determining the noise level of a firecracker, is by
fixing its chemical contents. The British Standard Institute has developed the British
Standard Fireworks, Part 2. Specification for Fireworks (BS 7114: Part 2) of 1988,
which prescribes the maximum permissible quantity of chemicals in a particular
firework. The Standards prescribe the various specifications with which the firework
has to comply for it to be manufactured or used in UK.
143. During the course of hearing, submissions in extenso were made on the
comparative merits and demerits of the two systems namely (i) measuring the noise
level of firecrackers in decibels and thereby securing the implementation of rules in
this regard, and (ii) securing the implementation of the rules by restricting and
prescribing the size of chemical content, chemical composition etc. of firecrackers. A
tabulated statement of such comparison has been placed on the record by the Tamil
Nadu Fireworks and Amorces Manufacturers Association.
144. Briefly stated, it is pointed out that if the firecrackers are allowed to be
manufactured in the manner in which they are being done now and the noise level is
left to be measured at the time of bursting of firecrackers, several difficulties in
implementation would arise, frustrating the regulation. Very expensive instruments
and gadgets are necessary to measure the sound level of firecrackers. A sound level
meter with required capabilities may cost around Rs.3 lacs or upwards. Factors like
wind velocity, temperature and humidity have a bearing on the measurement of noise
level. The gadgets for monitoring these factors shall also be required to be installed at
the testing field. Technically trained persons would be required to be posted at every
point of measuring. Testing the sound level of firecrackers at the point of bursting
would mean that the firecrackers have already reached the market. The persons to be
hauled up would be unwary retailers or users and it would be difficult to fix the
responsibility on the manufacturers or distributors. Difficulties of proof in the court of
law would also arise. The noise level in a firecracker is not stable. The same
firecracker may have a different noise level at the time of manufacturing and at the
time of use on account of climatic changes which would naturally occur by the lapse of
time and change of place. If the noise level was to be tested at the factory, the
firecracker would have already been manufactured. There would also be other

difficulties inasmuch as the clearance for marketability would depend on the

firecrackers satisfying the test carried out and at that point of time the firecrackers
have already been manufactured and shall have to be only destroyed if unsuccessful in
the test. That apart, the manufacturers are spread throughout the country. Some of
them are small scale industries. Either many a testing stations shall have to be
established or else the manufacturers would be required to go to centralized testing
stations carrying untested firecrackers. Both seem to be difficult situations.
145. On the other hand, prescribing of weight and composition of chemicals to be
used in manufacturing firecrackers would mean experiment or analytical tests being
carried out at any one station followed by publication of results and laid down
standards. Experimental checks would be enough to satisfy the authorities, if the
manufacturers were following the laid down standards as to size of firecrackers,
weight and percentile composition of chemicals used. This system would enable
identification of illegal firecrackers with comparatively more ease. Size and mass of
charge are two basic factors that determine the noise level of a firecracker. By
restricting these two prime factors, noise standard is achieved more effectively.
Though other factors like climatic conditions may affect the noise level to some extent,
but this system seems to us to be more dependable and logical, at least on the
materials made available before us.
146. On a comparison of the two systems, i.e. the present system of evaluating
firecrackers on the basis of noise levels, and the other where the firecrackers shall be
evaluated on the basis of their chemical composition, we feel that a change in the
method of evaluating the firecrackers shall surely be more beneficial. It shall reduce
the expenditure that shall otherwise have to be incurred on expensive instruments
that are necessary for the purpose of measuring sound. The firecrackers shall easily
be identifiable on the basis of their mass of charge, and the weight of the chemicals
contained in the firecrackers can also be easily measured. There shall not be too much
need of the personnel technically qualified for measuring sound, as what would then
be needed, would be to simply weigh the chemical constituents. It shall to a great
extent also be successful in putting an end to illegal fireworks, which come in bigger
sizes, as they now shall be more easily identifiable. In short, the implementation of
the rules relating to firecrackers shall be easier and carried out by the enforcing
authority more easily.
147. Keeping all these considerations and the various submissions made before this
Court in mind, we are of the opinion that a method as proposed by the
learned Amicus Curiae, of fixing the maximum chemical composition for each and
every firecracker, keeping in mind the limit of 125dB(AI) as the maximum permissible
limit, should be adopted. Every manufacturer should on the box of each firecracker
mention details of its chemical contents as well. In case of a failure on the part of the
manufacturer to mention these details or in cases where the contents of the box do
not match to the chemical formulae as stated on their box, the manufacturer shall be
liable for criminal prosecution.
148. The Department of Explosives should in public interest undertake necessary
research activity for the purpose and come out with the chemical formulae for each
firecracker. The Department shall at the time of giving the license for manufacturing a
particular firecracker shall specify the ratio as well as the maximum permissible weight
of every chemical used for the purpose.
Response during hearing
149. The civic awareness towards prevention of noise pollution in India is not as high
as is expected. It is regrettable to see that people indulge into making noise beyond

tolerable limits and create health hazard unmindful of consequences which are likely
to befall not only on others but also on themselves who create noise. The enactment
of laws has failed to create the requisite awareness. The best time to create
awareness is in the childhood. At middle- school level education and in the age of
adolescence the children should be taught in the schools, and in the homes as well by
the parents-- What are the consequences of noise pollution and how much health
hazard is created by bursting firecrackers?
150. An awareness towards protecting the environment from all sorts of pollutants
and destructive activities needs to be created in the minds at an younger age. Suitable
courses of study need to be devised by preparing text-books to be handed down to
the youth in its shaping age and whilst they are still in schools.
151. We are happy to note the way the people of the country and especially the
younger generation has responded to the interim order made from time to time by
this Court. News reports came to our notice wherein certain schools were stated to
have organized special lectures for the children pointing out the adverse effects of
noise pollution created by firecrackers just before the schools closed for Diwali festival.
The children decided not to burst firecrackers during Diwali Festival. Some volunteered
and took a vow to burst such firecrackers as do not create intolerable noise and
confining their such fun and frolic only to the hours of the day and not to do so during
the hours of night. Such a response from young boys and girls who are our future and
the educational institutions on whom lie the responsibility of shaping the future of this
country is most welcome.
152. Certain incidental and associated issues require to be dealt with and that we do
hereafter.
Fixing of time limit for bursting firecrackers -- Is relaxation desirable for
festivals?
153. The learned Amicus Curiae in his suggestions filed on 17th September 2001 had
suggested that the "Bursting of crackers should be prohibited during night time,
between 10.00 p.m. and 06.00 a.m.". The Court had agreed and directed, vide Order
dated 27.9.2001 -- "The use of fireworks or firecrackers shall not be permitted except
between 6.00 a.m. and 10.p.m. No fireworks or firecrackers shall be used between
10.00 p.m. and 6.00 a.m. The Government of India, has also expressed its opinion
that there should be no relaxation in the time limit for bursting firecrackers. Relaxation
of restrictions on bursting of crackers from 10.00 p.m. to 6.00 a.m. shall not be given
as it is night time. During the night time, people sleep and the high level of noise has
deleterious effects on the health and well being of the people."
154. Several interlocutory applications have been filed in this Court, wherein it was
pleaded that restriction on bursting of firecrackers in the night should be removed
during the Diwali Festival. Similar relaxation was demanded for other festivals. These
applications highlighted practices prevalent in some of the western countries wherein
such relaxation is allowed. We do not think that we will be justified in granting any
such relaxation. Indian society is pluralistic. People of this great country belong to
different castes and communities, have belief in different religions and customs and
celebrate different festivals. We are tolerant for each other. There is unity in diversity.
If relaxation is allowed to one there will be no justification for not permitting
relaxation to others and if we do so the relaxation will become the rule. It will be
difficult to enforce the restriction.

155. The Calcutta High Court in the case of Moulana Mufti Syed Md. Noorur
Rehman Barkati v. State of West BengalAIR1999Cal15 has expressed the
following view:
"The condition of the European countries, England and America cannot be
equated with the condition prevailing in the State of West Bengal, particularly
in the City of Calcutta....West Bengal has got its own peculiar problem and this
Court cannot decide a matter looking at Europe or America where the
amenities and the facilities are better. Density of population is very thin. Roads
are maintained in a perfect order. Traffic noise is insignificant. The use of horns
by vehicles is a thing which is prohibited there unless in case of emergency.
People are disciplined. Traffic moves in a disciplined manner. No horns are
there. The Ambient Noise Level in those countries are not at par with those
noise level in the City of Calcutta and/or in different parts of State of West
Bengal.
Accordingly, whatever may be decided by the European countries or America,
cannot have any direct bearing on the fixation of the sound level in the State
of West Bengal. In other civilized countries, cars move without making any
noise or sound. Condition of the roads is such that it cannot create any noise
beyond tolerance. People in those countries are not in the habit of creating
unnecessary sounds but in our country because of the gift of the technology
sound has become a source of pleasure for few people including some young
people. Use of unnecessary horn in vehicles has become a part and parcel of
Indian culture".
156. The picture of the entire country compared with the State of West Bengal does
not bear any material difference. Thus a rule, practice or provision as to relaxation in
Europe or America may not be of much help for us. They do not have many festivals
or celebrations round the year. Their festivals and events are only at national level and
one for all, unlike ours. Further, in the European countries or even in America an
insignificant percentage of the population indulges in bursting crackers. Very few
families, mainly Indian, in these countries celebrate the festival of Diwali and burst
crackers. Thus the noise pollution produced by this small use of firecrackers is not a
cause of worry in these countries.
157. The situation in India is almost the opposite. The streets are congested and the
density of population per square kilometer is one of the highest in the world.
Firecrackers are burst in almost all the houses, thus leading to pollution in the form of
noise and smoke- both on a large scale, making it a cause of worry.
158. It is a judicially noticeable fact that in advanced countries there is a move for
collective celebration of festivals. For example, in United States, on May Day, a show
of fireworks is arranged outside the city. People assemble in large numbers to witness
such show which is officially arranged by the State. Such example can be emulated in
our country. People belonging to that section of the society which wishes to celebrate
a festival or an occasion may be encouraged to organize such event collectively and
may have a show of fireworks away from the residential locality. Such a move would
save the people from the hazardous effects of noise pollution caused by fireworks and
at the same time bring the people together and contribute in developing closeness,
unity and brotherhood.
159. In our opinion, the total restriction on bursting firecrackers between 10 pm and 6
am must continue without any relaxation in favour of anyone.
Whether such restriction is violative of Article 25 of the Constitution ?

160. The affidavit filed by Mr. Mariappan, the Secretary of the Tamil Nadu Fireworks
and Amorces Manufacturers Association, alleges the restriction on bursting
firecrackers to amount to infringement of religious rights under Article 25. He says " therefore, the interference with the date and time of celebrating the festivals, amounts
to infringement of religious rights under Article 25 and the limitation under
Article 21 does not cause any health hazard."
161. The Court by restricting the time of bursting the firecrackers has not in any way
violated the religious rights of any person as enshrined under Article 25 of the
Constitution. The festival of Diwali is mainly associated with pooja performed on the
auspicious day and not with firecrackers. In no religious text book it is written that
Diwali has to be celebrated by bursting crackers. Diwali is considered as a festival of
lights, not of noises. Shelter in the name of religion cannot be sought for, for bursting
firecrackers and that too at odd hours.
162. Another argument that has been put forward to remove the restriction during
festivals is that they are celebrated by most of the people and that an inconvenience
to a few should not become the reason for restraining a greater lot.
163. In P.A. Jacob v. Superintendent of Police, Kottayam, AIR1993Ker1 , it has
been said "However wide a right is, it cannot be as wide, as to destroy similar or other
rights in others. Jefferson said: No one has a natural right to commit aggression on
the equal rights of another. J.S. Mill said: If all mankind minus one were of one
opinion, and if only one person was of contrary opinion, mankind would be no more
justified in silencing that one person, than he, if he had the power, would be justified
in silencing mankind."
164. If at all the people feel it necessary to burst firecrackers they can choose and go
for such firecrackers which on being burst emit colours or lights mainly and produce
very little or no sound. Their use can be permitted. The Department of Explosives can,
while working out formulae for firecrackers, also along side classify the crackers into
two categories that could be: (a) sound emitting crackers, and (b) colours/light
emitting crackers. A few examples of such colour emitting crackers are, snake tablets,
sparklers, pencils, hunters, chakri, colour rockets, flowerpots, parachutes, etc.
Category (b) firecrackers may not have restriction as to timings. Though, it would
need expert examination and opinion if colour emitting crackers also emit fumes and
gases which though not source of noise pollution yet would cause air pollution, equally
bad. Till such time the Department of Explosives makes any such classification there
shall be a total ban on bursting of firecrackers between 10 p.m. and 6 a.m.
Can an exception be carved out for firecrackers meant for export exclusively.
165. Should the Environment (Protection) Rules, 1986, be amended in such a way
that the firecrackers manufactured for export and use in other countries are exempted
from the Indian noise standards?
166. Mr. Mariappan, the Secretary of The Tamil Nadu Fireworks and Amorces
Manufactures' Association, had in his affidavit dated 8th February 2002, requested the
Court to remove the restriction on manufacturing fireworks meant for exporting only
and which are in excess of the sound levels prescribed for fireworks within the
country. It is submitted, "the Indian Standards on noise of firecrackers do not have
any relevance to firecrackers intended for export. But the order of the Hon'ble
Supreme Court prohibits manufacture of firecrackers generating noise level exceeding
125 dB(AI) or 145 dB(C)pk at 4 meters distance from the point of bursting. There is a
total restriction on the manufacture of fireworks and crackers without any

discrimination being made between firecrackers that are manufactured for use in India
and those for use in foreign countries. The trade having been globalised, Indian
firecrackers have to necessarily comply with foreign standards if they are to enter into
the international markets. The Department of Explosives is already having various
provisions laid down under the Explosives Act, 1884 and the Explosives Rules, 1983,
which govern the export of fireworks. Prior approval from the Department of
Explosives is imperative for every export of fireworks. therefore, the comprehensive
position now imposed on firecrackers should be modified exempting firecrackers that
are manufactured for use in foreign countries, from the purview of the Environment
(Protection) Act 1986 and the Rules framed thereunder."
167. The Court on the above-mentioned submission sought for the view of the
Department of Explosives. The Department has expressed the view that firecrackers
that are to be sold in foreign countries may be excluded from the purview of the noise
standards provided they conform to the rules for manufacturing the goods for export.
They also submitted - "The firecrackers manufactured and sold for export purpose
may be excluded from the purview of the firecrackers' noise standards provided they
follow the rules for manufacturing of goods for export. This will enable the
manufacturers to compete in the world market with the other suppliers of firecrackers.
The firecrackers manufactured for export shall have a different colour code and a clear
print indicating that they are not to be sold in India."
168. We are inclined to agree with the view of the Department of Explosives.
Firecrackers for the purpose of export may be manufactured and bear higher noise
levels subject to the following conditions: (i) The manufacturer should be permitted to
do so only when he has an export order with him and not otherwise; (ii) The noise
levels for these firecrackers should conform to the noise standards prescribed in the
country to which they are intended to be exported as per the export order; (iii) These
firecrackers should have a different colour packing, from those intended to be sold in
India; (iv) The firecrackers should have a clear print on them stating that they are not
to be sold in India. In case these firecrackers are found being sold in Indian territory,
then the manufacturer and the dealer selling these goods should be held liable.
How to check/control noise pollution
169. The need for checking noise pollution as highlighted by the petitioners and
several interveners deserves appreciation.
170. Need for specific legislation to control and prevent noise pollution still needs
some emphasis. Undoubtedly, some laws have been enacted. Yet, compared with the
legislation in developed countries India is still lagging behind in enacting adequate and
scientific legislations. We need to have one simple but specific and detailed legislation
dealing with several aspects referable to noise pollution and providing measures of
control therefore.
171. There is an equal need of developing mechanism and infrastructure for
enforcement of the prevalent laws. Those who are entrusted with the task of enforcing
laws directed towards controlling noise pollution, must be so trained as to acquire
expertise in the matter of fighting against noise pollution by taking preventive and
deterrent measures both. They need to be equipped with the requisite equipments
such as audio meters as would help them in detecting the level of noise pollution more
so when it crosses the permissible limits and the source thereof.
172. Above all, there is need for creating general awareness towards the hazardous
effects of noise pollution. Particularly, in our country the people generally lack
consciousness of the ill effects which noise pollution creates and how the society

including they themselves stand to benefit by preventing generation and emission of

noise pollution. The target area should be educational institutions and more
particularly schools. The young children of impressionable age should be motivated to
desist from playing with firecrackers, use of high sound producing equipments and
instruments on festivals, religious and social functions, family get- together and
celebrations etc. which cause noise pollution. Suitable chapters can be added into
text-books which teach civic sense to the children and teach them how to be good and
responsible citizen which would include learning by heart of various fundamental
duties and that would obviously include learning not to create noise pollution and to
prevent if generated by others. Holding of special talks and lectures can be organized
in the schools to highlight the menace of noise pollution and the role of the children in
preventing it. For these purposes the State must play its role by the support and
cooperation of non-government organizations (NGOs) can also be enlisted.
173. Similar awareness needs to be created in police and civil administration by
means of carrying out a special drive to make them understand the various measures
to curb the problems and the laws on the subject. Residents Welfare Associations
(RAWs), Service Clubs (such as Rotary International and Lions International) and
Societies engaged in preventing noise pollution as part of their projects need to be
encouraged and actively involved by the local administration. Festival and ceremonies
wherein the fireworks and crackers are customarily burst can be accompanied by
earmarking a place and time wherein and when all the people can come together and
witness or view a show of fireworks dispensing with the need of crackers being burst
in the residential areas and that too which is done without any regard to timings. The
manufacturers can be encouraged to make such fireworks as would display more the
colours rather than make noise.
174. Not only the use of loudspeakers and playing of hi-fi amplifier systems has to be
regulated even the playing of high sound instruments like drums, tom-toms,
trumpets, bugles and the like which create noise beyond tolerable limits need to be
regulated. The law enforcing agencies must be equipped with necessary instruments
and facilities out of which sound level meters conforming to Bureau of Indian
Standards (BIS) code are a bare necessity.
175. Preventive measures need to be directed more effectively at the source. To
illustrate, the horns which if fitted with the automobiles would create hawking sound
beyond permissible limits, should not be allowed to be manufactured or sold in the
market as once they are available they are likely to be used.
176. Loudspeakers and amplifiers or other equipments or gadgets which produce
offending noise once detected as violating the law, should be liable to be seized and
confiscated by making provision in the law in that behalf.
177. Prohibiting the sale of such firecrackers which create noise pollution by producing
noise beyond permissible limits is practically unmanageable. A better option certainly
is to prescribe the chemical contents and composition for each type of firecrackers to
effectively curb noise pollution. The Chief Controller of Explosives has also been
agreeable to take steps in this regard but has pointed out difficulties attributable to
shortage of personnel and non- availability of lab facilities and requisite equipments
for this purpose.
178. We hasten to add that during the course of the proceedings the parties have
been generally agreeable to solicit directions on the lines as indicated hereinabove.
There should be no difficulty in issuing directions and ensuring compliance to the
extent as indicated hereinabove. Wherever there are difficulties they have to be sorted
out in the larger public interest.

DIRECTIONS
179. It is hereby directed as under:I. Firecrackers
1. On a comparison of the two systems, i.e. the present system of evaluating
firecrackers on the basis of noise levels, and the other where the firecrackers
shall be evaluated on the basis of chemical composition, we feel that the latter
method is more practical and workable in Indian circumstances. It shall be
followed unless and until replaced by a better system.
2. The Department of Explosives (DOE) shall undertake necessary research
activity for the purpose and come out with the chemical formulae for each type
or category or class of firecrackers. The DOE shall specify the
proportion/composition as well as the maximum permissible weight of every
chemical used in manufacturing firecrackers.
3. The Department of Explosives may divide the firecrackers into two
categories- (i) Sound emitting firecrackers, and (ii) Colour/light emitting
firecrackers.
4. There shall be a complete ban on bursting sound emitting firecrackers
between 10 pm and 6 am. It is not necessary to impose restrictions as to time
on bursting of colour/light emitting firecrackers.
5. Every manufacturer shall on the box of each firecracker mention details of
its chemical contents and that it satisfies the requirement as laid down by
DOE. In case of a failure on the part of the manufacturer to mention the
details or in cases where the contents of the box do not match the chemical
formulae as stated on the box, the manufacturer may be held liable.
6. Firecrackers for the purpose of export may be manufactured bearing higher
noise levels subject to the following conditions: (i) The manufacturer should be
permitted to do so only when he has an export order with him and not
otherwise;(ii) The noise levels for these firecrackers should conform to the
noise standards prescribed in the country to which they are intended to be
exported as per the export order; (iii) These firecrackers should have a
different colour packing, from those intended to be sold in India; (iv) They
must carry a declaration printed thereon something like 'not for sale in India'
or 'only for export to country AB' and so on.
II. Loudspeakers
1. The noise level at the boundary of the public place, where loudspeaker or
public address system or any other noise source is being used shall not exceed
10 dB(A) above the ambient noise standards for the area or 75 dB(A)
whichever is lower.
2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound
any instrument or use any sound amplifier at night (between 10. 00 p.m. and
6.a.m.) except in public emergencies. 3. The peripheral noise level of privately
owned sound system shall not exceed by more than 5 dB(A) than the ambient
air quality standard specified for the area in which it is used, at the boundary
of the private place.

III. Vehicular Noise

No horn should be allowed to be used at night (between 10 p.m. and 6 a.m.) in
residential areas except in exceptional circumstances.
IV. Awareness
1. There is a need for creating general awareness towards the hazardous
effects of noise pollution. Suitable chapters may be added in the text-books
which teach civic sense to the children and youth at the initial/early level of
education. Special talks and lectures be organised in the schools to highlight
the menace of noise pollution and the role of the children and younger
generation in preventing it. Police and civic administration should be trained to
understand the various methods to curb the problem and also the laws on the
subject.
2. The State must play an active role in this process. Residents Welfare
Associations, Service Clubs and Societies engaged in preventing noise pollution
as a part of their projects need to be encouraged and actively involved by the
local administration.
3. Special public awareness campaigns in anticipation of festivals, events and
ceremonial occasions whereat firecrackers are likely to be used, need to be
carried out.
The abovesaid guidelines are issued in exercise of power conferred on this Court under
Articles 141 and 142 of the Constitution of India. These would remain in force until
modified by this Court or superseded by an appropriate legislation.
V Generally
1. The States shall make provision for seizure and confiscation of
loudspeakers, amplifiers and such other equipments as are found to be
creating noise beyond the permissible limits.
2. Rule 3 of the Noise Pollution (Regulation and Control) Rules, 2000 makes
provision for specifying ambient air quality standards in respect of noise for
different areas/zones, categorization of the areas for the purpose of
implementation of noise standards, authorizing the authorities for enforcement
and achievement of laid down standards. The Central Government/State
Governments shall take steps for laying down such standards and notifying the
authorities where it has not already been done.
180. Though, the matters are closed in consonance with the directions as above
issued in public interest, there will be liberty of seeking further directions as and when
required and, in particular, in the event of any difficulty arising in implementing the
directions.
181. The CWP, CA and all pending IAs be treated as disposed of.
182. Before parting, we would like to place on record our deep appreciation of
valuable assistance rendered by Shri Jitendra Sharma, Senior Advocate assisted by
Shri Sandeep Narain, Advocate (and earlier by late Shri Pankaj Kalra, Advocate) who
highlighted several relevant aspects of the issues before us and also helped in
formulating the guidelines issued as above.

Equivalent Citation: (SCSuppl)2015(1)CHN224, 2015(5)CTC562, 2015(5)FLT208,

2015(5)FLT1,
2015-3-LW744,
2014(4)RCR(Civil)1006,
2014(12)SCALE580,
(2015)4SCC801, 2014 (10) SCJ 205, (2015)3WBLR(SC)466
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10024 of 2014 (Arising out of S.L.P. (C) No. 24317 of 2013)
Decided On: 07.11.2014
Appellants: Balwant Singh
Vs.
Respondent: Commissioner of Police
Hon'ble
F.M. Ibrahim Kalifulla and Abhay Manohar Sapre, JJ.

Judges/Coram:

Counsels:
For Appellant/Petitioner/Plaintiff: V. Sivasubramanian and Mohan Kumar, Advs.
For Respondents/Defendant: Rajeev Kumar Singh and Ruchi Kohli, Advs.
Subject: Constitution
Subject: Tort
Catch Words
Mentioned IN
Relevant
Constitution of India - Article 141; Constitution of India - Article 142

Section:

Acts/Rules/Orders:
Human Rights Commission Act, 2005; Noise Pollution (Regulation and Control) Rules,
2000 - Rule 3; Constitution of India - Article 19(1), Constitution of India - Article
21, Constitution of India - Article 25, Constitution of India - Article 141, Constitution of
India - Article 142, Constitution of India - Article 226
Cases
Referred:
Noise Pollution (V), In Re-Implementation of the Laws for restricting use of
loudspeakers and high volume producing sound systems (2005) 5 SCC 733; Ramlila
Maidan Incident In Re. : (2012) 5 SCC 1; Firm Kaluram Sitaram v. The Dominion of
India: AIR 1954 Bombay 50
Prior
History:
From the Judgment and Order dated 21.05.2013 of the High Court of Judicature for
Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Special Appeal (Writ) No. 378 of 2013

Disposition:
Appeal Partly Allowed
Citing

Reference:

Affirmed
2
Discussed
1

Case
Note:
Miscellaneous - Protest march - Inconvenience due to - Constitution of India,
1949 - People belonging to political/non-political parties gathered on road
approaching to ground, which was in front of Appellant's house, with agitated
mood and would undertake their "Protests March" for ventilating their
grievances - High Court disposed of Appellant's appeal in light of assurance
given by State to settle controversy raised by Appellant - Hence, present
appeal - Whether directions issued so far need any further modification Held, State was right in not contesting Appellant's complaint by raising legal
grounds finding Appellant's grievance made in his complaint to be genuine State rightly came out with remedial suggestions to deal with situation
arising in case - Constitution casted duty on State and their authorities to
ensure that every citizen's cherished rights guaranteed to him under
Constitution were respected and preserved - If steps suggested State would
be implemented, then most of problems presently being faced by Appellant in
concerned area would be reduced to large extent - Hence, State had been
directed to ensure strict compliance of conditions/steps mentioned in their
Counter Affidavit - Impugned order modified - Appeal partly allowed. [paras
30, 32 and 33]
JUDGMENT
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal arises out of an order dated 21.05.2013 passed by the Division Bench
of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil
Special Appeal (Writ) No. 378 of 2013 which arises out of an order dated 25.02.2013
passed by the learned Single Judge in S.B. Civil Writ Petition No. 2273 of 2013.

3. By impugned order, the Division Bench disposed of the appeal filed by the Appellant
herein in the light of the assurance given by the State to settle the controversy raised
by the Appellant in the writ petition/appeal.
4. Dissatisfied with the impugned order, the Appellant has filed this appeal by way of
special leave before this Court.
5. This Court issued notice to the Respondents. On being served, learned Counsel for
the Respondents filed counter affidavit on behalf of the Respondents.
6. Heard learned Counsel for the parties.
7. In order to appreciate the issue involved in this appeal, it is necessary to mention
the facts in brief.
8. The Appellant (writ Petitioner) is the resident of Jaipur (Rajasthan). He retired as
Director General of Police in March 1995. To settle after retirement, the Appellant
constructed his house in a residential colony opposite to Vidhyut Bhawan in Jyoti
Nagar in Jaipur city. The locality and, in particular, the location of the Appellant's house
is very near to "Vidhan Sabha" (State Assembly Building).
9. The Appellant to his misfortune noticed that very frequently, thousand/hundreds of
people belonging to political/non-political parties would gather on the road
approaching to Vidhan Sabha, which is in front of his house, with agitated mood and
would
undertake
their "Protests
March" or "Dharna" or "Procession" for
ventilating their grievances. The protestors then would use indiscriminately
loudspeakers by erecting temporary stage on the road and go on delivering speeches
one after the other throughout the day which sometimes used to continue for
indefinite period regardless of time. Since there used to be a gathering of
thousand/hundreds of people, the demonstrators would indiscriminately make use of
the compound walls of nearby houses including that of the Appellant's house to ease
themselves frequently at any time.
10. In order to regulate such events and to maintain law and order situation, the State
and Police Administration used to put barricades and depute hundreds of police
personnel to see that no untoward incident occurs. These barricades used to be
installed just in front of the gates of the houses of the residents including the
Appellant's house. The police personnel like others would also use the walls of the
residential houses including that of the Appellant's house to ease and nobody was in a
position to tell them not to do such activities in front of their houses. The Appellant
also noticed that these activities had gained considerable momentum making living of
the residents of that area a miserable one because neither they were in a position to
stay comfortably and peacefully inside the house or do any work due to constant noise
pollution nor were in a position to come out of their house due to constant fear of
insecurity and restrictions put by the State.

11. The Appellant was one of the most affected persons whose living in his house had
become impossible due to these activities and finding no solution to the problem
faced, compelled him to first approach the Commissioner of Police and make an oral
complaint but finding that no action was taken, filed a written complaint on
21.11.2011 (Annexure P-1).
12. In the complaint, the Appellant narrated the aforementioned grievances in detail
and requested the Commissioner of Police to take immediate effective remedial steps
to prevent such events.
13. Since the Commissioner of Police did not take any action on the complaint, the
Appellant, on 06.03.2012, filed a complaint before the National Human Rights
Commission (NHRC), New Delhi under the provisions of the Human Rights Commission
Act, 2005 (hereinafter referred to as "the Act"). The NHRC forwarded the Appellant's
complaint to the Rajasthan State Human Rights Commission (RSHRC) for taking
appropriate action in accordance with law. The RSHRC, on receipt of the complaint,
registered the same being Petition No. 12/17/1720 and by order dated 24.09.2012
partly allowed the Appellant's petition and directed the Additional Home Secretary to
order the concerned officials to effectively stop interference with the right of the
Appellant herein to lead an independent and peaceful life and ensure that:
1. The crowd of demonstrators does not assemble, on both roads
opposite to the Petitioner's house during the assembly sessions.
2. The demonstrators are not allowed
loudspeakers during day and night.

to

use

high

powered

3. The road is not closed after stopping traffic and traffic movement is
maintained in a sustained and orderly manner.
4. The policemen are stopped from urinating in the proximity of the
wall of the Petitioner's house from the side of the M.L.A.'s complex
during the Assembly Sessions.
5. No barricading is done on the road opposite to, and near, the house
of the Petitioner.
14. Despite issuance of the aforementioned directions, the State did not ensure its
compliance and on the other hand, some miscreants attacked the Appellant's house
and hence out of disgust, the Appellant was compelled to file writ petition being S.B.
Civil Writ Petition No. 2273 of 2013 before the High Court of Rajasthan Bench at
Jaipur, seeking appropriate reliefs by issuance of writ of prohibition/mandamus against
the State and its authorities to protect the interest of the Appellant, his property and
his peaceful living.
15. Learned single Judge, by order dated 25.02.2013 disposed of the Appellant's writ
petition observing that since the State has already taken all necessary steps in the

light of the directions given by the RSHRC in their order dated 24.09.2012 and hence
no more orders are called for in the writ petition.
16. Learned Single Judge, in the concluding part of his order, observed as under:
...I am of the considered view that no order on the reliefs prayed for by the
Petitioner be passed as the State Government has already taken all requisite
action within its powers to ensure that the peace and quiet of the Petitioner
living in his residential house at Jyoti Nagar locality in proximity to Vidhan
Sabha is not unduly disturbed. It would be expected that measures detailed by
the Additional Advocate General in his submissions before this Court would be
implemented strictly.
17. The Appellant, felt aggrieved, filed intra court appeal before the Division Bench of
the High Court out of which this appeal arises. The Division Bench, by impugned order,
more or less on the same lines on which the learned Single Judge had disposed of the
writ petition, decided the Appellant's appeal.
18. The Division Bench in the concluding part of their order observed as under:
In view of that assurance extended on behalf of the State Government, the
learned single Judge has already reached the conclusion that the directions
issued by the Human Rights Commission, Rajasthan in its order dated
24.9.2012, have substantially been complied with. At this stage, the Division
Bench of this Court cannot give further direction in the appeal. The State
Government obviously shall also comply with such order and act in conformity
with assurance given before the single Bench and take special care to ensure
that peace and quiet of the Petitioner, living in his residential house at Jyoti
Nagar locality in proximity to Vidhan Sabha is not unduly disturbed.
It is against the aforementioned order of the Division Bench, the Appellant (writ
Petitioner) has filed this appeal.
19. The Respondents have filed their counter affidavit. The State, on affidavit, has
stated that it is their duty to ensure that no harm, injury, damage or
inconvenience/nuisance of any nature is caused to the life and property of any citizen
on account of any action and activities of other person(s) or/and State authorities and
all personal/fundamental/property rights guaranteed and recognized in law to every
citizen are protected to enable him to lead a meaningful life with dignity and peace
and to also enjoy his property. It is further stated that in compliance to the order
passed by RSHRC, the State has issued directions for ensuring its compliance which
are as under:
a. Deputy Commissioner of Police has been put in charge of the area in
order to ensure law and order in and around the residence of the
Petitioner.

b. Barricading at appropriate distance from the residence of the

Petitioner so that the movement of the residents as well as of the
Petitioner is not restricted as such and also because of the
demonstration in specific. When the legislative assembly is in session
barricading is done at least 60 feet away from the residence of the
Petitioner.
c. Mobile public toilets (two vehicles) have been placed by the
Rajasthan Municipal Corporation in the concerned area so that hygiene
is maintained in and around the area which has been affected by
regular demonstration. Further all cautions have been taken that the
public uses such facilities and neither police personnel on duty nor the
demonstrator may spoil the walls of the Petitioner by urinating.
d. Prior permission as per the Rules are being given by the office of
Deputy Commissioner of Police, Jaipur (South) to the demonstrators
and District Collector is directed to ensure that while giving permission
for demonstration it may also check that no instruments are allowed
which may violate the Rules or cause noise pollution.
20. It is with this background, the question arises as to whether the directions issued
so far need any further modification and if so, to what extent.
21. The law on nuisance is well settled. Nuisance in any form as recognized in the law
of Torts-whether private, public or common which results in affecting anyone's
personal or/and property rights gives him a cause of action/right to seek remedial
measures in Court of law against those who caused such nuisance to him and further
gives him a right to obtain necessary reliefs both in the form of preventing committing
of nuisance and appropriate damages/compensation for the loss, if sustained by him,
due to causing of such nuisance. (See-Ratanlal Dhirajlal-Law of Torts by G.P. Singh26th Edition pages-621, 637, 640).
22. We may, at this stage, consider apposite to take note of law laid down by this
Court in Noise Pollution (V), In Re-Implementation of the Laws for restricting
use of loudspeakers and high volume producing sound systems, : (2005) 5
SCC 733, as in our considered view, it has a material bearing over the issue, which is
the subject matter of this appeal.
23. This Court while entertaining the PIL filed by one Organization called
"Forum, Prevention of environmental and sound pollution" had the occasion to
examine the issue in relation to nuisance of noise pollution caused to the people at
large due to use of equipments/apparatus/articles etc. The noise pollution caused
generates different kinds of sounds thereby constantly creates irritation and
disturbance to the people. Since it was a continuing wrong all over the country and
hence, this Court, in great detail, examined the issue in the light of the citizens rights
guaranteed Under Articles 19(1), 21 and 25 of the Constitution of India, read with all
laws/rules/Regulations relating to pollution, including penal laws governing this issue.

24. Chief Justice R.C. Lahoti (as His Lordship then was), speaking for the Bench in
concluding para of the order, issued directions to all the States directing them to
ensure that noise pollution caused due to use of various apparatus/articles/activities
must be curbed and controlled by resorting to methods and modes specified in several
rules/Regulations dealing the subject. These directions are extracted herein below:
XII. Directions
It is hereby directed as under:
(i) Firecrackers
174. 1. On a comparison of the two systems i.e. the
present system of evaluating firecrackers on the basis of
noise levels, and the other where the firecrackers shall be
evaluated on the basis of chemical composition, we feel
that the latter method is more practical and workable in
Indian circumstances. It shall be followed unless and
until replaced by a better system.
2. The Department of Explosives (DOE) shall undertake
necessary research activity for the purpose and come out
with the chemical formulae for each type or category or
class
of
firecrackers.
DOE
shall
specify
the
proportion/composition as well as the maximum
permissible
weight
of
every
chemical
used
in
manufacturing firecrackers.
3. The Department of Explosives may divide the
firecrackers into two categories--(i) sound-emitting
firecrackers, and (ii) colour/light-emitting firecrackers.
4. There shall be a complete ban on bursting soundemitting firecrackers between 10 p.m. and 6 a.m. It is not
necessary to impose restrictions as to time on bursting of
colour/light-emitting firecrackers.
5. Every manufacturer shall on the box of each firecracker
mention details of its chemical contents and that it
satisfies the requirement as laid down by DOE. In case of
a failure on the part of the manufacturer to mention the
details or in cases where the contents of the box do not
match the chemical formulae as stated on the box, the
manufacturer may be held liable.
6. Firecrackers for the purpose of export may be
manufactured bearing higher noise levels subject to the
following conditions: (i) the manufacturer should be

permitted to do so only when he has an export order with

him and not otherwise; (ii) the noise levels for these
firecrackers should conform to the noise standards
prescribed in the country to which they are intended to
be exported as per the export order; (iii) these
firecrackers should have a different colour packing, from
those intended to be sold in India; (iv) they must carry a
declaration printed thereon something like "not for sale
in India" or "only for export to country AB" and so on.
(ii) Loudspeakers
175. 1. The noise level at the boundary of the public
place, where loudspeaker or public address system or any
other noise source is being used shall not exceed 10
dB(A) above the ambient noise standards for the area or
75 dB(A) whichever is lower.
2. No one shall beat a drum or tom-tom or blow a trumpet
or beat or sound any instrument or use any sound
amplifier at night (between 10.00 p.m. and 6 a.m.) except
in public emergencies.
3. The peripheral noise level of privately-owned sound
system shall not exceed by more than 5 dB(A) than the
ambient air-quality standard specified for the area in
which it is used, at the boundary of the private place.
(iii) Vehicular noise
176. No horn should be allowed to be used at night (between 10 p.m. and 6
a.m.) in residential area except in exceptional circumstances.
(iv) Awareness
177. 1. There is a need for creating general awareness
towards the hazardous effects of noise pollution. Suitable
chapters may be added in the textbooks which teach civic
sense to the children and youth at the initial/early-level
of education. Special talks and lectures be organised in
the schools to highlight the menace of noise pollution and
the role of the children and younger generation in
preventing it. Police and civil administration should be
trained to understand the various methods to curb the
problem and also the laws on the subject.
2. The State must play an active role in this process.
Resident Welfare Associations, service clubs and societies

engaged in preventing noise pollution as a part of their

projects need to be encouraged and actively involved by
the local administration.
3. Special public awareness campaigns in anticipation of
festivals, events and ceremonial occasions whereat
firecrackers are likely to be used, need to be carried out.
The abovesaid guidelines are issued in exercise of power
conferred on this Court Under Articles 141 and 142 of the
Constitution. These would remain in force until modified
by this Court or superseded by an appropriate legislation.
(v) Generally
178. 1. The States shall make provision for seizure and
confiscation of loudspeakers, amplifiers and such other
equipment as are found to be creating noise beyond the
permissible limits.
2. Rule 3 of the Noise Pollution (Regulation and Control)
Rules, 2000 makes provision for specifying ambient airquality standards in respect of noise for different
areas/zones, categorisation of the areas for the purpose
of implementation of noise standards, authorising the
authorities for enforcement and achievement of laid down
standards. The Central Government/State Governments
shall take steps for laying down such standards and
notifying the authorities where it has not already been
done.
25. We note with concern that though the aforesaid directions were issued by this
Court on 18.07.2005 for ensuring compliance by all the States but it seems that these
directions were not taken note of much less implemented, at least, by the State of
Rajasthan in letter and spirit with the result that the residents of Jaipur city had to
suffer the nuisance of noise pollution apart from other related peculiar issues
mentioned above so far as the Appellant's case is concerned.
26. Needless to reiterate that once this Court decides any question and declares the
law and issues necessary directions then it is the duty of all concerned to follow the
law laid down and comply the directions issued in letter and spirit by virtue of mandate
contained in Article 141 of the Constitution.
27. In our considered view, in the light of the authoritative pronouncement rendered
by this Court on the issue of noise pollution in the case of Noise Pollution (V), In
Re (supra), it is not necessary for this Court to again deal with the same issue except
to issue appropriate directions for its compliance.

28. We, accordingly, direct the Respondents to ensure strict compliance of the
directions contained in Para 174 to 178 of the judgment of this Court in Noise
Pollution (V), In Re (supra), and for ensuring its compliance, whatever remedial
steps which are required to be taken by the State and their concerned department(s),
the same be taken at the earliest to prevent/check the noise pollution as directed in
the aforesaid directions.
29. Now so far as the disturbance created by the police/state officials/people at large
in the Appellant's peaceful living in his house is concerned, in our considered view,
they do result in adversely affecting the Appellant's rights guaranteed Under
Article 21 of the Constitution as held by this Court in Noise Pollution (V), In Re
(supra) and also in Ramlila Maidan Incident In Re: (2012) 5 SCC 1. The RSHRC
and the writ Court were, therefore, justified in entertaining the complaint under the
Act and the writ petition Under Article 226 of the Constitution of India and in
consequence justified in giving appropriate directions mentioned above while disposing
the Appellant's complaint/writ petition.
30. We, however, note that the State was right on their part in not contesting the
Appellant's complaint/writ petition by raising technical/legal grounds finding the
Appellant's grievance made in his complaint to be genuine and then rightly came out
with remedial suggestions to deal with the situation arising in the case.
31. Indeed, this reminds us of the subtle observations made by Justice M.C. Chagla,
Chief Justice of Bombay High Court in Firm Kaluram Sitaram v. The Dominion of
India AIR 1954 Bombay 50, wherein while deciding the case between the citizen on
the one hand and State on the other, the learned Chief Justice in his distinctive style of
writing reminded the State of their duty towards the citizens while contesting his rights
qua State and made the following observations.
...we have often had occasion to say that when the State deals with a citizen it
should not ordinarily rely on technicalities, and if the State is satisfied that the
case of the citizen is a just one, even though legal defences may be open to it,
it must act, as has been said by eminent judges, as an honest person....
32. We are in complete agreement with the aforementioned statement of law laid
down in Firm Kaluram Sitaram (supra) as far back as in 1954. In our considered
view, the Constitution, inter alia, casts a duty on the State and their authorities to
ensure that every citizen's cherished rights guaranteed to him under the Constitution
are respected and preserved, and he/she is allowed to enjoy them in letter and spirit
subject to reasonable restrictions put on them, as dreamt by the framers of the
Constitution. Intervention of the Court is called for at the instance of citizen when
these rights are violated by fellow citizens or by any State agency.
33. We have perused the steps suggested by the State in their counter affidavit and
find that if the steps suggested by the State are implemented in letter and spirit and
further the implementation is observed in its proper perspective by the State and its
authorities from time to time coupled with any other good suggestions, if noticed,

while implementing the suggestions, then most of the problems presently being faced
by the Appellant and many others like him in the concerned area(s) would be reduced
to a large extent.
34. We, accordingly, direct the Respondents to ensure strict compliance of the
conditions/steps mentioned in Paras 5 (a) to (d) of the Counter Affidavit extracted
above and while ensuring its compliance, if the Respondents consider that it needs
some amendment(s) for ensuring better implementation then in such eventuality, the
same be done in the larger interest of the residents of the concerned area and equally
for the benefits of the residents of different parts in the State. Needless to say, while
implementing the directions, its objective should always be to ensure that the rights of
the citizens are not affected adversely by any kind of nuisance as mentioned above.
35. In view of the foregoing discussion and the directions contained above, the appeal
succeeds and is allowed in part. Impugned order stands modified to the extent
mentioned above.

Equivalent
Citation: 2002(1)ACR80(SC),
AIR2002SC40,
2002(1)ALD88(SC),
2002(1)ALLMR(SC)279,
2001(6)ALT35(SC),
2002
(1)
AWC
26
(SC),
(SCSuppl)2002(1)CHN4, [2002(1)JCR5(SC)], JT2001(9)SC364, 2001(6)KarLJ559,
2002(1)KLT55(SC),
2002-2-LW220,
2002(1)PLJR156,
2001(8)SCALE6,
(2001)8SCC765, (2002)1UPLBEC406
IN THE SUPREME COURT OF INDIA
Decided On: 02.11.2001
Appellants: Murli S. Deora
vs.
Respondent: Union of India and ors
Smoking in public areas
Hon'ble
M.B. Shah and R.P. Sethi, JJ.

Judges/Coram:

Counsels:
For Appearing parties: Soli J. Sorabjee, Attornery General, Indira Jaisingh, Sr.
Adv., R.S. Suri, Vipin Sanghi, Prateek Jalan, C. Radhakrishnan, P. Parmeswaran,S. K.
Sabharwal, Nirmalal Gupta, Alka Agarwal, Ranjan Mukherjee, M.P.S. Tomar, Jabar
Singh,
Adv.
for Sandhya
Goswami, A.
Mariapurtham, Aruna
Mathur, V.G.
Pragasam, Rahul Ray, Umesh Kumar Khaitan, Sanjay K. Shandilya, Adv. for V.D.
Khanna, Anil
Shrivastav, Ashok
Sagar, Sonu
Bhatnagar,
Adv.
for Rajan
Narain,Aruneshwar Gupta, Adv. (NP), A. Subhashini, Ajay K. Agarawal, Sangeeta
Sharma, Mahesh Chandra, Krishna Sarma, Asha G. Nair and Ngangom Junior Luwang,
Advs
Subject: Constitution
Catch Words
Mentioned IN
Relevant
Constitution of India - Article 21; Constitution of India - Article 32

Section:

Acts/Rules/Orders:
Constitution of India - Article 21, Constitution of India - Article 32; Cigarettes
(Regulation of Production, Supply and Distribution) Act, 1975
Ratio
Decidendi:
"In the interest of citizen, smoking in public places will be prohibited."
Case
Note:
Constitution of India - Article 21--Cigarettes (Regulation of Production,

Supply and Distribution) Act, 1975--Cigarette smoking in public places-Smoking injurious to health--No reason to compel non-smokers to be helpless
victims of air pollution injurious to their health--Hence, directions issued
prohibiting smoking in public places.
Fundamental right guaranteed under Article 21 of Constitution of India, inter
alia, provides that none shall be deprived of his life without due process of
law. Then why a non-smoker should be afflicted by various diseases including
lung cancer or of heart, only because he is required to go to public places? Is
it not indirectly depriving of his life without any process of law? The answer
is obviously yes. Undisputedly, smoking is injurious to health and may affect
the health of smokers, but there is no reason that health of passive smokers
should also be injuriously affected. In any case, there is no reason to compel
non-smokers to be helpless victims of air pollution.
The Supreme Court directed and prohibited smoking in public places and
issued directions to the Union of India, State Governments as well as the
Union Territories to take effective steps to ensure prohibiting smoking in
public places, namely :
(1) Auditoriums
(2) Hospital buildings
(3) Health institutions
(4) Educational institutions
(5) Libraries
(6) Court buildings
(7) Public offices
(8) Public conveyances, including railways.
ORDER
1. Heard the learned counsel for the parties.
2. Fundamental right guaranteed under Article 21 of Constitution of India, inter
alia, provides that none shall be deprived of his life without due process of law. Thenwhy a non-smoker should be afflicted by various diseases including lung cancer or of
heart, only because he is required to go to public places? Is it not indirectly depriving
of his life without any process of law? The answer is obviously-yes. Undisputedly
smoking is injurious to health and may affect the health of smokers but there is no
reason that health of passive smokers should also be injuriously affected. In any case
there is no reason to compel non-smokers to be helpless victims of air pollution.

3. The statement of objects and reason of (The) Cigarettes (Regulation of Production.

Supply and Distribution) Act. 1975, inter alia, provides, "Smoking of cigarettes is a
harmful habit and, in course of time, can lead to grave health hazards Researches
carried out in various parts of the world have confirmed that there is a relationship
between smoking of cigarettes and lung cancer, chronic bronchitis, certain diseases of
the heart and arteries caner of bladder, prostrate, mouth pharynx and oesophagus;
peptic ulcer etc. are also reported to be among the ill-effects of cigarette smoking."
4. Similarly, the statement of objects and reasons of the Cigarettes and Other Tobacco
Products (Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Bill, 2001, provides, "Tobacco is universally
regarded as one of the major public health hazards and is responsible directly or
indirectly for an estimated eight lakh deaths annually in the country. It has also been
found that treatment of tobacco related diseases and the loss of productivity caused
therein cost the country almost Rs. 13,500/- crores annually which more than offsets
all the benefits accruing in the form of revenue and employment generated by tobacco
industry".
5. In this view of the matter, when this petition under Article 32 of the Constitution of
Indian came for orders on 31st August, 2001, we have passed order for implementing
1975 Act. At that time of hearing, learned Attorney General as well as counsel for the
parties submitted that considering harmful effect of smoking, smoking in public places
is required to be prohibited. On this submission, we sought response of the Central
Government. As no affidavit was filed during the stipulated time by the Central
Government, on 28th September, 2001, we were required to adjourn the matter. Today
also, when the matter came up for hearing no response is filed on behalf of the Central
Government. However, learned Attorney General with all emphasis at his command
submitted that appropriate order banning smoking in public places be passed. Learned
counsel for the petitioner also submitted to the aforesaid effect. Counsel appearing for
other respondent also supported the same.
6. In the petition, it is pointed out that tobacco smoking contains harmful contents
including nicotine, tar, potential carcinogens, carbon monoxide irritants, asphyxiates
and smoke particles which are the cause of many diseases including the cancer. It is
alleged that three million people die every year as a result of illness related to the use
of tobacco products of which on e million people belong to developing countries like
India. The World Health Organisation is stated to have estimated that tobacco related
deaths can rise to a whopping seven million per year. According to this organisation, in
the last half century in the developing countries alone smoking has killed more than
sixty million people. Tobacco smoking also adds to the air pollution. Besides cancer,
tobacco smoking is responsible for various other fatal diseases to the mankind.
7. It is further submitted that statutory provisions are being made for prohibiting
smoking in public places and the Bill introduced in the Parliament is pending
consideration before a Select Committee. The State of Rajasthan has claimed to have
passed Act No.14 of 2000 provide for prohibition of smoking in place of public work or

use and in public service vehicles for that State. It is stated that in Delhi also there is
prohibition of smoking in public places.
8. Learned Attorney General for India submits and all the counsel appearing for the
other parties agree that considering the adverse effect of smoking in public places, it
would be in the interests of the citizens to prohibit the smoking in public places till the
statutory provision is made and implemented by the legislative enactment. The
persons not indulging in smoking cannot be compelled to or subject to passive
smoking on a account of acts of the smokers.
9. Realising the gravity of the situation and considering the adverse effect of smoking
on smokers and passive smokers, we direct and prohibit smoking in public places and
issue directions to the Union of India, State Governments as well as the Union
Territories to take effective steps to ensure prohibiting smoking in public places,
namely:
1. Auditoriums
2. Hospital Buildings
3. Health Institutions
4. Educational Institutions
5. Libraries
6. Court Buildings
7. Public Office
8. Public Conveyances, including Railways.
10. Learned Attorney General for India assured the court that Union of India shall take
necessary effective steps to give wide publicity to this order by electronics s well as
print media to make the general public aware of this order of prohibition of smoking.
11. We further direct the Registrar General to intimate the State Governments Union
Territories as well as the Commissioners of Police as mentioned in our orders dated
31st August, 2001 and 28th September, 2001 of this Court with directions for
submission of their compliance report in this Court within five weeks from today. Union
of India shall also file its response at the earliest.
12. List after six weeks.

Equivalent Citation: 2012(3)ALT(Cri)91,

2012(2)J.L.J.R.91,
(2012)2MLJ32(SC),

2012CriLJ3516, 2012(1)Crimes241(SC),
2012(2)PLJR217,
2012(2)SCALE682,

(2012)5SCC1
IN THE SUPREME COURT OF INDIA
Suo Motu Writ Petition (Crl.) No. 122 of 2011 (Under Article 32 of The Constitution of
India)
Decided On: 23.02.2012
Appellants: Ramlila Maidan Incident
Vs.
Respondent: Home Secretary, Union of India (UOI) and Ors.
Hon'ble
Swatanter Kumar and B.S. Chauhan, JJ.

Judges/Coram:

Counsels:
For Appearing Parties: P.P. Malhotra, ASG, Rajeev Dhavan, Amicus Curiae, Ram
Jethmalani, P.H. Parekh, Sr. Advs., Udita Singh, L.R. Singh, Shubhranshu Pedhi,Anil
Katiyar, Lata Krishnamurti, Balajji Subramanian, Manu Sharma, Karan Kalia, Pranav
Diesh, Sanjay Jain, Vikas Garg, B.K. Prasad, Siddhartha Dave,Shailender Sharma, S.N.
Terdal, D.P. Mohanty, Subhasree Chatterjee, Anand Shankar Jha, Ekansh Misra, Advs.
for Parekh and Co., Kamini Jaiswal, Shomila Bakshi, Abhimanyu Shrestha and Kumud
L. Das, Advs.
Subject: Constitution
Subject: Criminal
Catch Words
Mentioned IN
Relevant
Section:
Code of Criminal Procedure, 1973 - Section 144; Constitution of India - Article 19(g)
Acts/Rules/Orders:
Constitution of India (44th Amendment) Act, 1979; Constitution of India (First
Amendment) Act, 1951; Constitution of India (Sixteenth Amendment) Act, 1963;Right
of Children to Free and Compulsory Education Act, 2010; Constitution of India (FortySecond Amendment) Act, 1976; Bombay Police Act, 1951 - Section 33(1); Delhi Police
Act, 1978 - Section 17(1), Delhi Police Act, 1978 - Section 28, Delhi Police Act, 1978 Section 29, Delhi Police Act, 1978 - Section 31, Delhi Police Act, 1978 - Section
36, Delhi Police Act, 1978 - Section 47, Delhi Police Act, 1978 - Section 65; Motor
Vehicles Act; Uttar Pradesh Urban Planning and Development Act, 1973 - Section
25, Uttar Pradesh Urban Planning and Development Act, 1973 - Section 42; Code of

Criminal Procedure, 1973 (CrPC) - Section 91, Code of Criminal Procedure, 1973
(CrPC) - Section 129, Code of Criminal Procedure, 1973 (CrPC) - Section 134, Code of
Criminal Procedure, 1973 (CrPC) - Section 144, Code of Criminal Procedure, 1973
(CrPC) - Section 144A, Code of Criminal Procedure, 1973 (CrPC) - Section 173; Indian
Penal Code (IPC) - Section 149, Indian Penal Code (IPC) - Section 188, Indian Penal
Code (IPC) - Section 195(1); Code of Criminal Procedure, 1973 (CrPC) - Section
46(4), Code of Civil Procedure, (CPC) - Section 55, Code of Civil Procedure, (CPC) Section 144(3); Punjab Police Rules - Rule 14.56; Delhi Municipal Corporation Rules Rule 10;Bombay Police Rules - Rule 7; Constitution of India - Article 13, Constitution
of India - Article 13(1), Constitution of India - Article 13(4), Constitution of India Article 14, Constitution of India - Article 19, Constitution of India - Article
19(1), Constitution of India - Article 19(2), Constitution of India - Article
19(3),Constitution of India - Article 21, Constitution of India - Article 37, Constitution
of India - Article 38, Constitution of India - Article 38(1), Constitution of India - Article
51A, Constitution of India - Article 239AA(3), Constitution of India - Article 355
Cases
Referred:
Schenck v. United States 63 Led 1173; Babulal Parate v. State of Maharashtra : (1961)
3 SCR 423; State of West Bengal v. Subodh Gopal Bose : AIR 1954 SC 92; Maneka
Gandhi v. UOI : AIR 1978 SC 597; Madhav Hayawadanrao Hoskot v. State of
Maharashtra : (1978) 3 SCC 544; S. Rangarajan v. Jagjivan Ram : (1989) 2 SCC
574; State of Madras v. V.G. Row: AIR 1952 SC 196; Chintamanrao and Anr. v. State
of Madhya Pradesh : AIR 1951 SC 118; State of Gujarat v. Mirzapur Moti Kureshi
Kassab Jamat and Ors. : (2005) 8 SCC 534; Romesh Thappar v. State of Madras :
1950 SCR 594; Dr. Ram Manohar Lohia v. State of Bihar : AIR 1966 SC 740; Dr. D.C.
Saxena v. Hon'ble the Chief Justice of India (1996) 5 SCC 216; Union of India v.
Naveen Jindal and Anr. : (2004) 2 SCC 510; Madhu Limaye v. Sub Divisional
Magistrate and Ors. AIR 1971 SC 2481; State of Bihar v. K.K. Misra (1969) S.C.R.
337; Mst. Jagrupa Kumari v. Chotay Narain Singh (1936) 37 Cri.L.J. 95 (Pat);Himat Lal
K. Shah v. Commissioner of Police, Ahmedabad and Anr. : (1973) 1 SCC 227; Railway
Board v. Narinjan Singh: (1969) 3 SCR 548 : (1969) 1 SCC 502; State of Karnataka v.
Dr. Praveen Bhai Thogadia : (2004) 4 SCC 684;Feiner v. New York (1951) 340 U.S.
315; S. Pratap Singh v. The State of Punjab : (1964) 4 SCR 733; Destruction of Public
and Private Properties, In Re v. State of Andhra Pradesh and Ors. : (2009) 5 SCC
212; Gulam Abbas v. State of Uttar Pradesh : AIR 1981 SC 2198; Amitabh Bachchan
Corporation Ltd. v. Mahila Jagran Manch and Ors. : (1997) 7 SCC 91; R.K. Garg v.
Superintendent, District Jail, Saharanpur and Ors. : (1970) 3 SCC 227; Union of India
v. Association of Democratic Reforms : (2002) 3 SCC 696; Nance v. British Columbia
Electric Ry. (1951) A.C. 601 ; Municipal Corporation of Greater Bombay v. Shri Laxman
Iyer and Anr. : AIR 2003 SC 4182; Municipal Corporation of Delhi, Delhi v. Association
of Victims of Uphaar Tragedy and Ors. C.A. Nos. 7114-7115 of 2003 and 7116 of 2003
: C.A. No. 6748 of 2004; GVK Industries Ltd. and Anr. v. Income Tax Officer and. Anr. :
(2011) 4 SCC 36; Nandini Sundar and Ors. v. State of Chhatisgarh : AIR 2011 SC
2839; H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union
of India : AIR 1971 SC 530; Motilal Padampat Sugar Mills Company Ltd. v. State of
U.P. and. Ors. : AIR 1979 SC 621; D.K. Basu v. State of West Bengal: AIR 1997 SC
610; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and. Ors. AIR

1981 SC 746; Kharak Singh v. State of U.P. and Ors: AIR 1963 SC 1295; Govind v.
State of Madhya Pradesh and Anr. : AIR 1975 SC 1378; Wolf v. Colorado (1948) 338
US 25; Malak Singh etc. v. State of Punjab and Haryana and Ors. : AIR 1981 SC
760; State of Maharashtra and Anr. v. Madhukar Narayan Mardikar : AIR 1991 SC
207; R. Rajagopal @ R.R. Gopal and Anr. v. State of Tamil Nadu and Ors. : AIR 1995
SC 264; Mr. 'X' v. Hospital 'Z' : (1998) 8 SCC 296; Sharda v. Dharmpal : (2003) 4 SCC
493; People's Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. : AIR
2003 SC 2363 : AIR 1997 SC 568 : AIR 1997 SC 568; District Registrar and Collector,
Hyderabad and Anr. v. Canara Bank and Ors. : (2005) 1 SCC 496; Bhavesh Jayanti
Lakhani v. State of Maharashtra and Ors : (2009) 9 SCC 551; Smt. Selvi and Ors. v.
State of Karnataka : AIR 2010 SC 1974;Ram Jethmalani and Ors. v. Union of India
and Ors: (2011) 8 SCC 1; Rabin Mukherjee and Ors. v. State of West Bengal and. Ors.
: AIR 1985 Cal. 222; Burrabazar Fireworks Dealers Association v. Commissioner of
Police Calcutta : AIR 1998 Cal 121; Church of God (Full Gospel) in India v. K.K.R.
Majestic Colony Welfare Assn. and. Ors. : AIR 2000 SC 2773; Forum, Prevention of
Environment and Sound Pollution v. Union of India and. Ors. : AIR 2006 SC
348; Prithipal Singh and Ors. v. State of Punjab and Anr : (2012) 1 SCC 10
Authorities
Referred:
Charlesworth & Percy on Negligence, Eleventh Edition, Pages 195, 206; Clerk &
Lindsell on Torts, Twentieth Edition, pg. 246
Citing

Reference:

Discussed
50
Mentioned
3

Case
Note:
Criminal - Right to freedom of speech and expression - Article 19(2) of
Constitution of India, 1950 - Interpretation of constitutional scheme and
historical background of relevant Articles relating to right to freedom of
speech and expression in India - Held, State had a duty to protect itself
against certain unlawful actions and, therefore, might enact laws which
would ensure such protection - Right that sprang from Article 19(1)(a) of
Constitution, was not absolute and unchecked - There could not be any liberty
absolute in nature and uncontrolled in operation so as to confer a right
wholly free from any restraint - Law itself had to be reasonable and, action
under that law had to be in accordance with law so established - Nonobservance of either of this could vitiate action, but if former was invalid,

then latter could not withstand - A restriction imposed in any form had to be
reasonable and to that extent, it must stand scrutiny of judicial review - It
could not be arbitrary or excessive - It must possess a direct and proximate
nexus with object sought to be achieved - Whenever and wherever any
restriction was imposed upon right to freedom of speech and expression, it
must be within framework of prescribed law, as subscribed by Article 19(2)
of Constitution - Term 'social order' had a very wide ambit - It included 'law
and order', 'public order' as well as 'security of State' - Security of State was
core subject and public order as well as law and order follow same - There
had to be a balance and proportionality between right and restriction on one
hand, and right and duty, on other - Every right had a corresponding duty Restriction must be provided by law in a manner somewhat distinct to term
'due process of law' as contained in Article 21 of Constitution - State would
have to satisfy Court that imposition of restrictions was not only in interest of
security of State but was also within framework of Articles 19(2) and 19(3)
of Constitution - Provisions of Section 144 of CrPC, provided for a complete
mechanism to be followed by Magistrate concerned and also specify
limitation of time till when such an order might remain in force - It also
prescribed circumstances that were required to be taken into consideration
by said authority while passing an order under Section 144 of CrPC - Section
144 of CrPC, was intended to serve public purpose and protect public order This power vested in executive was to be invoked after satisfaction of
authority that there was need for immediate prevention or that speedy
remedy was desirable and directions as contemplated were necessary to
protect interest of others or to prevent danger to human life, health or safety
or disturbance of public tranquility or a riot or an affray - Expression 'law and
order' was a comprehensive expression which might include not merely
'public order' but also matters such as 'public peace', 'public tranquility' and
'orderliness' in a locality or a local area and perhaps some other matters of
public concern too - 'Public order' was something distinct from order or
orderliness in a local area - Public order, if disturbed, must lead to public
disorder whereas every breach of peace might not always lead to public
disorder - Provisions of Section 144 of CrPC, empowering authorities to pass
orders to tend to or to prevent disturbances of public tranquility was not ultra
vires Constitution - Section 144 of CrPC, was a power to be exercised by
specified authority to prevent disturbance of public order, tranquility and
harmony by taking immediate steps and when desirable, to take such
preventive measures - Duty to maintain law and order lied on concerned
authority - Thus, there was nothing unreasonable in making it initial judge of
emergency - If authority anticipated an imminent threat to public order or
public tranquility, it would be free to pass desirable directions within
parameters of reasonable restrictions on freedom of an individual Provisions of Section 144 of CrPC, were attracted only in emergent situations
- Emergent power was to be exercised for purposes of maintaining public
order - An order under Section 144 of CrPC, must be an order in writing,
referring to facts and stating reasons for imposition of such restriction These were basic requirements for passing an order under Section 144 of

CrPC - Most onerous duty that was cast upon empowered officer by
legislature was that perception of threat to public peace and tranquility
should be real and not quandary, imaginary or a mere likely possibility - Once
an order under Section 144 of CrPC, was passed, it was expected of all
concerned to implement said order unless it had been rescinded or modified
by a forum of competent jurisdiction - Its enforcement had legal
consequences - An order under Section 144 of CrPC, would have an
application to an 'actual' unlawful assembly as well as a 'potential' unlawful
assembly - There had been a clear indication on behalf of authorities
concerned that Baba Ramdev could go on with his plans and, proper plans
had been made to ensure security and Regulation of traffic and emergency
measures were also put in place - There was nothing on record to show, if
any information of some untoward incident or any other intelligence input
was received by authorities which compelled them to invoke provisions of
Section 144 of CrPC., that too, as an emergency case without any intimation
to organizers and without providing them an opportunity of hearing Expression 'emergency' even if understood in its common parlance would
meant an exigent situation - Such an emergent case must exist for purpose of
passing a protective or preventive order - Emergent situation must be
reflected from records which were before authority concerned which passed
order under Section 144 of CrPC - There were hardly any factual averments in
affidavit of Commissioner of Police which would show any such emergent
event happening between 3rd and 4th June, 2011 - Police as well as followers
of Baba Ramdev indulged into brick batting - Teargas shells were fired at
crowd by Police and, to a limited extent, Police resorted to lathi charge - A
large number of Police personnel were carrying lathis and had actually
beaten persons, including those sitting on ground or hiding behind tin shed,
with same - Documents on record showed that, some of Police personnel
certainly abused their authority, were unduly harsh and violent towards
people present at Ramlila Maidan, whereas some others were, in fact, talking
to members of gathering as well as had adopted a helpful attitude - Brick
batting resorted to, by both sides could not be justified in any circumstances
- Even if followers of Respondent No. 4 acted in retaliation to firing of
teargas, still they had no cause or right in law to throw bricks towards stage,
in particular, towards Police - Use of teargas shells and use of lathi charge by
Police, though limited, could hardly be justified - In no case, brick batting by
Police could be condoned - They were protectors of society and, therefore,
could not take recourse to such illegal methods of controlling crowd - Large
number of persons were injured in action of Police and had to be hospitalized
- Element of indiscipline on behalf of Police could be seen in footage of CCTV
cameras as well as in log book entries of Police - When Police had decided to
carry out such a big operation of evicting such a large gathering suddenly, it
was expected of it to make better arrangements, to cogitate over matter
more seriously and provide better arrangements - There was lack of
readiness on part of Police and also it had not prepared any action plan for
enforcing order of executive authority passed under Section 144 of CrPC - It
was expected of Police to make elaborate, adequate and precise

arrangements to ensure safe eviction of such large number of persons, that

too, at midnight - Both, members of public as well as Police personnel, had
suffered injuries - A large number of followers of Baba Ramdev got injured Number of these persons was much higher in comparison to that of Police Factum of lathi charge by some of police personnel was demonstrated in
photographs, footages of CCTV cameras as well as from medical evidence on
record - Prima facie, it was negligence and a limited abuse of power by police
that resulted in injuries and subsequent death of Smt. Rajbala - Thus, at least
some ad hoc compensation should be awarded to heirs of deceased and other
injured persons as well - There was no compliance to terms of Standing Order
309 - There was no reason for Police for not making preferential use of water
cannons to disperse crowd even if they had come to conclusion that it was an
unlawful assembly and it was not possible to disperse crowd without use of
permissible force in prescribed manner - Persons at realm of affairs of Police
force had to take a decision backed by their wisdom and experience whether
to use force or exercise greater control and restraint while dispersing an
assembly - They were expected and should have some freedom of objectively
assessing situation at site - But in all events, this would be a crucial decision
by concerned authorities - In present case, temptation to use force had
prevailed over decision to exercise restraint - Guidelines and even matters of
common prudence had not been taken into consideration while firing teargas
shells - Police Force and, at least, some members of Police Force, had failed
to execute orders in accordance with standing orders and had failed to take
various steps that were required to be taken including use of minimum force,
videography of event, display of banner, announcement into PA system etc. Some members of Force when incited by provocation or injury, used
excessive force, including use of teargas - Some members of Force inflicted
injuries by indulging in uncalled for lathi charge and by throwing stones on
public - Lathi charge against those persons was not called for - Teargas shells
were fired in retaliation to brick-batting by crowd - Even in that event, Police
should have made proper announcements - If authorities had taken decision
to disperse crowd by use of teargas, then they should have implemented that
decision with due care and precautions that they were required to take under
relevant guidelines and Rules - It was primarily firing of teargas shells and
use of cane sticks against crowd that resulted in stampede and injuries to a
large number of people - Throwing of bricks upon Police by members of
assembly could not be justified on any ground - Few persons who were
behind stage and threw bricks, either from corner of stage or from behind
stage, were guilty of offence that they had committed - Nothing absolved
them of criminal liability that entailed their actions - Even if tear smoke shells
were fired by Police first, still crowd had no justification to throw bricks at
Police and cause hurt to some of Policemen - Police had a duty to keep a
watch on people from point of view of maintaining law and order - Firing of
teargas shells in direction of crowd was contrary to guidelines and it led to
some people getting breathless and two of them falling unconscious - This
also prevented people present there from reaching exit gates - Police Force
had failed to act in accordance with Rules and Standing Orders - Negligence

was attributable to some members of force - Police, in breach of their duty,

acted with uncontrolled force - Orders were passed arbitrarily by concerned
authorities and, thus, they were to be held responsible for consequences in
law - Respondent No. 4, its members and Baba Ramdev committed breach of
their legal and moral duty and acted with negligence contributing to
unfortunate incident rendering themselves liable for legal consequences
resulting therefrom - Conduct of representatives of Respondent No. 4, as well
as of Baba Ramdev in jumping from stage into crowd, while declining to
accept orders and implement them, was contrary to basic rule of law as well
as legal and moral duty that they were expected to adhere to - Thus, they had
to be held guilty of breach of these legal and moral duties as Injuria non
excusat injuriam - Provisions of Section 144 of CrPC could not be resorted to
merely on imaginary or likely possibility or likelihood or tendency of a threat It had not to be a mere tentative perception of threat but a definite and
substantiated one - There was a direct as well as implied responsibility upon
Government to function openly and in public interest - Each citizen of India
was entitled to enforce his fundamental rights against Government, subject
to any reasonable restrictions as might be imposed under law - Government
could, in larger public interest, take a decision to restrict enforcement of
freedom, only for a valid, proper and justifiable reason - Such a decision
could not be arbitrary or capricious - Such restriction had to be enforced with
least invasion - There was nothing on record which explained extra-ordinary
emergency that existed on midnight of 4th/5th June, 2011 which led police
to resort to waking up sleeping persons, throwing them out of tents and
forcing them to disperse using force, cane sticks, teargas shells and brickbatting - Why this enforcement could not even wait till early next morning i.e.
5th June, 2011 - This was a very crucial factor and onus to justify this was
upon State and Police and they had failed to discharge this onus - This
decision, whether taken by Police itself or, taken at behest of people in power
and Ministry of Home Affairs, was certainly amiss and a decision which was
arbitrary and unsustainable - An order passed in anticipation by Magistrate
empowered under Section 144 of CrPC, was not an encroachment of freedom
granted under Articles 19(1)(a) and 19(1)(b) of Constitution and it was not
regarded as an unreasonable restriction - It was an executive order, open to
judicial review - Entire basis of an action under Section 144 was 'urgency of
situation' and power therein was intended to be availed for preventing
'disorder, obstruction and annoyance', with a view to secure public weal by
maintaining public peace and tranquility - Preservation of public peace and
tranquility was primary function of Government and aforesaid power was
conferred on executive - In a given situation, a private right must give in to
public interest - Constitution mandated and every Government was
constitutionally committed to idea of socialism, secularism and public
tranquility - An order under Section 144 of CrPC., though primarily
empowered executive authorities to pass prohibitory orders vis--vis a
particular facet, but was intended to serve larger public interest - Restricted
dimensions of provisions were to serve larger interest, which at relevant
time, had an imminent threat of being disturbed - Order could be passed

when immediate prevention or speedy remedy was desirable - Nobody had

suggested cancellation of permission granted by land owning authority or
Police for continuation of activity by Respondent No. 4, though they were
aware of all facts - Order passed under Section 144 of CrPC did not give any
material facts or such compelling circumstances that would justify passing of
such an order - There should have existed some exceptional circumstances
which reflected a clear and prominent threat to public order and public
tranquility for authorities to pass orders of withdrawal of permission at 9.30
p.m. on 4th June, 2011 - This action or order was not mala fide Preparedness on part of Police was not complete in all respects and also that
it was not appropriate time to evict people from Ramlila Ground - Mere
change in purpose or in number of persons to be gathered at Ramlila Maidan
simplicitor could hardly be cause of such a grave concern for authorities to
pass orders late in night - It was not necessary for executive authorities and
Police to pass orders under Section 144 of CrPC and withdraw permissions Matter could be resolved by mutual deliberation and intervention by
appropriate authorities - Existence of sufficient ground was sine qua non for
invoking power vested in executive under Section 144 of CrPC - Thus, in case
of a mere apprehension, without any material facts to indicate that
apprehension was imminent and genuine, it might not be proper for
authorities to place such a restriction upon rights of citizen - Denial of a right
to hold such meeting had to be under exceptional circumstances and strictly
with object of preventing public tranquility and public order from being
disturbed - Reasonable notice was a requirement of Section 144 of CrPC Wherever provision of a statute did not provide for a specific time, same had
to be done within a reasonable time - Reasonable time must depend upon
facts and circumstances of a given case - Thus, it was not possible to lay
down any straight jacket formula or an absolute proposition of law with
exactitude that would be applicable uniformly to all cases/situations - In fact,
it might not be judicially proper to state such a proposition - It must be left to
discretion of executive authority, vested with such powers to examine each
case on its own merits - Articles 19(1)(a) and 19(1)(b) of Constitution, were
subject to reasonable restrictions which might be imposed on exercise of
such right and which were in interest of sovereignty and integrity of India,
security of State, public order, decency or morality and friendly relations with
foreign states - Associating Police as a pre- requirement to hold such
meetings, dharnas and protests, on such large scale, would not infringe
fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of
Constitution - Because, this would squarely fall within regulatory mechanism
of reasonable restrictions, contemplated under Articles 19(2) and 19(3) of
Constitution - Once an order under Section 144 of CrPC was passed by
competent authority and such order directed certain acts to be done or
abstained from doing certain acts and such order was in force, any assembly,
which initially might have been a lawful assembly, would become an unlawful
assembly and people so assembled would be required to disperse in
furtherance to such order - Obedience of lawful orders was duty of every
citizen - There was no statutory definition of contributory negligence -

'Negligence' materially contributed to injury or was regarded as expressing

something which was a direct cause of accident - A negligence could be
composite or contributory - 'Negligence' did not always mean absolute
carelessness, but want of such a degree of care as was required in particular
circumstances - 'Negligence' was failure to observe, for protection of
interests of another person, degree of care, precaution and vigilance which
circumstances justly demand, whereby such other person suffers injury Legality and correctness of order passed under Section 144 of CrPC was not
challenged by Respondent No. 4 and, it remained unchallenged till date Attempt on part of authorities to enforce order forthwith, practically
frustrated right available to Respondent No. 4 under law i.e. preferring of an
appeal or a revision under provisions of CrPC - There existed a clear
constitutional duty, legal liability and moral responsibility to ensure due
implementation of lawful orders and to maintain basic rule of law - To
negligence, there was a contribution by Respondent No. 4 as well - Role of
Baba Ramdev at that crucial juncture could have turned tide and probably
brought a peaceful end rather than heart rending end of injuries and
unfortunate deaths - Even if it was assumed that action of Police was wrong
in law, it gave no right to others to commit any offence Injuria non excusat
injuriam - Every law abiding citizen should respect law and must stand in
conformity with rule - In circumstances of case, Baba Ramdev and office
bearers of Respondent No. 4 had contributed to negligence leading to
occurrence in question and were vicariously liable for such action - State and
Police could have avoided this tragic incident by exercising greater restraint,
patience and resilience - Orders were passed by authorities in undue haste
and were executed with force and overzealousness, as if an emergent
situation existed - Decision to forcibly evict innocent public sleeping at
Ramlila grounds in midnight of 4th/5th June, 2011, whether taken by police
independently or in consultation with Ministry of Home Affairs was amiss and
suffered from element of arbitrariness and abuse of power to some extent Restriction imposed on right to freedom of speech and expression was
unsupported by cogent reasons and material facts - It was not a case of
emergency - Police had failed to establish that a situation had arisen where
there was imminent need to intervene, having regard to sensitivity and
perniciously perilous consequences that could have resulted, if such harsh
measures had not been taken forthwith - Respondent No. 4 was guilty of
contributory negligence - It could not be said that order passed by competent
authority and execution thereof were mala fide in law or in fact or was an
abdication of power and functions by Police - Petition disposed of
JUDGMENT
Swatanter Kumar, J.
1. At the very outset, I would prefer to examine the principles of law that can render
assistance in weighing the merit or otherwise of the contentious disputations asserted
before the Court by the parties in the present suo moto petition. Besides restating the

law governing Articles 19(1)(a) and 19(1)(b) of the Constitution of India and the
parallel restrictions contemplated under Articles 19(2) and 19(3) respectively, I would
also gauge the dimensions of legal provisions in relation to the exercise of jurisdiction
by the empowered officer in passing an order under Section 144 of the Code of
Criminal Procedure, 1973 (for short 'Code of Criminal Procedure.').
2. It appears justified here to mention the First Amendment to the United States (US)
Constitution, a bellwether in the pursuit of expanding the horizon of civil liberties. This
Amendment provides for the freedom of speech of press in the American Bill of Rights.
This Amendment added new dimensions to this right to freedom and purportedly,
without any limitations. The expressions used in wording the Amendment have a wide
magnitude and are capable of liberal construction. It reads as under:
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.
3. The effect of use of these expressions, in particular, was that the freedom of speech
of press was considered absolute and free from any restrictions whatsoever. Shortly
thereafter, as a result of widening of the power of judicial review, the US Supreme
Court preferred to test each case on the touchstone of the rule of 'clear- and-presentdanger'. However, application of this rule was unable to withstand the pace of
development of law and, therefore, through its judicial pronouncements, the US
Supreme Court applied the doctrine of 'balancing of interests'. The cases relating to
speech did not simply involve the rights of the offending speaker but typically they
presented a clash of several rights or a conflict between individual rights and
necessary functions of the Government. Justice Frankfurter often applied the abovementioned Balancing Formula and concluded that "while the court has emphasized the
importance of 'free speech', it has recognized that free speech is not in itself a
touchstone. The Constitution is not unmindful of other important interests, such as
public order, if free expression of ideas is not found to be the overbalancing
considerations."
4. The 'balancing of interests' approach is basically derived from Roscoe Pound's
theories of social engineering. Pound had insisted that his structure of public, social
and individual interests are all, in fact, individual interests looked at from different
points of view for the purpose of clarity. Therefore, in order to make the system work
properly, it is essential that when interests are balanced, all claims must be translated
into the same level and carefully labelled. Thus, a social interest may not be balanced
against individual interest, but only against another social interest. The author points
out that throughout the heyday of the clear-and-present-danger and preferred position
doctrines, the language of balancing, weighing or accommodating interests was
employed as an integral part of the libertarian position. (Freedom of Speech: The
Supreme Court and Judicial Review, by Martin Shapiro, 1966)

5. Even in the United States there is a recurring debate in modern First Amendment
Jurisprudence as to whether First Amendment rights are 'absolute' in the sense that
the Government may not abridge them at all or whether the First Amendment requires
the 'balancing of competing interests' in the sense that free speech values and the
Government's competing justification must be isolated and weighted in each case.
Although the First Amendment to the American Constitution provides that Congress
shall make no law abridging the freedom of speech, press or assembly, it has long
been established that those freedoms themselves are dependent upon the power of
the constitutional Government to survive. If it is to survive, it must have power to
protect itself against unlawful conduct and under some circumstances against
incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend
the right to speak on any subject at any time. In the case of Schenck v. United
States 63 L ed 1173, the Court held:
The character of every act depends upon the circumstances in which it is done. The most
stringent protection of free speech would not protect a man in falsely shouting fire in a
theatre and causing a panic. It does not even protect a man from an injunction against
uttering words that have all the effect of force....the question in every case is whether
the words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent.
(Constitution of India, (2nd Edn.), Volume 1 by Dr. L.M. Singhvi)
6. In contradistinction to the above approach of the US Supreme Court, the Indian
Constitution spells out the right to freedom of speech and expression under
Article 19(1)(a). It also provides the right to assemble peacefully and without arms to
every citizen of the country under Article 19(1)(a). However, these rights are not free
from any restrictions and are not absolute in their terms and application.
Articles 19(2) and 19(1)(a), respectively, control the freedoms available to a citizen.
Article 19(2) empowers the State to impose reasonable restrictions on exercise of the
right to freedom of speech and expression in the interest of the factors stated in the
said clause. Similarly, Article 19(3) enables the State to make any law imposing
reasonable restrictions on the exercise of the right conferred, again in the interest of
the factors stated therein.
7. In face of this constitutional mandate, the American doctrine adumbrated in
Schenck's case (supra) cannot be imported and applied. Under our Constitution, this
right is not an absolute right but is subject to the above-noticed restrictions. Thus, the
position under our Constitution is different.
8. In 'Constitutional Law of India' by H.M. Seervai (Fourth Edn.), Vol.1, the author has
noticed that the provisions of the two Constitutions as to freedom of speech and
expression are essentially different. The difference being accentuated by the provisions
of the Indian Constitution for preventive detention which have no counterpart in the
US Constitution. Reasonable restriction contemplated under the Indian Constitution
brings the matter in the domain of the court as the question of reasonableness is a

question primarily for the Court to decide. Babulal Parate v. State of Maharashtra :
(1961) 3 SCR 423.
9. The fundamental right enshrined in the Constitution itself being made subject to
reasonable restrictions, the laws so enacted to specify certain restrictions on the right
to freedom of speech and expression have to be construed meaningfully and with the
constitutional object in mind. For instance, the right to freedom of speech and
expression is not violated by a law which requires that name of the printer and
publisher and the place of printing and publication should be printed legibly on every
book or paper.
10. Thus, there is a marked distinction in the language of law, its possible
interpretation and application under the Indian and the US laws. It is significant to
note that the freedom of speech is the bulwark of democratic Government. This
freedom is essential for proper functioning of the democratic process. The freedom of
speech and expression is regarded as the first condition of liberty. It occupies a
preferred position in the hierarchy of liberties, giving succour and protection to all
other liberties. It has been truly said that it is the mother of all other liberties.
Freedom of speech plays a crucial role in the formation of public opinion on social,
political and economic matters. It has been described as a "basic human right", "a
natural right" and the like. With the development of law in India, the right to freedom
of speech and expression has taken within its ambit the right to receive information as
well as the right of press.
11. In order to effectively consider the rival contentions raised and in the backdrop of
the factual matrix, it will be of some concern for this Court to examine the
constitutional scheme and the historical background of the relevant Articles relating to
the right to freedom of speech and expression in India. The framers of our
Constitution, in unambiguous terms, granted the right to freedom of speech and
expression and the right to assemble peaceably and without arms. This gave to the
citizens of this country a very valuable right, which is the essence of any democratic
system. There could be no expression without these rights. Liberty of thought enables
liberty of expression. Belief occupies a place higher than thought and expression.
Belief of people rests on liberty of thought and expression. Placed as the three angles
of a triangle, thought and expression would occupy the two corner angles on the
baseline while belief would have to be placed at the upper angle. Attainment of the
preambled liberties is eternally connected to the liberty of expression. (Ref. Preamble,
The Spirit and Backbone of the Constitution of India, by Justice R.C. Lahoti). These
valuable fundamental rights are subject to restrictions contemplated under
Articles 19(2) and 19(3), respectively. Article19(1) was subjected to just one
amendment, by the Constitution (44th Amendment) Act, 1979, vide which
Article 19(1)(f) was repealed. Since the Parliament felt the need of amending
Article 19(2) of the Constitution, it was substituted by the Constitution (First
Amendment) Act, 1951 with retrospective effect. Article 19(2)was subjected to
another amendment and vide the Constitution (Sixteenth Amendment) Act, 1963, the
expression "sovereignty and integrity of India" was added. The pre-amendment Article
had empowered the State to make laws imposing reasonable restrictions in exercise of

the rights conferred under Article 19(1)(a) in the interest of the security of the State,
friendly relations with foreign states, public order, decency or morality or in relation to
contempt of court, defamation or incitement of an offence. To introduce a more
definite dimension with regard to the sovereignty and integrity of India, this
Amendment was made. It provided the right spectrum in relation to which the State
could enact a law to place reasonable restrictions upon the freedom of speech and
expression.
12. This shows that the State has a duty to protect itself against certain unlawful
actions and, therefore, may enact laws which would ensure such protection. The right
that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any
liberty absolute in nature and uncontrolled in operation so as to confer a right wholly
free from any restraint. Had there been no restraint, the rights and freedoms may
become synonymous with anarchy and disorder. (Ref.: State of West
Bengal v. Subodh Gopal Bose : AIR 1954 SC 92).
13. I consider it appropriate to examine the term 'liberty', which is subject to
reasonable restrictions, with reference to the other constitutional rights. Article 21is
the foundation of the constitutional scheme. It grants to every person the right to life
and personal liberty. This Article prescribes a negative mandate that no person shall be
deprived of his life or personal liberty except according to the procedure established by
law. The procedure established by law for deprivation of rights conferred by this Article
must be fair, just and reasonable. The rules of justice and fair play require that State
action should neither be unjust nor unfair, lest it attracts the vice of unreasonableness,
thereby vitiating the law which prescribed that procedure and, consequently, the
action taken thereunder.
14. Any action taken by a public authority which is entrusted with the statutory power
has, therefore, to be tested by the application of two standards - first, the action must
be within the scope of the authority conferred by law and, second, it must be
reasonable. If any action, within the scope of the authority conferred by law is found
to be unreasonable, it means that the procedure established under which that action is
taken is itself unreasonable. The concept of 'procedure established by law' changed its
character after the judgment of this Court in the case of Maneka Gandhi v. UOI :
AIR 1978 SC 597, where this Court took the view as under:
The principle of reasonableness, which legally as well as philosophically is an essential
element of equality or non arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be right and just and fair and not arbitrary fanciful or
oppressive otherwise it would be no procedure at all and the requirement of
Article 21 would not be satisfied.
This was also noted in the case of Madhav Hayawadanrao Hoskot v. State of
Maharashtra : (1978) 3 SCC 544 where this Court took the following view:

Procedure established by law are words of deep meaning for all lovers of liberty and
judicial sentinels.
15. What emerges from the above principles, which has also been followed in a catena
of judgments of this Court, is that the law itself has to be reasonable and furthermore,
the action under that law has to be in accordance with the law so established. Nonobservance of either of this can vitiate the action, but if the former is invalid, the latter
cannot withstand.
16. Article 13 is a protective provision and an index of the importance and preference
that the framers of the Constitution gave to Part III. In terms of Article13(1), the laws
in force before the commencement of the Constitution, in so far as they were
inconsistent with the provisions of that Part were, to the extent of such inconsistency,
void. It also fettered the right of the State in making laws. The State is not to make
any law which takes away or abridges the rights conferred by this Part and if such law
is made then to the extent of conflict, it would be void. In other words, except for the
limitations stated in the Articles contained in Part III itself and Article 13(4) of the
Constitution, this Article is the reservoir of the fundamental protections available to
any person/citizen.
17. While these are the guaranteed fundamental rights, Article 38, under the Directive
Principles of State Policy contained in Part IV of the Constitution, places a
constitutional obligation upon the State to strive to promote the welfare of the people
by securing and protecting, as effectively as it may, a social order in which justice social, economic and political - shall inform all the institutions of the national life.
Article 37 makes the Directive Principles of State Policy fundamental in governance of
the country and provides that it shall be the duty of the State to apply these principles
in making laws.
18. With the development of law, even certain matters covered under this Part relating
to Directive Principles have been uplifted to the status of fundamental rights, for
instance, the right to education. Though this right forms part of the Directive Principles
of State Policy, compulsory and primary education has been treated as a part of
Article 21 of the Constitution of India by the courts, which consequently led to the
enactment of the Right of Children to Free and Compulsory Education Act, 2010.
19. Article 51A deals with the fundamental duties of the citizens. It, inter alia,
postulates that it shall be the duty of every citizen of India to abide by the
Constitution, to promote harmony and the spirit of common brotherhood, to safeguard
public property and to abjure violence.
20. Thus, a common thread runs through Parts III, IV and IVA of the Constitution of
India. One Part enumerates the fundamental rights, the second declares the
fundamental principles of governance and the third lays down the fundamental duties
of the citizens. While interpreting any of these provisions, it shall always be advisable
to examine the scope and impact of such interpretation on all the three constitutional
aspects emerging from these parts. It is necessary to be clear about the meaning of

the word "fundamental" as used in the expression "fundamental in the governance of

the State" to describe the directive principles which have not legally been made
enforceable.
21. As difficult as it is to anticipate the right to any freedom or liberty without any
reasonable restriction, equally difficult it is to imagine the existence of a right not
coupled with a duty. The duty may be a direct or indirect consequence of a fair
assertion of the right. Part III of the Constitution of India although confers rights, still
duties and restrictions are inherent thereunder. These rights are basic in nature and
are recognized and guaranteed as natural rights, inherent in the status of a citizen of a
free country, but are not absolute in nature and uncontrolled in operation. Each one of
these rights is to be controlled, curtailed and regulated, to a certain extent, by laws
made by the Parliament or the State Legislature. In spite of there being a general
presumption in favour of the constitutionality of a legislation under challenge alleging
violation of the right to freedom guaranteed by clause (1) of Article 19 of the
Constitution, on a prima facie case of such violation being made out, the onus shifts
upon the State to show that the legislation comes within the permissible restrictions
set out in clauses (2) to (6) of Article 19 and that the particular restriction is
reasonable. It is for the State to place on record appropriate material justifying the
restriction and its reasonability. Reasonability of restriction is a matter which squarely
falls within the power of judicial review of the Courts. Such limitations, therefore,
indicate two purposes; one that the freedom is not absolute and is subject to
regulatory measures and the second that there is also a limitation on the power of the
legislature to restrict these freedoms. The legislature has to exercise these powers
within the ambit of Article 19(2) of the Constitution.
22. Further, there is a direct and not merely implied responsibility upon the
Government to function openly and in public interest. The Right to Information itself
emerges from the right to freedom of speech and expression. Unlike an individual, the
State owns a multi-dimensional responsibility. It has to maintain and ensure security
of the State as well as the social and public order. It has to give utmost regard to the
right to freedom of speech and expression which a citizen or a group of citizens may
assert. The State also has a duty to provide security and protection to the persons
who wish to attend such assembly at the invitation of the person who is exercising his
right to freedom of speech or otherwise. In the case of S. Rangarajan v. Jagjivan
Ram : (1989) 2 SCC 574, this Court noticed as under:
45. The problem of defining the area of freedom of expression when it appears to conflict
with the various social interests enumerated under Article 19(2) may briefly be touched
upon here. There does indeed have to be a compromise between the interest of freedom
of expression and special interests. But we cannot simply balance the two interests as if
they are of equal weight. Our commitment of freedom of expression demands that it
cannot be suppressed unless the situations created by allowing the freedom are pressing
and the community interest is endangered. The anticipated danger should not be
remote, conjectural or far-fetched. It should have proximate and direct nexus with the
expression. The expression of thought should be intrinsically dangerous to the public

interest. In other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a "spark in a power keg".
23. Where the Court applies the test of 'proximate and direct nexus with the
expression', the Court also has to keep in mind that the restriction should be founded
on the principle of least invasiveness i.e. the restriction should be imposed in a
manner and to the extent which is unavoidable in a given situation. The Court would
also take into consideration whether the anticipated event would or would not be
intrinsically dangerous to public interest.
24. Now, I would examine the various tests that have been applied over the period of
time to examine the validity and/or reasonability of the restrictions imposed upon the
rights. Upon the Rights Enshrined in the Constitution
25. No person can be divested of his fundamental rights. They are incapable of being
taken away or abridged. All that the State can do, by exercise of its legislative power,
is to regulate these rights by imposition of reasonable restrictions on them. Upon an
analysis of the law, the following tests emerge:
a) The restriction can be imposed only by or under the authority of law. It
cannot be imposed by exercise of executive power without any law to back it
up.
b) Each restriction must be reasonable.
c) A restriction must be related to the purpose mentioned in Article 19(2).
26. The questions before the Court, thus, are whether the restriction imposed was
reasonable and whether the purported purpose of the same squarely fell within the
relevant clauses discussed above. The legislative determination of what restriction to
impose on a freedom is final and conclusive, as it is not open to judicial review. The
judgments of this Court have been consistent in taking the view that it is difficult to
define or explain the word "reasonable" with any precision. It will always be dependent
on the facts of a given case with reference to the law which has been enacted to
create a restriction on the right. It is neither possible nor advisable to state any
abstract standard or general pattern of reasonableness as applicable uniformly to all
cases. This Court in the case of State of Madras v.V.G. Row : AIR 1952 SC 196
held:
It is important in this context to bear in mind that the test of reasonableness, whereever
prescribed, should be applied to each individual statute impugned, and no abstract
standard or general pattern of reasonableness, can be laid down as applicable to all
cases.
27. For adjudging the reasonableness of a restriction, factors such as the duration and
extent of the restrictions, the circumstances under which and the manner in which that
imposition has been authorized, the nature of the right infringed, the underlining
purpose of the restrictions imposed, the extent and urgency of the evil sought to be

remedied thereby, the disproportion of the imposition, the prevailing conditions at the
time, amongst others, enter into the judicial verdict. (See: Chintamanrao and
Anr. v. State of Madhya Pradesh : AIR 1951 SC 118).
28. The courts must bear a clear distinction in mind with regard to 'restriction' and
'prohibition'. They are expressions which cannot be used inter-changeably as they
have different connotations and consequences in law. Wherever a 'prohibition' is
imposed, besides satisfying all the tests of a reasonable 'restriction', it must also
satisfy the requirement that any lesser alternative would be inadequate. Furthermore,
whether a restriction, in effect, amounts to a total prohibition or not, is a question of
fact which has to be determined with regard to facts and circumstances of each case.
This Court in the case of State of Gujarat v.Mirzapur Moti Kureshi Kassab Jamat
and Ors. (2005) 8 SCC 534 held as under:
75. Three propositions are well settled: (i) 'restriction' includes cases of 'prohibition'; (ii)
the standard for judging reasonability of restriction or restriction amounting to
prohibition remains the same, excepting that a total prohibition must also satisfy the test
that a lesser alternative would be inadequate; and (iii) whether a restriction in effect
amounts to a total prohibition is a question of fact which shall have to be determined
with regard to the facts and circumstances of each case, the ambit of the right and the
effect of the restriction upon the exercise of that right....
29. The obvious result of the above discussion is that a restriction imposed in any form
has to be reasonable and to that extent, it must stand the scrutiny of judicial review.
It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with
the object sought to be achieved. Whenever and wherever any restriction is imposed
upon the right to freedom of speech and expression, it must be within the framework
of the prescribed law, as subscribed by Article19(2) of the Constitution.
30. As already noticed, rights, restrictions and duties co-exist. As, on the one hand, it
is necessary to maintain and preserve the freedom of speech and expression in a
democracy, there, on the other, it is also necessary to place reins on this freedom for
the maintenance of social order. The term 'social order' has a very wide ambit. It
includes 'law and order', 'public order' as well as 'the security of the State'. The
security of the State is the core subject and public order as well as law and order
follow the same. In the case of Romesh Thappar v. State of Madras : 1950 SCR
594, this Court took the view that local breaches of public order were no grounds for
restricting the freedom of speech guaranteed by the Constitution. This led to the
Constitutional (First Amendment) Act, 1951 and consequently, this Court in the case
of Dr. Ram Manohar Lohia v. State of Bihar : AIR 1966 SC 740 stated that an
activity which affects 'law and order' may not necessarily affect 'public order' and an
activity which might be prejudicial to 'public order' may not necessarily affect 'security
of the State'. Absence of 'public order' is an aggravated form of disturbance of public
peace which affects the general current of public life. Any act which merely affects the
security of others may not constitute a breach of 'public order'.

31. The expression 'in the interest of' has given a wide amplitude to the permissible
law which can be enacted to impose reasonable restrictions on the rights guaranteed
by Article 19(1) of the Constitution.
32. There has to be a balance and proportionality between the right and restriction on
the one hand, and the right and duty, on the other. It will create an imbalance, if
undue or disproportionate emphasis is placed upon the right of a citizen without
considering the significance of the duty. The true source of right is duty. When the
courts are called upon to examine the reasonableness of a legislative restriction on
exercise of a freedom, the fundamental duties enunciated under Article 51A are of
relevant consideration. Article 51A requires an individual to abide by the law, to
safeguard public property and to abjure violence. It also requires the individual to
uphold and protect the sovereignty, unity and integrity of the country. All these duties
are not insignificant. Part IV of the Constitution relates to the Directive Principles of
the State Policy. Article 38 was introduced in the Constitution as an obligation upon the
State to maintain social order for promotion of welfare of the people. By the
Constitution (Forty-Second Amendment) Act, 1976, Article 51A was added to
comprehensively state the fundamental duties of the citizens to compliment the
obligations of the State. Thus, all these duties are of constitutional significance. It is
obvious that the Parliament realized the need for inserting the fundamental duties as a
part of the Indian Constitution and required every citizen of India to adhere to those
duties. Thus, it will be difficult for any Court to exclude from its consideration any of
the above-mentioned Articles of the Constitution while examining the validity or
otherwise of any restriction relating to the right to freedom of speech and expression
available to a citizen under Article 19(1)(a) of the Constitution. The restriction placed
on a fundamental right would have to be examined with reference to the concept of
fundamental duties and non-interference with liberty of others. Therefore, a restriction
on the right to assemble and raise protest has also to be examined on similar
parameters and values. In other words, when you assert your right, you must respect
the freedom of others. Besides imposition of a restriction by the State, the noninterference with liberties of others is an essential condition for assertion of the right
to freedom of speech and expression. In the case of Dr. D.C. Saxena v. Hon'ble the
Chief Justice of India : (1996) 5 SCC 216, this Court held:
31. If maintenance of democracy is the foundation for free speech, society equally is
entitled to regulate freedom of speech or expression by democratic action. The reason is
obvious, viz., that society accepts free speech and expression and also puts limits on the
right of the majority. Interest of the people involved in the acts of expression should be
looked at not only from the perspective of the speaker but also the place at which he
speaks, the scenario, the audience, the reaction of the publication, the purpose of the
speech and the place and the forum in which the citizen exercises his freedom of speech
and expression. The State has legitimate interest, therefore, to regulate the freedom of
speech and expression which liberty represents the limits of the duty of restraint on
speech or expression not to utter defamatory or libellous speech or expression. There is
a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of
person and of reputation. Nobody has a right to denigrate others' right to person or
reputation. Therefore, freedom of speech and expression is tolerated so long as it is not

malicious or libellous, so that all attempts to foster and ensure orderly and peaceful
public discussion or public good should result from free speech in the market-place. If
such speech or expression was untrue and so reckless as to its truth, the speaker or the
author does not get protection of the constitutional right.
33. Every right has a corresponding duty. Part III of the Constitution of India although
confers rights and duties, restrictions are inherent thereunder. Reasonable Regulations
have been found to be contained in the provisions of Part III of the Constitution of
India, apart from clauses (2) to (4) and (6) of Article 19 of the Constitution
(See Union of India v. Naveen Jindal and Anr. : (2004) 2 SCC 510).
34. As I have already discussed, the restriction must be provided by law in a manner
somewhat distinct to the term 'due process of law' as contained in Article 21of the
Constitution. If the orders passed by the Executive are backed by a valid and effective
law, the restriction imposed thereby is likely to withstand the test of reasonableness,
which requires it to be free of arbitrariness, to have a direct nexus to the object and to
be proportionate to the right restricted as well as the requirement of the society, for
example, an order passed under Section 144 Code of Criminal Procedure. This order is
passed on the strength of a valid law enacted by the Parliament. The order is passed
by an executive authority declaring that at a given place or area, more than five
persons cannot assemble and hold a public meeting. There is a complete channel
provided for examining the correctness or otherwise of such an order passed under
Section 144 Code of Criminal Procedure and, therefore, it has been held by this Court
in a catena of decisions that such order falls within the framework of reasonable
restriction.
35. The distinction between 'public order' and 'law and order' is a fine one, but
nevertheless clear. A restriction imposed with 'law and order' in mind would be least
intruding into the guaranteed freedom while 'public order' may qualify for a greater
degree of restriction since public order is a matter of even greater social concern. Out
of all expressions used in this regard, as discussed in the earlier part of this judgment,
'security of the state' is the paramount and the State can impose restrictions upon the
freedom, which may comparatively be more stringent than those imposed in relation
to maintenance of 'public order' and 'law and order'. However stringent may these
restrictions be, they must stand the test of 'reasonability'. The State would have to
satisfy the Court that the imposition of such restrictions is not only in the interest of
the security of the State but is also within the framework of Articles 19(2) and 19(3) of
the Constitution.
36. It is keeping this distinction in mind, the Legislature, under Section 144 Code of
Criminal Procedure., has empowered the District Magistrate, Sub- Divisional Magistrate
or any other Executive Magistrate, specially empowered in this behalf, to direct any
person to abstain from doing a certain act or to take action as directed, where
sufficient ground for proceeding under this Section exists and immediate prevention
and/or speedy remedy is desirable. By virtue of Section 144ACode of Criminal
Procedure., which itself was introduced by Act 25 of 2005, the District Magistrate has
been empowered to pass an order prohibiting, in any area within the local limits of his

jurisdiction, the carrying of arms in any procession or the organizing or holding of any
mass drill or mass training with arms in any public place, where it is necessary for him
to do so for the preservation of public peace, public safety or maintenance of the
public order. Section 144 Code of Criminal Procedure, therefore, empowers an
executive authority, backed by these provisions, to impose reasonable restrictions vis-vis the fundamental rights. The provisions of Section 144 Code of Criminal
Procedure. provide for a complete mechanism to be followed by the Magistrate
concerned and also specify the limitation of time till when such an order may remain in
force. It also prescribes the circumstances that are required to be taken into
consideration by the said authority while passing an order under Section 144 Code of
Criminal Procedure.
37. In Babu Lal Parate (supra) where this Court was concerned with the contention
raised on behalf of the union of workers that the order passed in anticipation by the
Magistrate under Section 144 Code of Criminal Procedure. was an encroachment on
their rights under Articles 19(1)(a) and 19(1)(b), it was held that the provisions of the
Section, which commit the power in this regard to a Magistrate belonging to any of the
classes referred to therein cannot be regarded as unreasonable. While examining the
law in force in the United States, the Court further held that an anticipatory action of
the kind permissible under Section 144Code of Criminal Procedure. is not
impermissible within the ambit of clauses (2) and (3) of Article 19. Public order has to
be maintained at all times, particularly prior to any event and, therefore, it is
competent for the legislature to pass a law permitting the appropriate authority to
take anticipatory action or to place anticipatory restrictions upon particular kind of acts
in an emergency for the purpose of maintaining public order.
38. In the case of Madhu Limaye v. Sub Divisional Magistrate and Ors. AIR 1971
SC 2481, a Constitution Bench of this Court took the following view:
24. The procedure to be followed is next stated. Under Sub-section (2) if time
does not permit or the order cannot be served, it can be made ex parte. Under
Sub-section (3) the order may be directed to a particular individual or to the
public generally when frequenting or visiting a particular place. Under Subsection (4) the Magistrate may either suo motu or on an application by an
aggrieved person, rescind or alter the order whether his own or by a Magistrate
subordinate to him or made by his predecessor in Office. Under Sub-section (5)
where the magistrate is moved by a person aggrieved he must hear him so
that he may show cause against the order and if the Magistrate rejects wholly
or in part the application, he must record his reasons in writing. This Subsection is mandatory. An order by the Magistrate does not remain in force after
two months from the making thereof but the State Government may, however,
extend the period by a notification in the Gazette but, only in cases of danger
to human life, health or safety or where there is a likelihood of a riot or an
affray. But the second portion of the Sub-section was declared violative of
Article19 in State of Bihar v. K.K. Misra (1969) S.C.R. 337. It may be
pointed out here that disobedience of an order lawfully promulgated is made an
offence by Section 188 of the Indian Penal Code, if such disobedience causes

obstruction, annoyance or injury to persons lawfully employed. It is punishable

with simple imprisonment for one month or fine of Rs. 200 or both.
25. The gist of action under Section 144 is the urgency of the situation, its
efficacy in the likelihood of being able to prevent some harmful occurrences. As
it is possible to act absolutely and even ex parte it is obvious that the
emergency must be sudden and the consequences sufficiently grave. Without it
the exercise of power would have no justification. It is not an ordinary power
flowing from administration but a power used in a judicial manner and which
can stand further judicial scrutiny in the need for the exercise of the power, in
its efficacy and in the extent of its application. There is no general proposition
that an order under Section 144, Criminal Procedure Code cannot be passed
without taking evidence : see Mst. Jagrupa Kumari v. Chotay Narain
Singh (1936) 37 Cri.L.J. 95 (Pat) which in our opinion is correct in laying down
this proposition. These fundamental facts emerge from the way the occasions
for the exercise of the power are mentioned. Disturbances of public tranquility,
riots and affray lead to subversion of public order unless they are prevented in
time. Nuisances dangerous to human life, health or safety have no doubt to be
abated and prevented. We are, however, not concerned with this part of the
section and the validity of this part need not be decided here. In so far as the
other parts of the section are concerned the key-note of the power is to free
society from menace of serious disturbances of a grave character. The section
is directed against those who attempt to prevent the exercise of legal rights by
others or imperil the public safety and health. If that be so the matter must fall
within the restrictions which the Constitution itself visualises as permissible in
the interest of public order, or in the interest of the general public. We may say,
however, that annoyance must assume sufficiently grave proportions to bring
the matter within interests of public order.
26. The criticism, however, is that the section suffers from over broadness and
the words of the section are wide enough to give an absolute power which may
be exercised in an unjustifiable case and then there would be no remedy
except to ask the Magistrate to cancel the order which he may not do. Revision
against his determination to the High Court may prove illusory because before
the High Court can intervene the mischief will be done. Therefore, it is
submitted that an inquiry should precede the making of the order. In other
words, the burden should not be placed upon the person affected to clear his
position. Further the order may be so general as to affect not only a particular
party but persons who are innocent, as for example when there is an order
banning meetings, processions, playing of music etc.
27. The effect of the order being in the interest of public order and the
interests of the general public, occasions may arise when it is not possible to
distinguish between those whose conduct must be controlled and those whose
conduct is clear. As was pointed out in Babulal Parate case where two rival
trade unions clashed and it was difficult to say whether a person belonged to

one of the unions or to the general public, an order restricting the activities of
the general public in the particular area was justified.
28....A general order may be necessary when the number of persons is so
large that distinction between them and the general public cannot be made
without the risks mentioned in the section. A general order is thus justified but
if the action is too general the order may be questioned by appropriate
remedies for which there is ample provision in the law.
39. In the case of Himat Lal K. Shah v. Commissioner of Police, Ahmedabad and
Anr. : (1973) 1 SCC 227, again a Constitution Bench of this Court, while dealing with
a situation where a person seeking permission to hold a public meeting was denied the
same on the ground that under another similar permission, certain elements had
indulged in rioting and caused mischief to private and public properties, held Rule 7
framed under the Bombay Police Act, 1951 as being arbitrary and observed as under:
...It is not surprising that the Constitution makers conferred a fundamental
right on all citizens 'to assemble peaceably and without arms'. While prior to
the coming into force of the Constitution the right to assemble could have been
abridged or taken away by law, now that cannot be done except by imposing
reasonable restrictions within Article 19(3). But it is urged that the right to
assemble does not mean that that right can be exercised at any and every
place. This Court held in Railway Board v. Narinjan Singh ; 554 :: (1969) 3
SCR 548: (1969)1 SCC 502 that there is no fundamental right for any one to
hold meetings in government premises. It was observed:
The fact that the citizens of this country have freedom of speech, freedom to assemble
peaceably and freedom to form associations or unions does not mean that they can
exercise those freedoms in whatever place they please.
40. Section 144 Code of Criminal Procedure. is intended to serve public purpose and
protect public order. This power vested in the executive is to be invoked after the
satisfaction of the authority that there is need for immediate prevention or that speedy
remedy is desirable and directions as contemplated are necessary to protect the
interest of others or to prevent danger to human life, health or safety or disturbance of
public tranquility or a riot or an affray. These features must co-exist at a given point of
time in order to enable the authority concerned to pass appropriate orders. The
expression 'law and order' is a comprehensive expression which may include not
merely 'public order' but also matters such as 'public peace', 'public tranquility' and
'orderliness' in a locality or a local area and perhaps some other matters of public
concern too. 'Public order' is something distinct from order or orderliness in a local
area. Public order, if disturbed, must lead to public disorder whereas every breach of
peace may not always lead to public disorder. This concept came to be illustratively
explained in the judgment of this Court in the case of Dr. Ram Manohar Lohia (supra)
wherein it was held that when two drunkards quarrel and fight, there is 'disorder' but
not 'public disorder'. They can be dealt with under the powers to maintain 'law and
order' but cannot be detained on the ground that they were disturbing 'public order'.

However, where the two persons fighting were of rival communities and one of them
tried to raise communal passions, the problem is still one of 'law and order' but it
raises the apprehension of public disorder. The main distinction is that where it affects
the community or public at large, it will be an issue relatable to 'public order'.
Section 144 Code of Criminal Procedure. empowers passing of such order in the
interest of public order equitable to public safety and tranquility. The provisions of
Section 144 Code of Criminal Procedure. empowering the authorities to pass orders to
tend to or to prevent the disturbances of public tranquility is not ultra vires the
Constitution.
41. In the case of State of Karnataka v. Dr. Praveen Bhai Thogadia : (2004) 4
SCC 684, this Court, while observing that each person, whatever be his religion, must
get the assurance from the State that he has the protection of law freely to profess,
practice and propagate his religion and the freedom of conscience, held more
emphatically that the courts should not normally interfere with matters relating to law
and order which is primarily the domain of the concerned administrative authorities.
They are by and large the best to assess and handle the situation depending upon the
peculiar needs and necessities within their special knowledge.
42. The scope of Section 144 Code of Criminal Procedure. enumerates the principles
and declares the situations where exercise of rights recognized by law, by one or few,
may conflict with other rights of the public or tend to endanger the public peace,
tranquility and/or harmony. The orders passed under Section 144Code of Criminal
Procedure. are attempted to serve larger public interest and purpose. As already
noticed, under the provisions of the Code of Criminal Procedure. complete procedural
mechanism is provided for examining the need and merits of an order passed under
Section 144 Code of Criminal Procedure. If one reads the provisions of
Section 144 Code of Criminal Procedure. along with other constitutional provisions and
the judicial pronouncements of this Court, it can undisputedly be stated that
Section 144 Code of Criminal Procedure. is a power to be exercised by the specified
authority to prevent disturbance of public order, tranquility and harmony by taking
immediate steps and when desirable, to take such preventive measures. Further, when
there exists freedom of rights which are subject to reasonable restrictions, there are
contemporaneous duties cast upon the citizens too. The duty to maintain law and
order lies on the concerned authority and, thus, there is nothing unreasonable in
making it the initial judge of the emergency. All this is coupled with a fundamental
duty upon the citizens to obey such lawful orders as well as to extend their full
cooperation in maintaining public order and tranquility.
43. The concept of orderly conduct leads to a balance for assertion of a right to
freedom. In the case of Feiner v. New York (1951) 340 U.S. 315, the Supreme Court
of the United States of America dealt with the matter where a person had been
convicted for an offence of disorderly conduct for making derogatory remarks
concerning various persons including the President, political dignitaries and other local
political officials during his speech, despite warning by the Police officers to stop the
said speech. The Court, noticing the condition of the crowd as well as the refusal by
the Petitioner to obey the Police requests, found that the conduct of the convict was in

violation of public peace and order and the authority did not exceed the bounds of
proper state Police action, held as under:
It is one thing to say that the Police cannot be used as an instrument for the suppression
of unpopular views, and another to say that, when as here the speaker passes the
bounds of arguments or persuasion and undertakes incitement to riot, they are
powerless to prevent a breach of the peace. Nor in this case can we condemn the
considered judgment of three New York courts approving the means which the Police,
faced with a crisis, used in the exercise of their power and duty to preserve peace and
order. The findings of the state courts as to the existing situation and the imminence of
greater disorder couples with Petitioner's deliberate defiance of the Police officers
convince us that we should not reverse this conviction in the name of free speech.
44. Another important precept of exercise of power in terms of Section 144 Code of
Criminal Procedure. is that the right to hold meetings in public places is subject to
control of the appropriate authority regarding the time and place of the meeting.
Orders, temporary in nature, can be passed to prohibit the meeting or to prevent an
imminent breach of peace. Such orders constitute reasonable restriction upon the
freedom of speech and expression. This view has been followed consistently by this
Court. To put it with greater clarity, it can be stated that the content is not the only
concern of the controlling authority but the time and place of the meeting is also well
within its jurisdiction. If the authority anticipates an imminent threat to public order or
public tranquility, it would be free to pass desirable directions within the parameters of
reasonable restrictions on the freedom of an individual. However, it must be borne in
mind that the provisions of Section 144 Code of Criminal Procedure. are attracted only
in emergent situations. The emergent power is to be exercised for the purposes of
maintaining public order. It was stated by this Court in Romesh Thapar (supra) that
the Constitution requires a line to be drawn in the field of public order and tranquility,
marking off, may be roughly, the boundary between those serious and aggravated
forms of public disorder which are calculated to endanger the security of the State and
the relatively minor breaches of peace of a purely local significance, treating for this
purpose differences in degree as if they were different in kind. The significance of
factors such as security of State and maintenance of public order is demonstrated by
the mere fact that the framers of the Constitution provided these as distinct topics of
legislation in Entry III of the Concurrent List of Seventh Schedule to the Constitution.
45. Moreover, an order under Section 144 Code of Criminal Procedure. being an order
which has a direct consequence of placing a restriction on the right to freedom of
speech and expression and right to assemble peaceably, should be an order in writing
and based upon material facts of the case. This would be the requirement of law for
more than one reason. Firstly, it is an order placing a restriction upon the fundamental
rights of a citizen and, thus, may adversely affect the interests of the parties, and
secondly, under the provisions of the Code of Criminal Procedure., such an order is
revisable and is subject to judicial review. Therefore, it will be appropriate that it must
be an order in writing, referring to the facts and stating the reasons for imposition of
such restriction. In the case of Dr. Praveen Bhai Thogadia (supra), this Court took the
view that the Court, while dealing with such orders, does not act like an appellate

authority over the decision of the official concerned. It would interfere only where the
order is patently illegal and without jurisdiction or with ulterior motive and on
extraneous consideration of political victimization by those in power. Normally,
interference should be the exception and not the rule.
46. A bare reading of Section 144 Code of Criminal Procedure. shows that:
(1) It is an executive power vested in the officer so empowered;
(2) There must exist sufficient ground for proceeding;
(3) Immediate prevention or speedy remedy is desirable; and
(4) An order, in writing, should be passed stating the material facts and be
served the same upon the concerned person.
47. These are the basic requirements for passing an order under Section 144 Code of
Criminal Procedure. Such an order can be passed against an individual or persons
residing in a particular place or area or even against the public in general. Such an
order can remain in force, not in excess of two months. The Government has the
power to revoke such an order and wherever any person moves the Government for
revoking such an order, the State Government is empowered to pass an appropriate
order, after hearing the person in accordance with Sub-section (3) of Section 144 Code
of Criminal Procedure. Out of the aforestated requirements, the requirements of
existence of sufficient ground and need for immediate prevention or speedy remedy is
of prime significance. In this context, the perception of the officer recording the
desired/contemplated satisfaction has to be reasonable, least invasive and bona fide.
The restraint has to be reasonable and further must be minimal. Such restraint should
not be allowed to exceed the constraints of the particular situation either in nature or
in duration. The most onerous duty that is cast upon the empowered officer by the
legislature is that the perception of threat to public peace and tranquility should be
real and not quandary, imaginary or a mere likely possibility. This Court in the case of
Babulal Parate (supra) had clearly stated the following view:
the language of Section 144 is somewhat different. The test laid down in the Section is
not merely 'likelihood' or 'tendency'. The section says that the magistrate must be
satisfied that immediate prevention of particular acts is necessary to counteract danger
to public safety etc. The power conferred by the section is exercisable not only where
present danger exists but is exercisable also when there is an apprehension of danger.
48. The above-stated view of the Constitution Bench is the unaltered state of law in
our country. However, it needs to be specifically mentioned that the 'apprehension of
danger' is again what can inevitably be gathered only from the circumstances of a
given case.
49. Once an order under Section 144 Code of Criminal Procedure. is passed, it is
expected of all concerned to implement the said order unless it has been rescinded or
modified by a forum of competent jurisdiction. Its enforcement has legal

consequences. One of such consequences would be the dispersement of an unlawful

assembly and, if necessitated, by using permissible force. An assembly which might
have lawfully assembled would be termed as an 'unlawful assembly' upon the passing
and implementation of such a preventive order. The empowered officer is also vested
with adequate powers to direct the dispersement of such assembly. In this direction,
he may even take the assistance of concerned officers and armed forces for the
purposes of dispersing such an assembly. Furthermore, the said officer has even been
vested with the powers of arresting and confining the persons and, if necessary,
punishing them in accordance with law in terms of Section 129 Code of Criminal
Procedure. An order under Section 144 Code of Criminal Procedure. would have an
application to an 'actual' unlawful assembly as well as a 'potential' unlawful assembly.
This is precisely the scope of application and enforcement of an order passed under
Section 144 Code of Criminal Procedure.
50. Having noticed the legal precepts applicable to the present case, it will be
appropriate to notice, at this stage, the factual matrix advanced by each of the parties
to the case before this Court. Ve rsion put forward by learned A micus Curiae.
51. In 2008, Baba Ramdev was the first person to raise the issue of black money
publically. The black money outside the country was estimated at total of Rs. 400 lakh
crore or nearly nine trillion US Dollar. On 27th February, 2011, an Anti-Corruption Rally
was held at Ramlila Maidan, New Delhi where more than one lakh persons are said to
have participated. The persons present at the rally included Baba Ramdev, Acharya
Balakrishna, Ram Jethmalani, Anna Hazare and many others. On 20th April, 2011, the
President of Bharat Swabhiman Trust, Delhi Pardesh submitted an application to the
MCD proposing to take Ramlila Maidan on rent, subject to the general terms and
conditions, for holding a yoga training camp for 4 to 5 thousand people between 1st
June, 2011 to 20th June, 2011. He had also submitted an application to the Deputy
Commissioner of Police (Central District) seeking permission for holding the Yoga
Training Camp which permission was granted by the DCP (Central District) vide his
letter dated 25th April, 2011. This permission was subject to the terms and conditions
stated therein. Permission letter dated 25th April, 2011 reads as under:
With reference to your letter No. Nil, dated 20.04.2011, on the subject cited above, I am
directed to inform you that your request for permission to organize Yoga Training Session
at Ramlila Ground from 01.06.2011 to 20.06.2011 by Bharat Swabhiman Trust Delhi
Pradesh has been considered and permission is granted for the same subject to the
conditions that there should not be any obstruction to the normal flow of traffic and
permission from land owing agency is obtained. Besides this, you will deploy sufficient
numbers of volunteers at the venue of the function. Further, you are requested to
comply with all the instructions given by Police authorities time to time failing which this
permission can be revoked at any time.
52. Continuing with his agitation for the return of black money to the country, Baba
Ramdev wrote a letter to the Prime Minister on 4th May, 2011 stating his intention to
go on a fast to protest against the Government's inaction in that regard. The
Government made attempts to negotiate with Baba Ramdev and to tackle the problem

on the terms, as may be commonly arrived at between the Government and Baba
Ramdev. This process started with effect from 19th May, 2011 when the Prime Minister
wrote a letter to Baba Ramdev asking him to renounce his fast. The Finance Minister
also wrote a letter to Baba Ramdev informing him about the progress in the matter.
53. On 23rd May, 2011, Baba Ramdev submitted an application for holding a dharna at
Jantar Mantar, which permission was also granted to him vide letter dated 24th May,
2011, which reads as follows:
With reference to your letter dated 23.05.2011, on the subject mentioned above. I have
been directed to inform you that you are permitted dharna/satyagrah at Jantar Mantar
on 04.06.2011 from 0800 hrs. to 1800 hrs. with a very limited gathering.
54. In furtherance to the aforesaid permission, it was clarified vide letter dated 26th
May, 2011 informing the organisers that the number of persons accompanying Baba
Ramdev should not exceed two hundred.
55. On 27th May, 2011, the DCP (Central District), on receiving the media reports
about Baba Ramdev's intention to organize a fast unto death at the Yoga Training
Camp, made further enquiries from Acharya Virendra Vikram requiring him to clarify
the actual purpose for such huge gathering. His response to this, vide letter dated
28th May, 2011, was that there would be no other programme at all, except residential
yoga camp. However, the Special Branch, Delhi Police also issued a special report
indicating that Baba Ramdev intended to hold indefinite hunger strike along with
30,000-35,000 supporters and that the organizers were further claiming that the
gathering would exceed one lakh.
56. According to Dr. Dhavan, the learned amicus curiae, there is still another angle to
this whole episode. When Baba Ramdev arrived at Delhi Airport on 1st June, 2011,
four senior ministers of the UPA Government met him at the Airport and tried to
persuade him not to pursue the said fast unto death since the Government had
already taken initiative on the issue of corruption.
57. In the meanwhile, large number of followers of Baba Ramdev had gathered at
Ramlila Maidan by the afternoon of 4th June, 2011. In the evening of that very day,
one of the Ministers who had met Baba Ramdev at the Airport, Mr. Kapil Sibal, made
public a letter from Baba Ramdev's camp calling off their agitation. This was not
appreciated by Baba Ramdev, as, according to him, the Government had not stood by
its commitments and, therefore, he hardened his position by declaring not to take
back his satyagraha until a proper Government Ordinance was announced in place of
forming a Committee. The ministers talked to Baba Ramdev in great detail but of no
avail. It is stated that even the Prime Minister had gone the extra mile to urge Baba
Ramdev not to go ahead with the hunger strike, promising him to find a "pragmatic
and practical" solution to tackle the issue of corruption. Various attempts were made
at different levels of the Government to resolve this issue amicably. Even a meeting of
the ministers with Baba Ramdev was held at Hotel Claridges. It was reported by the
Press/Media that many others supported the stand of Baba Ramdev. It was widely

reported that Mr. Sibal had said: "we hope he honours his commitment and honours
his fast. This Government has always reached out but can also rein in." The Press
reported the statement of the Chief Minister, Delhi as stated by the officials including
Police officers in the words:
action would be taken if Baba Ramdev's Yoga Shivir turns into an agitation field and
three-tier security arrangements have been made for the Shivir which is supported to
turn into a massive satyagraha". Even Anna's campaign endorsed Baba Ramdev's step.
In this background, on 4th June, 2011, Baba Ramdev's hunger strike began with the
motto of 'bhrashtachar mitao satyagraha, the key demands being the same as were
stated on 27th February, 2011.
58. As already noticed, Baba Ramdev had been granted permission to hold satyagraha
at Jantar Mantar, of course, with a very limited number of persons. Despite the
assurance given by Acharya Virendra Vikram, as noted above, the event was converted
into an Anshan and the crowd at the Ramlila Maidan swelled to more than fifty
thousand. No yoga training was held for the entire day. At about 1.00 p.m., Baba
Ramdev decided to march to Jantar Mantar for holding a dharna along with the entire
gathering. Keeping in view the fact that Jantar Mantar could not accommodate such a
large crowd, the permission dated 24/26th May, 2011 granted for holding the dharna
was withdrawn by the authorities. Certain negotiations took place between Baba
Ramdev and some of the ministers on telephone, but, Baba Ramdev revived his earlier
condition of time-bound action, an ordinance to bring black money back and the items
missing on his initial list of demands. At about 11.15 p.m., it is stated that Centre's
emissary reached Baba Ramdev at Ramlila Maidan with the letter assuring a law to
declare black money hoarded abroad as a national asset. The messenger kept his
mobile on so the Government negotiators could listen to Baba Ramdev and his aides.
The conversation with Baba Ramdev convinced the Government that Baba Ramdev will
not wind up his protest. At about 11.30 p.m., a team of Police, led by the Joint
Commissioner of Police, met Baba Ramdev and informed him that the permission to
hold the camp had been withdrawn and that he would be detained. At about 12.30
a.m., a large number of CRPF, Delhi Police force and Rapid Action Force personnel,
totaling approximately to 5000 (as stated in the notes of the Amicus. However, from
the record it appears to be 1200), reached the Ramlila Maidan. At this time, the
protestors were peacefully sleeping. Thereafter, at about 1.10 a.m., the Police reached
the dais/platform to take Baba Ramdev out, which action was resisted by his
supporters. At 1.25 a.m., Baba Ramdev jumped into the crowd from the stage and
disappeared amongst his supporters. He, thereafter, climbed on the shoulders of one
of his supporters, exhorting women to form a barricade around him. A scuffle between
the security forces and the supporters of Baba Ramdev took place and eight rounds of
teargas shells were fired. By 2.10 a.m., almost all the supporters had been driven out
of the Ramlila Maidan. The Police sent them towards the New Delhi Railway Station.
Baba Ramdev, who had disappeared from the dais earlier, was apprehended by the
Police near Ranjit Singh Flyover at about 3.40 a.m. At that time, he was dressed in
salwar-kameez with a dupatta over his beard. He was taken to the Airport guesthouse. It was planned by the Government to fly Baba Ramdev in a chopper from
Safdarjung Airport. However, at about 9.50 a.m. the Government shelved this plan

and put him in an Indian Air Force helicopter and flew him out of the Indira Gandhi
International Airport.
59. Learned amicus curiae has made two-fold submissions. One on 'facts and
pleadings' and the other on 'law'. I may now refer to some of the submissions made
on facts and pleadings.
60. The Ramlila Maidan provided an accurate barometer of the country's political mood
in 1960s and 1970s which can be gauged from an article dated 18th August, 2011 in
the Times of India, which stated as under:
It was in Ramlila Ground that Jai Prakash Narain along with prominent
Opposition leaders, addressed a mammoth rally on June 25, 1975, where he
urged the armed forces to revolt against Indira Gandhi's government. Quoting
Ramdhari Singh Dinkar, JP thundered, "Singhasan khali karo, ki janta aati hai
(Vacate the throne, for the people are here to claim it)". That very midnight,
Emergency was declared in the country.
Less than two years later, the ground was the venue for another Opposition
rally that many political commentators describe as epoch- changing. In
February 1977, more than a month before Emergency was lifted, Opposition
leaders led by Jagjivan Ram - his first public appearance after quitting the
Congress - Morarji Desai, Atal Bihari Vajpayee, Charan Singh and
Chandrashekar, held a joint rally. That the Ramlila Ground provided an accurate
barometer of the country's political mood in the 1960s and 70s can be gauged
from the fact that in 1972, just around three years before the JP rally, Indira
Gandhi addressed a huge rally here following India's victory over Pakistan in
the Bangladesh war. In 1965, again at a time when the country was at war with
Pakistan, it was from here that then Prime Minister Lal Bahadur Shastri gave
the slogan 'Jai Jawan Jai Kisan'.
According to Delhi historian, Ronald Vivian Smith, the Maidan was originally a
pond which was filled up in the early 1930s so that the annual Ramlila could be
shifted here from the flood plains behind Red Fort. It quickly became a popular
site for political meetings, with Gandhiji, Nehru, Sardar Patel and other top
nationalist leaders addressing rallies here. According to one account, as Jinnah
was holding a Muslim League rally here in 1945, he heard someone in the
crowd address him as 'Maulana'. He reacted angrily saying he was a political
leader and that honorific should never be used for him.
In the 1980s and 90s, the Boat Club became the preferred site for shows of
strength. But after the Narasimha Rao government banned all meetings there
during the tumultuous Ayodhya movement, the political spotlight returned to
the site where it originally belonged - the Ramlila Ground.
61. Amongst other things, it is a place of protests. In the Standing Order 309 issued
by the Police, it has been stated that "any gathering of over 50,000 should not be

permitted at Ramlila Maidan but should be offered the Burari grounds as an

alternative. If, however, the organizers select a park or an open area elsewhere in
Delhi, the same can be examined on merits."
62. Pointing out certain ambiguities and contradictions in various affidavits filed on
behalf of various officers of the Government and the Police, learned amicus curiae
pointed out certain factors by way of conclusions:
It may be concluded that
(i) the ground became a major protest area after the government abolished
rallies at the Boat Club.
(ii) The police's capacity for Ramlila is 50,000 but it limited Baba Ramdev's
meet to 5000.
(iii) The ground appears to be accommodative but with only one major exit and
entrance.
(iv) There are aspects of the material that show considerable mobilization. But
the figure of 5000 inside the tent is exaggerated.
(v) The numbers of people in the tent has varied but seems, according to the
Police 20,000 or so at the time of the incident.
But the Home Secretary suggests 60,000 which is an exaggeration.
(vi) The logs etc supplied seem a little haphazard, but some logs reflect
contemporary evidence which shows things to the courts notice especially.
63. However, it may be noticed by this Court that as per the version of the police,
point No. (ii) ought to be read as under:
The capacity for Ramlila Maidan is 50,000 but it limited Baba Ramdev's meet to 5000.
64. After noticing certain detailed facts in relation to the 'threat perception of Police'
and the 'Trust's perception', learned Amicus curiae has framed certain questions and
has given record-based information as follows:
(i) Crowd Peaceful and sleeping
6.1 The crowd entered the Ramlila Ground from one entrance without any
hassle and co- operatively (see CD marked CD003163" of 23 minutes @ 17
minutes) Police was screening each and every individual entering the premises.
On 04th June 2011 many TV new (sic) channel live coverage shows about two
kilometer long queue to enter the Maidan not even a single was armed, lathi or
baseball bats etc. (pg.8 Vol.2)

6.2 The crowd is already slept by 10.00-10.30 pm shown in newspaper

photogrtaphs of 05.06.2011 (see pg.9 Vol.1 and Annexure R-9 Pg. 37-38,
Vol.2) People requesting the Police with folded handed (Annexure R-9 Pg. 39
Vol.2) also recorded in CCTV camera's and in CD 004026 (marked is Item 19
pg. 39 Vol.10)
(ii) Did the Police enter abruptly to rescind order and remove Baba Ramdev.
6.3 The CD marked CD 003163" of 23 minutes on Police entry and Baba
Ramdev's reaction @ 10 minutes Baba requests that he should be arrested in
the morning with a warrant;
(iii) Did Baba Ramdev make an incitory speech ?
6.4 In general Baba Ramdev's speech carry aggressive issues but on
04.06.2011,
7 no provocation was made by Baba Ramdev in any manner
7 says he is read (sic - ready) to get arrested but his followers should not be
harmed;
7 asks his women supporters to form a security ring around him.
7 also request participants not to fight with Police and be calm.
7 also requests Police not to manhandle his supports. (CDs handed by Trust in
Court, the CD marked "CD003163" of 23 minutes @ 10 minute.)
(iv) Was the lathi charged (sic- charged) ordered? Were lathis used?
6.5 The Police itself admits use of water cannon and tear gas but denies
lathicharge "No lathi charge even ordered on public, no organized lathi charge
by Policeman @ Vol.3 Pg.8 pr. 30 and 33 at pg.8-9; but evidence shows that
lathi being used see Police beating people with Lathi's (vol.2 photographs at
pg.44-45) also in CD004026 marked item 19 pg. 39 Vol. 10 @ 47 minute
shows lathicharge
(v) Bricks
6.6 The CD marked R4-TIMEWISE-'B' - @1hr.11 min Police entering from the
back area and throwing bricks on the crowd inside the pandal;
(vi) Water cannon and Teargas
6.7 Initially Water cannon used after it proved ineffective tear gas fired towards
right side of the stage resulting a small fire Pr.33 pg. 9 Vol.III

(vii) Injuries
6.8 On injuries the figures are not clear as per Commissioner of Police, Delhi
Affidavit only two persons required hospitalization for surgery. (Annexure S
colly pg. 49-142 Vol.III) Injured Numbers Released Released Treatment on first
on day second day Public 48 41 05 Diagnosis/ persons First aid Policemen 38 7
Injury-sheets pre-dominantly indicate injuries received during the minor
stampede in one part of the enclosure
6.9 Newspaper the TOI gives the figure of 62 person injured and 29 of the
injured were discharged during the day in LNJP hospital. What about those who
were in other hospitals. Even there are many who failed to get recorded in the
list of injured or to approach hospital for the medical aid. Only 62 injured that
too without lathi charge.
6.9 It will also be (sic) demonstrate that
(i) The crowd does not appear to be armed in anway - not even with 'baseball'
bats.
(ii) The Police (sic - personnel) were throwing bricks.
(iii) Baba Ramdev was abruptly woken up.
(iv) The crowd was asleep.
(v) The Police used lathis.
(vi) The crowd also threw bricks.
(vii) The Police used tear gas around that time.
It is not clear what occurred first.
(viii) Water cannon was also used by the Police.
VII. Speech.
7.1 From the Videos of Zee News and ANI, it appears that Baba Ramdev
(i) exhorted people not to fight with Police.
(ii) arrest me in the morning with a warrant.
(iii) requesting first the women then young boys and then the old to make a
protective Kavach around him.

65. On these facts, it is the submission of learned amicus curiae that neither the
withdrawal of permissions for Ramlila Maidan and Jantar Mantar nor the imposition of
restriction by passing an order under Section 144 Code of Criminal Procedure. was for
valid and good cause/reason. On the contrary, it was for political and mala fide
reasons. The purpose was to somehow not permit the continuation of the peaceful
agitation at any of these places and for that reason, there was undue force used by
the Government. The entire exercise was violative of the rights of an individual. A
mere change in the number of persons present and an apprehension of the Police
could not be a reasonable ground for using teargas and lathi charge and thereby
unduly disturbing the people who were sleeping peacefully upto 1.00 a.m. on the night
of 4/5th June, 2011 at Ramlila Maidan. Referring to the affidavits of the Home
Secretary, the Chief Secretary, the Police officers and the documents on record, the
contention is that in these affidavits, the deponents do not speak what is true. The
imposition of restriction, passing of the order under Section 144 and the force and
brutality with which the persons present at the Ramlila Maidan were dispersed is
nothing but a show of power of the State as opposed to a citizen's right. Even the test
of 'in terrorum' requires to act in a manner and use such force which is least invasive
and is in due regard to the right to assemble and hold peaceful demonstration. The
threat perception of the authorities is more of a created circumstance to achieve the
ultimate goal of rendering the agitation and the anshan unsuccessful by colourable
exercise of State power.
66. It is also the contention of learned amicus that there are contradictions in the
affidavits filed by the Home Secretary, Respondent No. 1 and the Commissioner of
Police, Respondent No. 3. The affidavit of the Chief Secretary, Respondent No. 2,
cannot be relied upon as he pleads ignorance in relation to the entire episode at the
Ramlila Maidan. According to the Home Secretary, the Ministry of Home Affairs was
routinely monitoring the situation and it is not the practice of the Ministry to confirm
the grant of such permission. He also states that 60,000 persons came to the ground
as against the estimated entry of 4000 to 5000 people. While according to the affidavit
of the Police Commissioner, as a matter of practice, Delhi Police keeps the Ministry of
Home Affairs duly informed in such matters as the said Ministry, for obvious reasons,
is concerned about the preservation of law and order in the capital and carefully
monitors all situations dealing with public order and tranquility. From the affidavit of
the Commissioner of Police, it is also clear that he was continuously in touch with the
senior functionaries of the Ministry of Home Affairs and he kept them informed of the
decisions taken by the ACP and DCP to revoke the permission and promulgate the
prohibitory orders under Section 144 Code of Criminal Procedure.
67. Besides these contradictions, another very material fact is that the Home Minister,
Shri P. Chidambaram had made a press statement on 8th June, 2011, relevant part of
which reads:
A decision was taken that Shri Baba Ramdev would not be allowed to organise any
protest or undertake any fast-unto-death at Ramlila ground and that if he persisted in his
efforts to do so he would be directed to remove himself from Delhi.

68. Reference is also made to the statement of Minister of HRD Shri Kapil Sibal, who
had stated that the Government can rein in if persuasion fails.
69. Further, the contention is that these averments/reports have not been denied
specifically in any of the affidavits filed on behalf of the Government and Delhi Police.
The above statements and contradictions in the affidavits filed by these highly placed
Government officers should lead to a reasonable conclusion that the Police had only
carried out the decision, which was already taken by the Government. In these
circumstances, even if there was no direct evidence, the Court can deduce, as a
reasonable and inescapable inference from the facts proved, that exercise of power
was in bad faith. Reliance is placed upon the case of S. Pratap Singh v. The State of
Punjab : (1964) 4 SCR 733.
70. The affidavits filed on behalf of the Police and the Ministry of Home Affairs are at
some variance. The variance is not of the nature that could persuade this Court to hold
that these affidavits are false or entirely incorrect. This Court cannot lose sight of a
very material fact that maintenance of law and order in a city like Delhi is not an easy
task. Some important and significant decisions which may invite certain criticism, have
to be taken by the competent authorities for valid reasons and within the framework of
law. The satisfaction of the authority in such decisions may be subjective, but even
this subjective satisfaction has to be arrived at objectively and by taking into
consideration the relevant factors as are contemplated under the provisions of
Section 144 Code of Criminal Procedure. Some freedom or leverage has to be provided
to the authority making such decisions. The courts are normally reluctant to interfere
in exercise of such power unless the decision making process is ex facie arbitrary or is
not in conformity with the parameters stated under Section 144 Code of Criminal
Procedure. itself.
71. From the record, it can reasonably be inferred that the Ministry of Home Affairs
and Delhi Police were working in co-ordination and the Police was keeping the Ministry
informed of every development. There is some element of nexus between the
Government's stand on the demands of Baba Ramdev, its decision in that regard and
the passing of an order under Section 144, Code of Criminal Procedure. but, this by
itself would not render the decision as that taken in bad faith. The decision of the
Ministry or the Police authorities may not be correct, but that ipso facto would not be a
ground for the Court to believe that it was a colourable and/or mala fide exercise of
power. Version of Respondent No. 4:
72. Now, I may refer to the case put forward by Respondent No. 4, the President of
Bharat Swabhiman Trust, Delhi Area who has filed affidavits on behalf of that party. At
the outset, it is stated in the affidavits filed that Baba Ramdev, the Trust and his
followers are law abiding citizens of the country and never had any intention to disturb
the law and order, in any manner whatsoever. Various camps and meetings have been
held by the Trust in various parts of the country and all such meetings have been
peaceful and successful as well. Baba Ramdev had been travelling the length and
breadth of the country explaining the magnitude of the problem of corruption and
black money and failure of the Government to take effective steps. The anti-corruption

movement had been at the forefront of the meetings held by Baba Ramdev at different
places. Baba Ramdev is stated to have participated in a meeting against corruption at
Jantar Mantar on 14th November, 2010 where more than 10,000 people had
participated. Similar meetings were organized at Ramlila Maidan on 30th January,
2011 and 27th February, 2011, which also included a march to Jantar Mantar. None of
these events were perceived by the Government as any threat to law and order and, in
fact, they were peaceful and conveyed their theme of anti-corruption. On 4th May,
2011, Baba Ramdev had written a letter to the Prime Minister stating his intention to
go on fast to protest against the Government's inaction against bringing back the black
money. This was responded to by the Prime Minister on 19th May, 2011 assuring him
that the Government was determined to fight with the problem of corruption and black
money in the economy and illegal deposits in the foreign countries and asking him to
drop the idea of going on a hunger strike till death. On 20th May, 2011, the Trust had
written a letter to the Police seeking permission to hold a fast unto death at Jantar
Mantar protesting against the Government's inaction against corruption. The Finance
Minister had also written a letter to Baba Ramdev on 20th May, 2011 regarding the
same issue. The dates of applying for permission to hold Yoga camp and to hold
dharna at Jantar Mantar and dates of granting of such permissions are not in dispute.
The above-noticed dates of applying for permission and to hold dharna at Jantar
Mantar and their consequential approval are not disputed by this Respondent.
According to this Respondent, the Police had attempted to make a huge issue that the
permission granted to the Trust was to hold a yoga camp of approximately 5,000
persons and not a fast with thousands of persons attending. It is submitted by this
Respondent that Police was concerned with the maintenance of law and order, free
flow of traffic, etc. The use of land was the concern of the owner of the land, in the
present case, the Municipal Corporation of Delhi (MCD). The Trust had applied to the
MCD requesting it for giving on rent/lease the Ramlila Maidan for the period
commencing from 1st June, 2011 to 20th June, 2011. Before grant of its permission,
the MCD had written to the Trust that they should obtain NOC from the Commissioner
of Police, Delhi which was duly applied for and, as already noticed, obtained by the
Trust. of course, it was a conditional NOC and the conditions stated therein had been
adhered to, whereafter, the MCD had given the Ramlila maidan on lease to the Trust.
The permission was revoked by the Police and not by the MCD and the MCD never
asked the Trust to vacate the premises, i.e., Ramlila Maidan.
73. Before the fateful night i.e. 4th/5th June, 2011, it has been stated that Baba
Ramdev had reached New Delhi and was received at the Airport by the Ministers.
There, at the Airport itself, an attempt was made to persuade Baba Ramdev to call off
his fast. Thereafter, a meeting was held at Hotel Claridges on 3rd June, 2011 wherein
Baba Ramdev was assured that the Government would take concrete steps to bring
back the black money from abroad and they would also issue an Ordinance,
whereupon he should call off his fast.
74. On 4th June, 2011, from 5.00 a.m., the yoga camp was started at the Ramlila
Maidan. This was also telecasted live on Astha TV and other channels. During the yoga
camp, Baba Ramdev stated that he will request the Government to follow the path of
Satya and Ahinsa aparigriha and he would make efforts to eradicate corruption from

the country. He also informed that the black money should be brought back and he
would perform Tapas for the nation in that Shivir. Thousands of people had gathered at
the venue. The Police was present there all this time and the number of persons was
already much in excess of 5,000. It is emphasized, in the affidavit of this Respondent,
that as per the directions of the Police, only one entry and one exit gate were being
kept open and this gate was manned by the Police personnel themselves, who were
screening each and every person who entered the premises. There was no disturbance
or altercation, whatsoever, and the followers of Baba Ramdev were peacefully waiting
in queues that stretched for over two kilo meters. If the Police wanted to limit the
number to 5,000, it could have easily stopped the people at the gate itself. However,
no such attempt was made.
75. This conduct of the Police goes to indicate that
instructions from the Government and their current
persons present is nothing but an afterthought. This
there was no impediment to the free flow of traffic
incident.

the Police action resulted from

stand regarding the number of
Respondent further asserts that
at any time on the day of the

76. In the afternoon of 4th June, 2011, when the preparations for starting the fast at
Jantar Mantar began, senior officers of Delhi Police requested the officials of the Trust
not to proceed to Jantar Mantar. In obedience of this order, the fast was begun at
Ramlila Maidan itself. During the course of negotiations with the Government, Baba
Ramdev was assured that their demands in relation to black money and corruption
would be met. This led to a festive atmosphere at Ramlila Maidan at around 7.00 p.m.
However, later on, the Government representatives took the stand that no such
assurances were given by them. Consequently, Baba Ramdev issued a statement that
he will discuss the matter only with the Finance Minister or any other responsible
person. At around 10.00 p.m., Shanti Paath was performed and everybody went to
sleep as Ashtang Yoga training was scheduled for 5.00 a.m. next morning. At around
11.00 p.m., the Personal Assistant of Shri Sibal delivered a letter to Acharya
Balkrishna as Baba Ramdev was asleep at that time, stating as follows:
This is to clarify that the government is committed to build a legal structure through
which wealth generated illegally is declared as a national asset and that such assets nare
(sic) subject to confiscation. Laws also provide for exemplary punishment for those who
perpetrate ill-gotten wealth. This clearly declares the intention of the Government. You
have already publicly stated that upon receiving this letter, you will end your tapa. We
hope that you will honour this public commitment forthwith.
77. This letter, it is stated, was found to be vague and non- committal as it was not
mentioned in this letter as to what concrete steps the Government would take to
tackle this national economic and moral crises. At nearly midnight, by way of an
unprecedented action, an order under Section 144 Code of Criminal Procedure. along
with an order cancelling the permission granted earlier by the Police, was issued,
illegally, without any justification and without adequate warning. It is specifically
denied that this order was served on any officer of the Trust. Around 12.30 a.m., more
than 5000 Policemen (as stated in the notes of the Amicus. However, from the record

it appears to be 1200 police personnel) had surrounded the tent while everyone inside
it was sleeping. When asked by Baba Ramdev to furnish the arrest warrant, the Police
refused to do so. Baba Ramdev requested all the sadhakas to maintain peace and
ahinsa.
78. This Respondent also alleges that the Police disabled the public address system.
Consequently, Baba Ramdev got off the stage and exhorted his followers to maintain
peace and calm. There was an apprehension that the Police intended to kill Baba
Ramdev and therefore, protective cordons were formed around Baba Ramdev. In order
to gain access to Baba Ramdev, Police launched brutal attack on the crowd, including
women. Use of teargas shells was also resorted to, causing a part of the stage to catch
fire which could potentially have caused serious casualties. Policemen were also
engaged in stone pelting and looting. This event lasted till 4.00 a.m. As a result
several people including women received injuries. Spinal cord of a woman named
Rajbala was broken that left her paralyzed. Respondent No. 4 contends that the media
footage publically available substantiates these contentions.
79. While leaving the Ramlila Maidan, the Police allegedly sealed access to the Help
Camp at Bangla Saheb Gurudwara. The press release and interview given by the
Minister of Home Affairs on 8th June, 2011 stresses that the order of externment of
Baba Ramdev from Delhi after cancellation of permission for the fast/protest was
determined in advance and was to be enforced in the event he "persisted" in his
efforts to protest. The requirements for an order of externment under Section 47 of
Delhi Police Act, 1978 (for short, 'the DP Act') had, therefore, not been satisfied at the
time of such decision and such order was not served on Baba Ramdev at any point.
They also failed to make Baba Ramdev aware of any alleged threat to his life.
80. It is stated that the Police have failed to register FIRs on the basis of complaints of
50 to 60 people including that given by one Sri Jagmal Singh dated 10th June, 2011.
81. On these facts, it is the submission of Respondent No. 4 that it is ironic that
persons fasting against failure of the Central Government to tackle the issue of
corruption and black money have been portrayed as threats to law and order. Citizens
have a fundamental right to assembly and peaceful protest which cannot be taken
away by an arbitrary executive or legislative action. The law prescribes no
requirements for taking of permission to go on a fast. The Respondent No. 4 suggests
that in order to establish the truth of the incident, an independent Commission should
be constituted, based on whose report, legal action to be taken in such situations
should be determined.
82. With reference to the above factual averments made by Respondent No. 4, the
argument advanced by Mr. Ram Jethmalani, Senior Advocate, is that, in the earlier
meetings, both at the Ramlila Maidan and Jantar Mantar, no untoward incident had
occurred, which could, by any standard, cause an apprehension in the mind of the
Police that there could occur an incident, communal or otherwise, leading to public
disorder, in any way. The revocation of permissions as well as the brutality with which
the gathering at the Ramlila Maidan was dispersed is impermissible and, in any case,

contrary to law. The Ground belongs to the Municipal Corporation of Delhi and the
permission had duly been granted by the said Corporation for the entire relevant
period. This permission had never been revoked by the Corporation and as such the
Police had no power to evict the public from the premises of Ramlila Maidan. The Police
had also granted a 'No Objection Certificate' (NOC) for holding the meeting and the
withdrawal of the NOC is without any basis and justification. The purpose for granting
of permission by the Police was primarily for the reason that:
a. The Corporation had required such permission to be obtained;
b. There should be no obstruction to the traffic flow; and
c. There should be proper deployment of volunteers in adequate number.
83. None of the stated conditions, admittedly, had been violated and as such there
was no cause for the Police authorities to withdraw the said permission. In fact, it is
the contention on behalf of this Respondent that there was no requirement or need for
taking the permission of the Police for holding such a function. Reliance in this regard
is placed upon the judgment of this Court in the case of Destruction of Public and
Private Properties, In Re v. State of Andhra Pradesh and Ors. : (2009) 5 SCC 212.
84. Even if for the sake of arguments, it is assumed that there was a requirement for
seeking permission from the Police and the Police had the authority to refuse such a
permission and such authority was exercised in accordance with law, then also this
Respondent and the public at large were entitled to a clear and sufficient notice before
the Police could use force to disperse the persons present at the site.
85. Imposition of an order under Section 144 Code of Criminal Procedure. was neither
called for nor could have been passed in the facts and circumstances of the present
case. It is contended that Police itself was an unlawful assembly. It had attacked the
sleeping persons, after midnight, by trespassing into the property, which had been
leased to the Respondent-Trust. The use of teargas, lathi charge, brick-batting and
chasing the people out of the Ramlila Maidan were unjustifiable and brutal acts on the
part of the Police. It was completely disproportionate not only to the exercise of the
rights to freedom of speech and expression and peaceful gathering, but also to the
requirement for the execution of a lawful order. The restriction imposed, being
unreasonable, its disproportionate execution renders the action of the Police unlawful.
This brutality of the State resulted in injuries to a large number of persons and even in
death of one of the victims. There has also been loss and damage to the property.
86. Another aspect that has been emphasized on behalf of this Respondent is that
there was only one gate for 'Entry' and one for 'Exit', besides the VIP Entry near the
stage. This was done as per the directive of the Police. The entry gate was completely
manned by the Police and each entrant was frisked by the Police to ensure security.
Thus, the Police could have easily controlled the number and manner of entry to the
Ramlila Maidan as they desired. At no point of time there were more than 50,000
people present at the premises. On the contrary, in the midnight, when the Police used

force to evict the gathering, there were not even 20,000 people sleeping in the tent.
Lastly, it is also contended that the people at Ramlila Maidan were sleeping at the time
of the occurrence. They were woken up by the Police, beaten and physically thrown
out of the tents. In that process, some of the persons lost their belongings and even
suffered damage to their person as well as property. Neither was there any threat to
public tranquility nor any other material fact existed which could provide adequate
basis or material to the authorities on the basis of which they could take such
immediate preventive steps, including imposition of the prohibitory order under
Section 144 Code of Criminal Procedure. In fact, the order was passed in a preplanned manner and with the only object of not letting Baba Ramdev to continue his
fast at the relevant date and time. All this happened despite the full cooperation by
Baba Ramdev. He had voluntarily accepted the request of the Police not to visit Jantar
Mantar along with his followers on 4th June, 2011 itself. Everything in the Ramlila
Maidan was going on peacefully and without giving rise to any reasonable
apprehension of disturbance of public order/public tranquility. These orders passed and
executed by the executive and the Police did not satisfy any of the essential conditions
as postulated under Section 144 Code of Criminal Procedure. Police Version.
87. The Commissioner of Police, Delhi has filed various affidavits to explain the stand
of the Police in the present case. I may notice that there is not much variation in the
dates on which and the purpose for which the permissions were granted by the
competent authority as well as the fact that Ramlila Maidan was given by the MCD to
Respondent No. 4.
88. According to the Police also, the Trust, Respondent No. 4, had sought permission
to hold yoga camp for 4,000 to 5,000 people from 1st June, 2011 to 20th June, 2011
and the same was granted subject to the conditions stated above. Baba Ramdev had
made a statement in the media indicating his intention to hold Anshan. Upon seeking
clarification by the DCP, Central District vide letter dated 27th May, 2011, the Acharya
by their letter dated 28th May, 2011 had re-affirmed their stand that a yoga camp was
to be held. It is the case of the Respondent No. 3 that on 30th May, 2011, Special
Branch, Delhi Police had issued a special report that Baba Ramdev would proceed on
an indefinite hunger strike with 30,000-35,000 persons and, in fact, the organizers of
Respondent No. 4 were claiming that the gathering may exceed even one lakh in
number.
89. The permission to hold the yoga camp was granted to the Respondent No. 4.
Citing certain inputs, the DCP issued a warning to Respondent No. 4 expressing their
concern about the variance of the purpose as well as that there should be a limited
gathering, otherwise the authorities would be compelled to review the permission. The
DCP issued law and order arrangements detailing the requirement of Force for dealing
with such a large gathering.
90. Further, inputs given on 3rd June, 2011 had indicated that Baba Ramdev was
being targeted by certain elements so as to disrupt communal harmony between
Hindus and Muslims. Advice was made for review and strengthening of security
arrangements. As a result thereto, security of Baba Ramdev was upgraded to Z+

category vide order dated 3rd June, 2011 and a contingency plan was also drawn. On
4th June, 2011, despite assurances, the yoga training was converted into Anshan at
about 1300 hrs. and Baba Ramdev decided to march to Jantar Mantar for 'Dharna'
with the entire gathering, the permission for which was limited to only 200 people.
Therefore, in view of the huge mass of people likely to come to Jantar Mantar, the said
permission was withdrawn on 4th June, 2011.
91. Baba Ramdev refused to accept the order and, in fact, exhorted his followers to
stay back in Delhi and called for more people to assemble at Ramlila Maidan, which
was already full. The verbal inputs received by the Joint Commissioner of Police
indicated the possibility of further mobilisation of large number of people by the next
morning. Ramlila Maidan is surrounded by communally hyper-sensitive localities. Late
at night, crowd had thinned down to a little over 20,000. Since a large number of
people were expected to gather on the morning of 5th June, 2011, the permission
granted to the Trust was also withdrawn and prohibitory orders under
Section 144 Code of Criminal Procedure. were issued.
92. In view of the above, the DCP considered it appropriate to immediately serve the
order on Baba Ramdev requiring him and the people present to vacate the Ramlila
Maidan.
93. According to these affidavits, Force was deployed to assist the public in vacating
the Ramlila Maidan. Buses were deployed at gates and ambulances, fire tenders, PCR
vans were also called for. Baba Ramdev refused to comply with the orders. On the
contrary, he jumped into the crowd, asked women and elderly persons to form a
cordon around him in order to prevent the Police from reaching him. No hearing was
claimed by Baba Ramdev or any of his associates. This sudden reaction of Baba
Ramdev created commotion and resulted in melee. Baba Ramdev exhorted his
followers not to leave the Ramlila Maidan. Baba Ramdev, later on along with his
followers, went on to climb the stage which is stated to have collapsed. The supporters
of Respondent No. 4 had stocked the bricks behind the stage and were armed with
sticks and baseball bats. The crowd started brick-batting and throwing security
gadgets, flower pots etc. at the Police from the stage resulting in injuries to Policemen
and a minor stampede in public in a part of the enclosure. Baba Ramdev vanished
from the stage with his female followers. Few members of public jumped from the
stage and got injured. Police exercised maximum restraint and used minimum force.
To disperse the crowd, they initially used water canons, which when proved ineffective,
teargas shells, only on right side of the stage, were used in a controlled manner.
94. It is stated that this situation continued for around two hours and the Police did
not have any intention to forcibly evacuate the public from Ramlila Maidan. As Baba
Ramdev decided to evade the Police, the situation at Ramlila Maidan became volatile.
The print media have given reports on the basis of incorrect facts or hearsay. 95. It is
also stated in this affidavit that total 38 Policemen and 48 public persons were injured
and according to the medical reports, public persons sustained injuries during the
minor stampede which occurred in one part of the enclosure. Most of these persons
were discharged on the same date. The press clipping/reports do not present a

complete picture of the incident and contained articles based on incorrect facts. The
incident was unfortunate but was avoidable, had the organizers acted as law abiding
citizens and accepted the lawful directions of the Police.
96. Having stated that the teargas shelling and the other force was used as a response
to the brick-batting and misbehavior by the gathering, it is also averred that the
affidavit filed on behalf of Respondent No. 4 could not be relied upon as the person
swearing it was admittedly not present at the venue after 10.30 p.m. on 4th June,
2011. All these actions are stated to have been taken by the Force in consultation with
the senior officers and no instructions are stated to have been received from the
Ministry of Home Affairs, although the said Ministry was kept informed and apprised of
the development from time to time. All this was done in the interest of public order,
larger security concern and preservation of law and order.
97. Permission of Delhi Police is required by anyone planning to hold public functions
at public places. Delhi Police, having granted such permission, was fully competent to
revoke it as well as to pass orders under Section 144 Code of Criminal Procedure. The
organizers of Respondent no.4 had misled the Police and the Special Branch report had
clarified the situation on 30th May, 2011 that the intention was to hold indefinite
hunger strike. It is stated that by the evening of 3rd June, 2011, only 5000 persons
had arrived. It is the case of the Police that they had persuaded Baba Ramdev not to
go to Jantar Mantar with his followers and, therefore, the dharna at Jantar Mantar was
cancelled. It was the apprehension of the Police that the gathering would increase
several folds by the next morning and that could raise a major law and order problem
and there was a possible imminent threat to public safety. Thus, the permission was
withdrawn and order under Section 144 Code of Criminal Procedure. was passed. Delhi
Police confirms that it had been communicating information at the level of the
Secretary to the Ministry of Home affairs and any discussion or communication beyond
that level is a matter in the domain of that Ministry itself. It was only in consequence
of the violent retaliation by the crowd that use of teargas, water cannons and finally
lathi charge was taken recourse to by the Police. The video footage shows that a group
of supporters of Respondent No. 4 standing on one side of the stage started throwing
bricks and flower pots, etc. The Police also found the bricks stacked behind the stage.
It was the brick-batting and the atmosphere created by the crowd that resulted in a
minor stampede. Further, it is stated that the pandal was open on all sides, ceiling was
high and there were enough escape routes and the use of teargas in such a situation is
not prohibited. Eight teargas shells were used to prevent the Police from being
targeted or letting the situation turn violent and all precautions were taken before
such use. No Police Officer was found to be hitting any person. Respondent No. 4 had
been asked to install sufficient CCTV cameras and M/s. Sai Wireless removed the
cameras and DVRs installed by them immediately after the incident on 5th June, 2011.
The proprietor had even lodged a complaint at Police Station, Kamla Market and a case
of theft under FIR No. 49 of 2011 was registered. The said concern, upon being called
for the same by a notice under Section 91 Code of Criminal Procedure., produced 10
DVRs containing more than 190 hours of video. The investigation of that case revealed
that out of 48 cameras ordered by the organizers, only 44 were installed, 42 were
made operational out of which two remained non-functional and recording of one could

not be retrieved due to technical problems. Recording of eight cameras and two DVRs
were not available as these equipments were reportedly stolen, as noted above. Thus,
the recordings from only 41 cameras/DVRs were available.
98. The primary aim of MCD is to earn revenue from commercial use of land and it is
for the Police to take care of the law and order situation and to regulate
demonstrations, protests, marches etc. No eviction order was passed except that the
permissions were cancelled and order under Section 144 Code of Criminal Procedure.
was made.
99. On 25th July, 2011, another affidavit was filed by the Commissioner of Police
stating that nearly 155 complaints in writing and/or through e-mail were received by
the Police Station Kamla Market alleging beating by the Police, theft and loss of
property i.e. belongings of the complainants, 13 out of them were duplicate, 11
anonymous and 35 e-mails were in the nature of comments. On investigation, only
four persons responded to the notice under Section 91 Code of Criminal Procedure, but
stated facts different from what had been noticed in the complaints. Some complaints
were also being investigated in case FIR No. 45 of 2011 registered at the same Police
station.
100. It is further the case, as projected during hearing, that probably one Smt.
Rajbala, who was on the stage with Baba Ramdev, had fallen from the stage and
became unconscious. This complaint was also received at the Police Station Kamla
Market and was entered at para No. 26A dated 6th June, 2011.
101. Still, in another affidavit dated 20th September, 2011 filed on behalf of
Respondent No. 3, it was specifically denied that any footages had been tampered
with. The Police had climbed to the stage, firstly, to serve the order and, thereafter,
only when the entire incident was over and it was denied that Rajbala was beaten by
the Police.
102. It is stated that the Respondents, including Respondent No. 4, have isolated a
segment of footage wherein few Policemen are throwing bricks on tents near the
stage. It is stated to be an isolated incident and was a reaction of few Policemen to a
spate of bricks by Baba Ramdev's supporters. With regard to the injuries and cause of
death of Smt. Rajbala who died subsequent to the issuance of notice by this Court, it
is averred that she was given medical aid and was admitted to the ICU. There was no
external injury on her body. It is also stated that she was offered medical help of
Rupees two lakh which was not accepted. She was a case of "gross osteoporosis", that
too, to the extent that she was being managed by "endrocrinologist" during her
treatment. As stated, according to the medical literature, osteoporosis of this degree
could make her bones brittle and prone to fracture even by low intensity impact.
103. While relying upon the above averments made in different affidavits, the
submission on behalf of Respondent No. 3 is that there being no challenge to the
Standing Order 309, provisions of the DP Act and the Punjab Police Rules and even the
order passed under Section 144 Code of Criminal Procedure., the action of Delhi Police

has to be treated as a reasonable and proper exercise of power. The organizers of

Respondent No. 4 had misrepresented the Government and the Police authorities with
regard to holding of the yoga camp. The Trust is guilty of seeking permission on
incorrect pretext. The effort on behalf of the Police was that of carefully watching the
development rather than taking any rash decisions and cancelling the permission
earlier than when it was actually cancelled.
104. The right to freedom in a democracy has to be exercised in terms of Article 19(1)
(a) subject to public order. Public order and public tranquility is a function of the State
which duty is discharged by the State in the larger public interest. The private right is
to be waived against public interest. The action of the State and the Police was in
conformity with law. As a large number of persons were to assemble on the morning of
5th June, 2011 and considering the other attendant circumstances seen in light of the
inputs received from the intelligence agencies, the permission was revoked and the
persons attending the camp at Ramlila Maidan were dispersed.
105. Even if for the sake of argument, it is taken that there were some stray incidents
of Police excessiveness, the act best can be attributable to individual actions and
cannot be treated or termed as an organizational brutality or default.
106. Individual responsibility is different from responsibility of the Force. Abuse by one
may not necessarily be an abuse of exercise of power by the Force as a whole. The
Police had waited for a considerable time inasmuch as the order withdrawing the
permission was passed at about 9.30 p.m. and was brought to the notice of the
representatives of Respondent No. 4 at about 10.30 p.m. and no action was taken by
the Police till approximately 1 a.m. This was for the fact that the persons were
sleeping and Police wanted them to disperse in a peaceful manner, but it was the stone
pelting, the panic created by the organisers and the consequent stampede that
resulted in injuries to some persons. The contention is also that the organizers are
responsible for creating the unpleasant incident on midnight of 4th/5th June, 2011 and
they cannot absolve themselves of the responsibilities and liabilities arising therefrom.
The Police had acted in good faith and bona fide. Therefore, the action of the Police
cannot be termed as arbitrary, mala fide or violative of the basic rule of law.
107. Lastly, Mr. Harish Salve, learned senior Counsel appearing for Respondent No. 3,
contended that there are certain issues which this Court need not dwell upon and
decide as they do not directly arise for determination in the facts and circumstances of
the present case:
a) Whether it was necessary for MCD to direct and for organizers to take
permission from Delhi Police?
b) Cancellation of permission for holding of Dharna/agitation at Jantar Mantar.
c) Validity of the orders passed by the State including the order passed under
Section 144 Code of Criminal Procedure.

108. I have noticed, in some detail, the version of each of the parties before the Court
in response to the suo moto notice. Before analyzing the respective versions put
before the Court by the parties and recording the possible true version of what
happened which made the unfortunate incident occur, I would like to notice that I am
not prepared to fully accept the last contention raised by Mr. Harish Salve, in its
entirety. of course, it may not be necessary for this Court to examine the effect of the
cancellation of permission for Jantar Mantar and validity of the orders passed by the
Government, but this Court is certainly called upon to deal with the question whether
it was obligatory for the organizers, Respondent No. 4, to seek the permission of the
Police for holding such a large public demonstration. Therefore, I would be touching
the various aspects of this issue and would deal with the orders of the State to the
extent it is necessary to examine the main issue in regard to the excessive use of
force and brutality and absolute organizational default by the Police, if any. Findings on
Incident of Midnight of 4th/5th June, 2011 and the Role of Police and
Members/followers of Respondent No. 4
109. All National and Delhi Edition newspapers dated 5th June, 2011 as well as the
media reports had reported the unfortunate incident that occurred on the midnight of
4th/5th June, 2011 at Ramlila Maidan in Delhi. On the night of 4th June, 2011, all the
men and women, belonging to different age groups, who had come to Ramlila Maidan
to participate in the Yoga Training Camp called as 'Nishulk Yoga Vigyan Shivir', were
comfortably sleeping at the Ramlila Maidan, when suddenly at about midnight, the
people were woken up. The Joint Commissioner of Police sought to serve the order
revoking the permission granted to hold the said yoga camp and imposing
Section 144 Code of Criminal Procedure., purportedly to curb any agitation at the
Ramlila Maidan. There was commotion at the Ramlila Maidan. Persons who had
suddenly woken up from sleep could not know where and how to go. It appears that
Baba Ramdev did not receive the orders. However, some of the officials of the Bharat
Swabhiman Trust were made aware of the orders. Thereafter, the Police made an
attempt to disperse the gathering at about and after 1.00 a.m. on 4th/5th June, 2011.
110. They are stated to have resorted to use of teargas and lathi charge in order to
disperse the crowd as they were unable to do so in the normal course. Since there was
protest by the people and some violence could result, the Police used teargas and lathi
charge to ensure dispersement of the assembly which had, by that time, been
declared unlawful. As a result of this action by the Police, a number of men and
women were injured, some seriously. This also finally resulted into the death of one
Smt. Rajbala.
111. This action of the Police was termed as brutal and uncalled for by the Press.
Headlines in the various newspapers termed this unfortunate incident as follows:
Times of India dated 6th June, 2011:
'Why Centre went from licking to kicking',
'Ramleela Ground never saw so much drama',

'She may be paralyzed for life'.

'Women not spared, we were blinded by smoke'
'Cops claim terror alert to justify midnight raid'
'Swoop Not Sudden, cops trailed Ramdev for 3 days'
'After eviction they chant and squat on road'
'Protestors Armed with bricks, baseball bats Cops'
Indian Express dated 6th June, 2011:
'Baba Gives UPA a Sleepless Summer'
'Week Ago, Home, Delhi Police told Govt: look at plan the show'
'Getting Ramdev Out'
'Yielding and bungling - Cong (Weak) Core Group'
112. This event was described with great details in these news items and articles,
along with photographs. Besides the fact that large number of persons were injured
and some of them seriously, there was also damage to the property. The question
raised before this Court, inter alia, included the loss and damage to the person and
property that resulted from such unreasonable restriction imposed, its execution and
invasion of fundamental right to speech and expression and the right to assembly, as
protected under Articles 19(1)(a) and 19(1)(b). It is contended that the order was
unreasonable, restriction imposed was contrary to law and the entire exercise by the
Police and the authorities was an indirect infringement of the rights and protections
available to the persons present there, including Article 21 of the Constitution.
113. These events and the prima facie facts stated above, persuaded this Court to
issue a suo moto notice vide its order dated 6th June, 2011. This notice was issued to
the Home Secretary, Union of India, the Chief Secretary, Delhi Administration and the
Police Commissioner of Delhi to show cause and file their personal affidavits explaining
the conduct of the Police authorities and the circumstances which led to the use of
such brutal force and atrocities against the large number of people gathered at Ramlila
Maidan. In reply to the above notice, different affidavits have been filed on behalf of
these authorities justifying their action. A notice was issued to Bharat Swabhiman
Trust vide order dated 20th June, 2011. The application for intervention on behalf of
Rajbala (now deceased) was allowed vide order dated 29th August, 2011. They filed
their own affidavit. In order to ensure proper independent assistance to the Court, the
Court also appointed an amicus curiae and Dr. Dhavan accepted the request of the
Court to perform this onerous job.

114. Having taken into consideration the version of each party before this Court, I
would now proceed to limn the facts and circumstances emerging from the record
before the Court that led to the unfortunate incident of the midnight of 4/5th June,
2011. Without any reservation, I must notice that in my considered view, this
unfortunate incident could have been avoided by proper patience and with mutual
deliberations, taken objectively in the interest of the large gathering present at Ramlila
Maidan. Since this unfortunate incident has occurred, I have to state with clarity what
emerges from the record and the consequences thereof. 115. As already noticed, the
yoga camp at the Ramlila Maidan had begun with effect from 1st June, 2011 and was
continuing its normal functioning with permission from the Police as well as with due
grant of licence by the MCD. Undoubtedly, Respondent No. 4 had the permission to
also hold a dharna at Jantar Mantar on 4th June, 2011 to raise a protest in relation to
various issues that had been raised by Baba Ramdev in his letters to the Government
and in his address to his followers. These permissions had been granted much in
advance. As a response to the pamphlets issued and the inputs of the intelligence
agencies, the DCP (Central District) Delhi had expressed certain doubts vide his letter
dated 27th May, 2011 asking for clarification as to the actual number of persons and
the real purpose for which Ramlila Maidan would be used from 1st June, 2011. To this,
Respondent No. 4 had promptly replied stating that there will be no other event except
the residential yoga camp. However, keeping in view the information received, the
Deputy Commissioner of Police, Central District, vide his letter dated 1st June, 2011
had issued further directions for being implemented by Respondent No. 4 and
reiterated his earlier requirements, including that number of the gathering should
remain within the limits conveyed. In this letter, it was also indicated that the
authorities may review the position, if necessary. However, on 3rd June, 2011, it had
been noticed that a huge gathering was expected in the programme and also that the
inputs had been received that Baba Ramdev would sit on an indefinite hunger strike
with effect from 4th June, 2011 in relation to the issues already raised publically by
him. After noticing various aspects, including that various terrorist groups may try to
do something spectacular to hog publicity, Respondent No. 3 made a very objective
assessment of the entire situation and issued a detailed plan of action to ensure
smooth functioning of the agitation/yoga camp at Ramlila Maidan without any public
disturbance. The objectives stated in this planned programme have duly been noticed
by me above.
116. All this shows that the authorities had applied their mind to all aspects of the
matter on 2nd June, 2011 and had decided to permit Baba Ramdev to go on with his
activities. In furtherance to it, the Deputy Commissioner of Police, Central District had
also issued a restricted circular as contingency plan. It is obvious from various letters
exchanged between the parties that as on 3rd June, 2011, there had been a clear
indication on behalf of the authorities concerned that Baba Ramdev could go on with
his plans and, in fact, proper plans had been made to ensure security and Regulation
of traffic and emergency measures were also put in place. As I have already indicated,
there is nothing on record to show, if any information of some untoward incident or
any other intelligence input was received by the authorities which compelled them to
invoke the provisions of Section 144 Code of Criminal Procedure., that too, as an
emergency case without any intimation to the organizers and without providing them

an opportunity of hearing. The expression 'emergency' even if understood in its

common parlance would mean an exigent situation (See Black's Law Dictionary Twentieth Edn.); A serious, unexpected and potential dangerous situation requiring
immediate action (See Concise Oxford English Dictionary - Eleventh Edn.). Such an
emergent case must exist for the purpose of passing a protective or preventive order.
This may be termed as an 'emergency protective order' or an 'emergency preventive
order'. In either of these cases, the emergency must exist and that emergent situation
must be reflected from the records which were before the authority concerned which
passed the order under Section 144 Code of Criminal Procedure. There are hardly any
factual averments in the affidavit of the Commissioner of Police which would show any
such emergent event happening between 3rd and 4th June, 2011.
117. Similarly, nothing appears to have happened on 4th June, 2011 except that the
permission to hold a dharna at Jantar Mantar granted to Respondent No. 4 was
withdrawn and the Police had requested Baba Ramdev not to proceed to Jantar Mantar
with the large number of supporters, which request was acceded to by Baba Ramdev.
He, in fact, did not proceed to Jantar Mantar at all and stayed at Ramlila Maidan.
118. It is also noteworthy that after his arrival on 1st June, 2011 at the Airport, Baba
Ramdev met few senior ministers of the Government in power. He also had a meeting
with some ministers at Hotel Claridges on 3rd June, 2011. The issues raised by Baba
Ramdev were considered and efforts were admittedly made to dissuade Baba Ramdev
from holding Satyagraha at Jantar Mantar or an indefinite fast at Ramlila Maidan.
However, these negotiations failed. According to the reports, the Government failed to
keep its commitments, while according to the Government, Baba Ramdev failed to
keep up his promise and acted contrary even to the letter that was given by him to the
ministers with whom he had negotiated at Hotel Claridges. Thus, there was a deadlock
of negotiations for an amicable resolution of the problems.
119. This is the only event that appears to have happened on 3rd and 4th June, 2011.
On the morning of 4th June, 2011, the yoga camp was held at the Ramlila Maidan
peacefully and without disturbing public order or public tranquility. After the day's
proceedings, the large number of people who were staying at the Ramlila Maidan,
went to sleep in the Shamiana itself where due arrangements had already been made
for their stay. Beds were supplied to them, temporary toilets were provided and water
tanks and arrangements of food had also been made. The footages of the CCTV
cameras, videos and the photographs, collectively annexed as Annexure-9 to the
affidavit of Respondent No. 4, establish this fact beyond any doubt that all persons, at
the relevant time, were peacefully sleeping.
120. According to the Police, on 4th June, 2011, Baba Ramdev had delivered a speech
requesting people from various parts of the country to come in large number and join
him for the Satyagrah. The order withdrawing the permission for holding a yoga shivir
at the Ramlila Maidan was passed at 9.30 p.m. The Police reached the Ramlila Maidan
in order to inform the representatives of Respondent No. 4 about the passing of the
said order, after 10.30 p.m. At about 11.30 p.m., on the same date, the executive
authority passed an order under Section 144 Code of Criminal Procedure. The Police

officers came to serve this order upon the representatives of Respondent No. 4 much
thereafter. The footages of the CCTV Camera Nos. 2, 3, 4, 7, 8, 9, 12, 15, 17, 18 and
32 show that even at about 1.00 a.m. in the night of 4th/5th June, 2011, people were
sleeping peacefully. The Police arrived there and tried to serve the said order upon the
representatives of Respondent No. 4 as well as asked for Baba Ramdev, who was
stated to be taking rest in his rest room. However, the action of the Police officers of
going on the stage and of some of them moving where people were sleeping obviously
caused worry, fear and threat in the minds of the large number of persons sleeping in
the tent. It is the conceded position before this Court that nearly 15,000 to 20,000
persons were present in the tent at the relevant time.
121. The CCTV footages clearly show the Police officers talking to Baba Ramdev and
probably they wanted to serve the said orders upon him. However, Baba Ramdev
withdrew from the deliberations and jumped from the stage amidst the crowd. By this
time, a large number of persons had gathered around the stage. After climbing on to
the shoulders of one of his followers, Baba Ramdev addressed his followers. He
exhorted them to form a cordon around him in the manner that the women forming
the first circle, followed by youth and lastly by rest of his supporters. This circle is
visible in the evidence placed before the Court. I do not consider it necessary to refer
to the speech of Baba Ramdev to the crowd in any greater detail. Suffice it to note
that while addressing the gathering, Baba Ramdev referred to his conversations with
the Government, urged the crowd to chant Gayatri Mantra, maintain Shanti and not to
take any confrontation with the Police. He further stated that he would not advise the
path of hinsa, but at the same time, he also stated about his talks with the
Government and reiterated that he will not leave, unless the people so desired and it
was the wish of God. He also chanted the Gayatri Mantra, and wished all the people
around him. At the same time, it is also clear from the evidence of CCTV Camera's
footage and the photographs, that Baba Ramdev had referred to the failure of his talks
with the Government and his desire to continue his Anshan. He also, in no uncertain
terms, stated 'Babaji will go only if people wanted and the God desires it.' Another
significant part of Baba Ramdev's speech at that crucial time was that he urged the
people not to have any confrontation with the Police and that he had no intention/mind
to follow the path of hinsa or to instigate quarrel with the authorities. By this time, all
persons present in the tent had already woken up and were listening to Baba Ramdev
interacting with the Police. Some people left while a large number of people were still
present in the shamiana. According to the Police, brick batting started from one corner
of the stage and it was only in response thereto, they had fired the teargas shells on
and around the stage. In all, eight teargas shells were fired. According to the Police,
they did not resort to any lathi charge and, in fact, they had first used water cannons.
According to Respondent No. 4, the Police had first fired teargas shells, then lathi
charged the persons present and never used water cannons. According to them, the
Police even threw bricks from behind the stage at the people and the control room and
it was in response thereto that some people might have thrown bricks upon the Police.
122. What is undisputable before this Court is that the Police as well as the followers
of Baba Ramdev indulged into brick batting. Teargas shells were fired at the crowd by
the Police and, to a limited extent, the Police resorted to lathi charge. After a large

number of Police personnel, who are stated to be more than a thousand, had entered
the Ramlila Maidan and woken up the persons sleeping, there was commotion,
confusion and fear amongst the people. Besides that, it had been reported in the Press
that there was lathi charge. Men and women of different age groups were present at
the Ramlila Maidan. The photographs also show that a large number of Police
personnel were carrying lathis and had actually beaten the persons, including those
sitting on the ground or hiding behind the tin shed, with the same. CCTV Camera No. 5
shows that the Police personnel were also throwing bricks. The same camera also
shows that even the followers of Baba Ramdev had used the fire extinguishing gas to
create a curtain in front, when they were throwing bricks at the Police and towards the
stage. The CCTV cameras also show the Police pushing the persons and compelling
them to go out. The Police personnel can also be seen breaking the barriers between
the stage and the ground where the people were sitting during the yoga sessions. The
photographs also show some Police personnel lifting a participant from his legs and
hands and trying to throw him out. The photographs also show an elderly sick person
being attended to and carried by the volunteers and not by the Police.
123. The documents on record show that some of the Police personnel certainly
abused their authority, were unduly harsh and violent towards the people present at
the Ramlila Maidan, whereas some others were, in fact, talking to the members of the
gathering as well as had adopted a helpful attitude. The brick batting resorted to by
both sides cannot be justified in any circumstances whatsoever. Even if the followers of
Respondent No. 4 acted in retaliation to the firing of teargas, still they had no cause or
right in law to throw bricks towards the stage, in particular, towards the Police and it is
a hard fact that some Police personnel were injured in the process. Similarly, the use
of teargas shells and use of lathi charge by the Police, though limited, can hardly be
justified. In no case, brick batting by the Police can be condoned. They are the
protectors of the society and, therefore, cannot take recourse to such illegal methods
of controlling the crowd. There is also no doubt that large number of persons were
injured in the action of the Police and had to be hospitalized. Element of indiscipline on
behalf of the Police can be seen in the footage of the CCTV cameras as well as in the
log book entries of the Police.
124. At this stage, it will be useful to examine the Police records in this respect. Police
arrangements had been made in furtherance to the arrangements planned by the
Central District of Police, Delhi dated 2nd June, 2011. Copies of the Police log book
have been placed on the file. As on 5th June, 2011 at about 1.28 a.m., a message was
flashed that the whole staff of the concerned Police stations shall report to Police
Station Kamla Market immediately. Then, an attempt was made to arrest Baba
Ramdev and an apprehension was expressed that there could be some deaths. I may
reproduce here the relevant messages from the Police log book to avoid any
ambiguity:
"District Net

Date

Start Time

Duration

Call Detail

05.06.11

03:22:53

00:00:33

R.L. Ground Kamla

market police men
are
beating the peoples
Ph.971147860
W/Ct.
Sheetal
No.8174/PCR

Transcription
of
Dm
Net
Dated
04.06.2011
from
200
hrs.
to
000
hrs.
Inform C-28, C-31, C-35, C-32 & C-4 and C-5 That They Would Meet Me After
30 Min and The 4 Shos Will Bring About 20 Personnel Each From Their
Transcript
of
DM
Net
Extract of Tetra DM Net of Central District. Dated 05/06/11 from 0100 Hrs. to
0500 Hrs. (Taken from the Tetra Recording)

218

C 50

C2

The force which is

standing outside at Turkman gate and
GurunanakChowk

having gas gun will come inside through VIP gate insta

110

12D

C50

225

C 50

12D

Understood

C 50

C2

The operator of gas

gun which is send has
not reported yet only

driver is sitting
operator is to be send
quickly.

225

CQ

C 50

The officer who has

send the gas gun will
send the operator, is
driver to operate it.

226

12D

C 50

Operator of gas gun is

to be send only driver
has reached there with
gas gun.

227

C 50

12 D

C 50

I don't have gas gun.

SHOs has already

reached inside with
staff.

227

C 50

C2

How many water

canons are there.

227

C2

C 50

Madam water canon is

outside at VIP gate
where i have informed
earlier.

305

C 50

C 24

This is informed that

the force guard 88 Bn..

CRPF is neither
obeying any
instruction and nor ready to come at any cost

Wireless Log & Diary Dt.5-6-2011 (Shift Duty 9 AM to 9 PM

Time

Call Detail

T 52

2:25 AM

01-T-52

One injured namely Jagat

Muni s/o Unknown R/o
VIIIPllana
(Rohtak)
Haryana. Age about 55-60
yrs
admitted
in
JPN
Hospital in unconscious
condition.

Wireless Log & Diary Dt.4/5-6-2011

Time

Call Detail

2:20 AM

L-100

0-1

PCR
Call:that
some
casualities
happened at RL
Ground. Direct the
ambulance.

0-1

L-100

Noted position
RL Ground

0-1

L-100

Injured
Traceable.
ambulance
searching

2:28 AM

at

not
Cats
also
injured

person.

Wireless Log & Diary Dt.4/5-6-2011

Time

Call Detail

8 AM

L-100

Charge of O-33
taken by ASI
VedPrakash
5150/PCR

0-33

0-1

Note down that in

RL Ground Police is
beating the public
persons.

0-1

0-33

Road is blocked
through barricades
at Ajmeri Gate. We
can't
leave
the
vehicle
without
staff.

Wireless Log & Diary Dt.4/5-6-2011 (Shift Night Duty 8 PM to 8 AM)

Time

0 - 60

1:58

0-60

Call Detail

0-1

Police
is
misbehaving
with
Baba Ramdev.

Wireless Log & Diary Dt.4/5-6-2011 (Shift Night Duty 8 PM to 8 AM)

Time

8 PM

Call Detail

0-10

Shift Change and charge taken by

HC Umed Singh No.899/PCR

2 am

0-1

0-10

From 0-10 SI Jaspal PS Mangol

Puri & Ct. Tarun 3036/DAP
sustained injury and we are taking
them to JPN Hospital.

2.10

0-1

0-10

0-10 told that both SI Jaspal and

Ct Tarun admitted in JPN Hospital
through Duty Ct. Ajay 1195/C.

Wireless Log & Diary Dt.4/5-6-2011 (Shift Night Duty 8 PM to 8 AM)

Time

B - 11

Call Detail

2.30 AM

Two injured persons taken to JPN Hospital namely

Raj Bala w/o Jalbeer R/o Gurgaon, Age-54, Jagdish
s/o AshaNand, Age-54 yrs.

207

C50

C12D

Both of vehicles is to be send, water canon is only

one

207

C12D

C50

C50 Right now only one is asked about so send only

one.

207

C12D

C50

Send one. Send one instantly. If other will be

required it will be informed.

125. The above entries of the Police log book clearly show that a number of persons
were injured, including Police personnel, and some of them even seriously. The water
cannons were not available inside the tent and the same were asked to come towards
the VIP gate. They were only two in number and were asked to be positioned at the
VIP entrance. In fact, as recorded in one of the above entries, there was only one
water cannon available which was positioned at the VIP entry gate and the version of
the Police that it had first used water cannons for dispersing the crowd before
resorting to the use of teargas, does not appear to be correct. The teargas shells were
fired at about 2.20 a.m. as per the footages of the CCTV cameras and around the
same time, the bricks were thrown by the followers of Respondent No. 4 upon the
Police. This aggravated the situation beyond control and, thereafter, the Police acted

with greater force and fired more teargas shells and even used lathis to disperse the
crowd.
126. Another aspect reflecting the lacuna in planning of the Police authorities for
executing such an order at such odd hour is also shown in the log book of the Police
where at about 2.39 a.m., a conversation between two police officers has been
recorded. As per this conversation, it was informed "You call at cellphone and inform
24B that he will also talk and that gate towards JLN Marg which was to be opened is
not open yet". Another conversation recorded at the same time was "Then public will
go at its own".
127. When the Police had decided to carry out such a big operation of evicting such a
large gathering suddenly, it was expected of it to make better arrangements, to
cogitate over the matter more seriously and provide better arrangements.
128. From the entries made in the Police log book, certain acts come to surface.
Firstly, that there were inadequate number of water cannons, as admittedly, there
were more than 15,000 persons present at the Ramlila Maidan and secondly, that the
Police had started beating the people. Even the 88th Bn. of CRPF was not carrying out
the orders and there was chaos at the premises. Even if all the documents filed by the
Police, the Police log book and the affidavits on behalf of the Police are taken into
consideration, it reflects lack of readiness on the part of the Police and also that it had
not prepared any action plan for enforcing the order of the executive authority passed
under Section 144 Code of Criminal Procedure. It was expected of the Police to make
elaborate, adequate and precise arrangements to ensure safe eviction of such large
number of persons, that too, at midnight.
129. Having dealt with this aspect, now I would proceed to discuss the injuries
suffered and the medical evidence placed before the Court. As per the affidavit of the
Police dated 17th June, 2011, total 38 Policemen were injured, some of them because
of brick batting by the supporters of Baba Ramdev. 48 persons from public were also
injured, 41 of them were discharged on the same date and 5 on the next day. Only 2
persons, including 1 woman, required hospitalization for medical treatment and
surgery. On the other hand, according to Respondent No. 4, hundreds of persons were
injured. However, they have placed on record a list of the injured persons as Annexure
R -13 wherein names of 55 persons have been given. Most of the injured persons were
taken to Lok Nayak Hospital, New Delhi. Copies of their medico legal enquiry
register/reports have been placed on record. Some of these injured persons were
taken to the hospital by the Police while some of them went on their own. In the
medico legal enquiry register relating to Rajbala, it has been stated that she suffered
cervical vertebral fracture and associated spinal cord damage. She was unable to move
both limbs, upper and lower, and complained of pain in the neck. She was treated in
that hospital and subsequently shifted to the ICU where she ultimately died. As per the
postmortem report, the cause of death as opined by the doctor was stated as "Death
in this case occurred as a Septicemia, following cervical vertebral fracture and
associated spinal cord damage". In some of the reports, it is stated that the patient
had informed of having suffered injury due to stampede at Ramlila Maidan. The person

who claims to have brought Rajbala to the hospital, Joginder Singh Bandral, has also
filed an affidavit stating that the Police had suddenly attacked from the stage side and
she had suffered injuries and fell unconscious.
130. It is undisputed that Rajbala suffered injuries in this incident. The injuries as
described in the medical records are as follows:
Local Examination:
1. Reddish bluish discolouration below and behind Left ear & another reddish
blue discolouration In Lateral middle of neck on (L) Side present.
2. Reddish Bluish Colouration seen below & behind (R) ear C
3. Large bluish discolouration present over Left buttock
4. Abrasion over Medical aspects of Left ankle.
5. Reddish discolouration over the flexor aspect of middle of Left forearm.
131. In addition, the medico legal case sheet of one Deepak recorded, "alleged c/o
assault while on hunger strike at Ramlila Maidan". He was vomiting, bleeding and had
suffered injuries and was complaining of pain at cervical region and right thigh. Similar
was the noting with regard to one Ajay. Both of them had gone to Dr. Ram Manohar
Lohia Hospital and were not accompanied by the Police. A number of such medico legal
case sheets have been placed on record with similar notings. I do not consider it
necessary to discuss each and every medico legal enquiry sheet or medico legal
report. It is clear from the bare reading of these reports that most of the persons who
were taken to the hospital had suffered injuries on their hands, back, thighs etc. and
were complaining of pain and tenderness which was duly noticed by the doctors in
these reports.
132. Constable Satpal had also gone to the hospital. According to him, he had suffered
injury 'a contusion' as a result of stone pelting at the Ramlila Maidan. Copies of medico
legal enquiry register in relation to other Police officers have also been placed on
record. Some Police personnel had also reported to Aruna Asif Ali Government
Hospital, Rajpura, Civil Lines, Delhi and had given the history of being beaten by the
crowd at Ramlila Maidan.
133. From these evidence placed on record, it is clear that both, the members of the
public as well as the Police personnel, had suffered injuries. It is obvious from various
affidavits, that a large number of followers of Baba Ramdev got injured. The number
of these persons was much higher in comparison to that of the Police. I may also
notice that in the affidavit filed by the Commissioner of Police, it has been stated that
the Police officers suffered injuries because of brick batting by some members of the
gathering at Ramlila Maidan. However, the affidavit of the Commissioner of Police is
totally silent as to how such a large number of persons suffered injuries, including
plain injuries, cuts, open injuries and serious cases like those of Rajbala and Jagat

Muni. According to Respondent No. 4, at least five persons had suffered serious
injuries including head injury, fracture of hand, leg and backbone. This included
Dharamveer, Madanlal Arya, Jagdish, Behen Rajbala, Swami Agnivesh and Jagat Muni,
etc.
134. If this medico legal evidence is examined in light of the photographs placed on
record and the CCTV camera footages, it becomes clear that these injuries could have
been caused by lathi charge and throwing of stone by the Police as well as the
members of the gathering. It cannot be doubted that some members of the Police
force had taken recourse to lathi charge and in the normal course, a blow from such
lathis could cause the injuries, which the members of the public had suffered.
135. I have no hesitation in rejecting the submission on behalf of the Police that none
of the police personnel lathi charged the people present at Ramlila Maidan. The factum
of lathi charge by some of the police personnel is demonstrated in the photographs,
footages of CCTV cameras as well as from the medical evidence on record. One Dr.
Jasbir has filed an affidavit stating that he had made a call from his Cell Phone No.
9818765641 to No. 100 informing them of Police assaulting the persons present and
the fact that he suffered injury as a result of lathi blows on his body. He had gone to
Lok Nayak Hospital where he was medically examined. This medical record shows that
he was assaulted by the Police in Baba Ramdev's rally where he sustained injuries. The
injuries were described as contusion injuries, one of which, on the lumber region and
was advised x-ray. Even in some of the other medical records produced before this
Court, it has been recorded that injuries were caused by blunt objects. This will go to
show that they were not the injuries caused merely by fall or simply stampede. The
veracity of this affidavit was challenged on the ground that it has been filed belatedly
and it was not supported by any other record. Both these aspects lose their
significance because in the Police log book filed on record, call from this number has
been shown, secondly, the medical record of Dr. Jasbir has been placed on record.
Also, the injuries received by the members of the Police force are of the kind which
could be caused by brick batting. It is further possible that because of commotion,
confusion and fear that prevailed at the stage during midnight and particularly when
people were sleeping, the injuries could also have been suffered due to stampede.
According to the Police, Rajbala probably had suffered the fracture of the cervical as
she fell from the stage and fell unconscious. This version does not find support from
the CCTV footages inasmuch as that no elderly lady at all is seen on the stage during
the entire episode shown to the Court. But, the fact of the matter is that she suffered
serious injuries which ultimately resulted in her death. It could be that she received
injury during use of lathis by the Police or when the crowd rushed as a result of firing
of teargas shells, etc.
136. The Police do not appear to have carried her on the stretcher or helped her in
providing transportation to the hospital. Precisely who is to be blamed entirely and
what compensation, if any, she is entitled to receive and from whom, will have to be
examined by the court of competent jurisdiction before whom the proceedings, if any,
are taken by the persons entitled to do so and in accordance with law. Certain
disputed questions of fact arise in this regard and they cannot be decided by the court

finally without granting opportunity to the appropriate parties to lead oral and
documentary evidence, as the case may be. For the purposes of the present petition, it
is sufficient for me to note that, prima facie, it was the negligence and a limited abuse
of power by the police that resulted in injuries and subsequent death of Smt. Rajbala.
Thus, in my considered view, at least some ad hoc compensation should be awarded to
the heirs of the deceased and other injured persons as well.
137. At this juncture, I would take note of the affidavits filed by the parties. In the
affidavit dated 6th July, 2011 filed on behalf of Respondent No. 4, it has been
specifically stated in paragraph 17:
It must be noted that as per the directions of the Police, only one entry/exit gate was
being kept open and this gate was manned by the police themselves, who were
screening each and every person who entered the premises. There was no disturbance
or altercation whatsoever and followers of Baba Ramdevji were peacefully waiting in
queues that stretched for over two kilometers. If the Police wanted to limit the number
of participants to 5000 or to any other number, they could easily have done so at the
gate itself. However, they made no attempt to either curtail the entry of persons or to
prevent the fast from proceeding.
138. Though an affidavit subsequent to this date has been filed on behalf of the Police,
there is no specific denial or any counter version stated therein in this regard. This
averment made in the affidavit of the Respondent No. 4 appears to be correct
inasmuch as vide its letter dated 2nd June, 2011, while granting the permission for
holding the rally at Ramlila Maidan, a condition had been imposed that all persons
entering the Ramlila Maidan should be subjected to frisking and personal search.
Furthermore, map of layout of the Ramlila Maidan filed by the learned amicus clearly
shows that there was one public entry gate/public check-in, in addition to the two
gates for the VIP check-in, which were towards the stage. The public entry was
towards the Sharbia Road. From this, it is clear and goes in line with the situation at
the site, exhibited by the photographs or the CCTV Cameras at least partially, that
there was only one main entry for the public which was being managed by the Police.
139. Even according to the Police, it was a huge enclosure of nearly 2.5 lakh sq. feet
and it had various exits which, of course, were kept closed and there was a ceiling all
over. A tent of this size with the ceiling thereon, was an enclosure, where such large
number of persons had gathered to participate in the yoga camp and thereafter, in the
Anshan.
140. It is the version of the Police that they had issued prior warning, then used water
cannons and only thereafter, used the teargas shells in response to the brick-batting
by the members of the gathering present behind the stage. This stand of the Police
does not inspire confidence. Firstly, it has nowhere been recorded in the CCTV
footages that they made any public announcement of the revocation of the
permissions and the passing of order under Section

144 Code of Criminal Procedure. and requested the people present to leave the
Ramlila Maidan. of course, it is clear from the record before this Court that effort was
made by the Police officers, who had a talk with the representatives of Respondent No.
4 as well, for service of order on Baba Ramdev, who did not accept the order and
jumped into the crowd in order to avoid the service of order as well as his exit from
the Ramlila Maidan. The stand taken by the Police in para 24 of its affidavit is that they
apprehended a backlash if they made the announcements themselves and, therefore,
they approached the organizers to inform the public over the PA system. This itself is
not in accordance with the Guidelines framed by the Police for execution of such
orders. The Standing Order 309 contemplates that there should be display of banner
indicating promulgation of Section 144 Code of Criminal Procedure., repeated use of
Public Address system by a responsible officer-appealing/advising the leaders and
demonstrators to remain peaceful and come forward for memorandum, their
deputation etc. or court arrest peacefully and requires such announcement to be
videographed. It further contemplates that if the crowd does not follow the appeal and
turns violent, then the assembly should be declared as unlawful on the PA System and
the same should be videographed. Warning on PA system prior to use of any kind of
force is to be ensured and also videographed. I find that there is hardly any
compliance to these terms of this Standing Order.
141. Use of water cannons by the Police is again a myth. As I have already noticed
from the Police logbook there was only one water cannon available which was
positioned at the VIP entrance. Furthermore, even the CCTV camera footages or the
photographs do not show any use of water cannons. I see no reason for the Police for
not making preferential use of water cannons to disperse the crowd even if they had
come to the conclusion that it was an unlawful assembly and it was not possible to
disperse the crowd without use of permissible force in the prescribed manner.
142. There is a serious dispute as to whether the teargas shells were fired in response
to the brick-batting by the members of the assembly from behind the stage or was it
in the reverse order. The photographs show that there was a temporary structure
behind the stage where bricks were lying and the same were collected and thrown
from there. The CCTV Camera No. 5 clearly shows that some members of the
assembly (followers of Baba Ramdev) collected the bricks and then threw the bricks at
the Police towards the stage. The first teargas shell was fired at about 2.20 a.m. The
first brick probably was thrown from behind the stage by Baba Ramdev's followers
approximately at 2.12 a.m. The teargas shells were also fired during this time. Before
that, some members of the Police force had used sticks or lathi charged on the people
to move them out of the Ramlila Maidan. Some photographs clearly show the Police
personnel hitting the members of the assembly with sticks. The exact time of these
incidents is not available on the photographs. The firing of teargas shells created
greater commotion and fear in the minds of the members of the gathering. The
violence on the part of the Police increased with the passage of time and the Police
retaliated to the bricks hurled at them by the members of the assembly with greater
anger and force. This resulted in injuries to both sides and serious injuries to some of
the people and resultant death of one of the members of the public.

143. The persons at the realm of affairs of the Police force have to take a decision
backed by their wisdom and experience whether to use force or exercise greater
control and restraint while dispersing an assembly. They are expected and should have
some freedom of objectively assessing the situation at the site. But in all events, this
would be a crucial decision by the concerned authorities. In the present case, the
temptation to use force has prevailed over the decision to exercise restraint. Rule
14.56 of the Punjab Police Rules (which are applicable to Delhi) provides that the main
principle to be observed is that the degree of force employed shall be regulated
according to the circumstances of each case. The object of the use of force should be
to quell the disturbance of peace or to disperse the assembly which threatens such
disturbance and has either refused to disperse or shows a determination not to
disperse. Standing Order 152 deals particularly with the use of tear smoke in dispersal
of unlawful assemblies and processions. This Standing Order concerns with various
aspects prior as well as steps which are required to be taken at the time of use of tear
smoke. It requires that before tear smoke action is commenced, a suitable position
should be selected for the squad, if circumstances permit, forty yards away from the
crowd. A regular warning by the officer should be issued while firing the tear smoke
shells, the speed of wind, area occupied by the crowd and the temper of the crowd,
amongst others, should be taken into consideration. It states that apparently the
object of use of force should be to prevent disturbance of peace or to disperse an
unlawful assembly which threatens such disturbance.
144. Normally, it is not advisable to use tear smoke shells in an enclosure. They should
be fired away from the crowd rather than into the crowd. Unfortunately, the guidelines
and even matters of common prudence have not been taken into consideration while
firing the teargas shells. The Police Force and, at least, some members of the Police
Force, have failed to execute the orders in accordance with the standing orders and
have failed to take various steps that were required to be taken including use of
minimum force, videography of the event, display of banner, announcement into the
PA system etc. Similarly, some members of the Force when incited by provocation or
injury, used excessive force, including use of teargas. It is also clear from the
photographs and the CCTV Cameras that some members of the Force inflicted injuries
by indulging in uncalled for lathi charge and by throwing stones on the public. It is
evident that lathi charge against those persons was not called for. For example, in one
of the CCTV Cameras, one individual is surrounded by four-five members of the Force
and then a Police personnel used canning against that individual.
145. I will proceed on the basis that teargas shells were fired in retaliation to the
brick-batting by the crowd. Even in that event, the Police should have made proper
announcements. The Police had sufficient preparedness to protect itself against such
attack and they should have fired the teargas shells to the site from where the bricks
were coming rather than in front and on the stage. Once the teargas shells were fired
into the tent where large number of people were present, it was bound to result in
injuries and harm to the public at large. If the authorities had taken the decision to
disperse the crowd by use of teargas, then they should have implemented that
decision with due care and precautions that they are required to take under the
relevant guidelines and Rules. It was primarily the firing of the teargas shells and use

of cane sticks against the crowd that resulted in stampede and injuries to a large
number of people.
146. Admittedly, when the Police had entered the tent, the entire assembly was
sleeping. It is not reflected in the affidavit of the Police as to what conditions existed at
that time compelling the authorities to use force. This, in the opinion of the Court, was
a crucial juncture and the possibility of requiring the members of the assembly to
disperse peacefully in the morning hours was available with the authorities.
147. This certainly does not mean that throwing of bricks upon the Police by the
members of the assembly can be justified on any ground. The few persons who were
behind the stage and threw the bricks, either from the corner of the stage or from
behind the stage, are guilty of the offence that they have committed. Nothing absolves
them of the criminal liability that entails their actions. Even if tear smoke shells were
fired by the Police first, still the crowd had no justification to throw bricks at the Police
and cause hurt to some of the Policemen. The Police had a duty to keep a watch on
the people from the point of view of maintaining the law and order. It appears that
firing of teargas shells in the direction of the crowd was contrary to the guidelines and
it led to some people getting breathless and two of them falling unconscious. This also
prevented the people present there from reaching the exit gates. Similarly, some of
the followers of Respondent No. 4 became unruly and used smoke to create a curtain
in front of themselves, before they started throwing bricks at the Police. In the
process, they injured their fellow participants as well as the Police personnel. The
teargas shells also caused fire on the stage, as is demonstrated in CCTV camera No.
31 at about 2.22 a.m., and confirmed by various news report footages. It shows that
there was lack of fire extinguishing systems. The teargas shells also caused fire in an
enclosure with cloth material which could have caught fire that might have spread
widely causing serious bodily injuries to the people present. Undoubtedly, large Police
force was present on the site and even if it had become necessary, it could have
dispersed the crowd with exercise of greater restraint and patience.
148. The Police Force has failed to act in accordance with the Rules and Standing
Orders. Primarily, negligence is attributable to some members of the force. The Police,
in breach of their duty, acted with uncontrolled force. The orders were passed
arbitrarily by the concerned authorities and, thus, they are to be held responsible for
the consequences in law. As discussed in this judgment, Respondent No. 4, its
members and Baba Ramdev committed breach of their legal and moral duty and acted
with negligence contributing to the unfortunate incident rendering themselves liable
for legal consequences resulting therefrom.
149. I may further notice that the conduct of the representatives of Respondent No. 4,
as well as of Baba Ramdev in jumping from the stage into the crowd, while declining to
accept the orders and implement them, is contrary to the basic rule of law as well as
the legal and moral duty that they were expected to adhere to. Thus, they have to be
held guilty of breach of these legal and moral duties as Injuria non excusat injuriam.

150. Now, I may have a look at the genuineness/validity of the 'threat perception'
which formed the basis for passing of the said orders by the State/Police. I have
referred to this aspect in some detail above and suffice it to note here that till 3rd
June, 2011, none of the authorities had considered it appropriate to revoke the
permission and pass an order under Section 144 Code of Criminal Procedure. On the
contrary, the authorities had required the organizers to take more stringent measures
for proper security. They had also drawn a proper deployment plan. It appears that
failure of negotiations between the Government and Baba Ramdev at Hotel Claridges
on 3rd June, 2011, left its shadow on the decision-making power of the Police. This
proved to be the turning point of the entire episode. If the Police had apprehended
that large number of persons may assemble at the Ramlila Maidan, this could have
been foreseen as a security threat. Therefore, the proper method for the authorities
would have been to withdraw the permissions well in time and enforce them
peacefully. It has been left to the imagination of the Court as to what were the
circumstances that led to passing of orders revoking permission and particularly when
even the MCD had not cancelled or revoked its permission in favour of Respondent No.
4 to continue with its activity till 20th June, 2011. Great emphasis was placed, on
behalf of the Police, upon the fact that the representatives of Respondent No. 4 had
not given the correct information to the Police. This again does not describe the
correct state of affairs. The Intelligence Agencies had given all requisite information to
Delhi Police and after taking the same into consideration, Delhi Police had passed
orders on 2nd and 3rd June, 2011 requiring the organizers to take certain
precautionary steps. Another interesting fact, that I must notice, is that as early as on
20th May, 2011, representatives of Respondent No. 4 had written to the Additional
Commissioner of Police vide Annexure R3 informing them that Baba Ramdev is going
on a hunger strike till death from 4th June, 2011 against the issue of corruption and
other related serious issues. Hundreds of satyagrahis were providing their support to
him in this hunger-strike and consent for that was asked. The letter written by Baba
Ramdev to the Prime Minister of the country had also been attached along with this
letter. The Police was aware of the number of persons who might assemble and the
activity that was likely to be carried on at Ramlila Maidan as well as Jantar Mantar.
Still, after the receipt of the letter, the Police took no steps to cancel the permission
specifically and the permissions granted continued to be in force. It was for the police
authorities or the administration to place on record the material to show that there
was a genuine threat or reasonable bias of communal disharmony, social disorder and
public tranquility or harmony on the night of 4th June, 2011. However, no such
material has been placed before this Court. Right from Babulal Parate (supra), this
Court has taken a consistent view that the provisions of Section 144 Code of Criminal
Procedure. cannot be resorted to merely on imaginary or likely possibility or likelihood
or tendency of a threat. It has not to be a mere tentative perception of threat but a
definite and substantiated one. I have already recorded that none of the concerned
authorities, in their wisdom, had stated that they anticipated such disturbance to
public tranquility and social order that there was any need for cancellation of the
permissions or imposition of a restriction under Section 144 Code of Criminal
Procedure. as late as till 10.40 p.m. on 4th June, 2011, which then was sought to be
executed forthwith.

151. There is a direct as well as implied responsibility upon the Government to

function openly and in public interest. Each citizen of India is entitled to enforce his
fundamental rights against the Government, of course, subject to any reasonable
restrictions as may be imposed under law. The Government can, in larger public
interest, take a decision to restrict the enforcement of freedom, however, only for a
valid, proper and justifiable reason. Such a decision cannot be arbitrary or capricious.
152. Another important facet of exercise of such power is that such restriction has to
be enforced with least invasion. I am unable to understand and, in fact, there is
nothing on record which explains the extra-ordinary emergency that existed on
midnight of 4th/5th June, 2011 which led the police to resort to waking up sleeping
persons, throwing them out of the tents and forcing them to disperse using force, cane
sticks, teargas shells and brick-batting. I am also unable to understand as to why this
enforcement could not even wait till early next morning i.e. 5th June, 2011. This is a
very crucial factor and the onus to justify this was upon the State and the Police and I
have no hesitation in noticing that they have failed to discharge this onus. This
decision, whether taken by the Police itself or, as suggested by the learned amicus,
taken at the behest of the people in power and the Ministry of Home Affairs, was
certainly amiss and a decision which is arbitrary and unsustainable, would remain so,
irrespective of the number of persons or the hierarchy of the persons in the
Government who have passed the said decision. I find no error with the Police, to
working in tandem or cooperation with the Ministry of Home Affairs, which itself is
responsible for maintaining the law and order in the country. I also have to notice that
as per the stand taken by all the parties before this Court, it remains a fact that no
announcement was made on the midnight of 4th/5th June, 2011 to the huge gathering
sleeping to disperse peacefully from the Ramlila Maidan. It was an obligation of the
Police to make repeated announcements and help the people to disperse. The Police,
admittedly, did not make any such announcements because it anticipated a backlash.
Baba Ramdev and other representatives of Respondent No. 4 also did not make such
an announcement, but Baba Ramdev asserted that he would leave only if the people
and the followers wanted him to leave. I am unable to appreciate this kind of attitude
from both sides. It was primarily an error of performance of duty by both sides and
the ultimate sufferer was the public at large.
153. It is true and, without hesitation, I notice that the CCTV cameras and other
documents do show that some of the Police personnel had behaved with courtesy and
kindness with the members of the gathering and had even helped them to disperse
and leave the Ramlila Maidan. At the same time, some others had misbehaved, beaten
the people with brutality and caused injuries to the public present at the Ramlila
Maidan. Thus, I cannot blame the entire Police Force in this regard.
154. The learned amicus raised another issue that the Home Secretary, Union of India
and the Chief Secretary, Delhi had not filed proper affidavits in relation to the incident.
In fact, the Home Secretary did not file any affidavit till this was raised as an issue by
the Learned Counsel appearing for Respondent No. 4. Factually, it is correct. The
affidavits filed by the Chief Secretary, Delhi as well as the Home Secretary are not
proper in their form and content. The Home Secretary, on the one hand stated that he

had taken charge of the post with effect from 21st July, 2011, while, on the other,
admitted that he had received the report from the Special Commissioner of Police. He
further stated that it is not the practice of the Ministry to confirm the grant of such
permission. His affidavit is at variance with the affidavit of the Police Commissioner.
According to him, the entry of large number of persons posed a threat to the
gathering, such as, likely stampede and entry of unruly elements into the crowd. Both
these circumstances, as noticed above, do not stand even remotely to reason. Further,
I am somewhat surprised at the insensitivity reflected in the following lines stated in
the affidavit of the Home Secretary, 'I state and submit that the facts suggest that the
injuries to a few (out of thousands gathered as per report) are said to have been
caused due to minor stampede and that there was no manhandling of women, elderly
persons or children. There were 03 women Police officers of the rank of Deputy
Commissioner of Police on duty'. I have no hesitation in observing that it is the duty of
the State to ensure that each and every citizen of the country is protected. Safety of
his person and property is the obligation of the State and his right. In view of the
affidavit filed by the Police Commissioner, where he has owned the entire responsibility
for the entire Police hierarchy, I do not propose to attach much significance to this
contention. According to the Commissioner, he informed the Additional Secretary in
the Ministry of Home Affairs of the developments and the latter might have informed
the higher authorities in the said Ministry. I also find no need to enter into this
controversy because there is no legal impediment or infirmity in Delhi Police working in
coordination and consultation with the Ministry of Home Affairs as none of them can
absolve themselves of the liability of maintaining social order, public tranquility and
harmony.
155. Mr. P.H. Parekh, learned senior advocate appearing for the Government of NCT
Delhi, submitted that the power to issue an order under Section 144 Code of Criminal
Procedure. is vested in the Assistant Commissioner of Police in terms of notification
dated 9th September, 2010 issued by the Ministry of Home Affairs, Government of
India under Sub-section(1)(a) of Section 17 of the DP Act. It is further submitted that
in terms of Article 239AA(3)(a), the Legislative Assembly of the NCT Delhi has
legislative competence to enact laws on any matter as applicable to the Union Territory
except in relation to fields stated at Entries 1, 2 and 18 of List II of the Seventh
Schedule to the Constitution of India. Thus, the matters relating to Police, land and
public order do not fall within the legislative and administrative power of the
Government of NCT Delhi. The Home Secretary, in his affidavit, on the other hand, has
stated that the Ministry of Home Affairs neither directed nor is consulted by Delhi
Police in such Police measures which are to be taken with a view to keep the law and
order situation under control. He also stated that it is not the practice of the Ministry
to confirm the matters of grant of such permissions. I am unable to see any merit in
these submissions or for that matter even the purpose of such submissions. The
Ministry of Home Affairs, Delhi Government and the Police are not at cross purposes in
relation to the questions of social order and law and order. It is their cumulative
responsibility. The lists in the Seventh Schedule to the Constitution are fields of
legislation. They are unconnected with the executive action of the present kind. The
Ministry of Home Affairs, Union of India is not only responsible for maintaining the law
and order but is also the supervisory and controlling authority of the entire Indian

Police Services. It is the duty of the Union to keep its citizens secure and protected.
Thus, I consider it unnecessary to express any view on this argument advanced by Mr.
P.H. Parekh. The scope of an order made under Section 144Code of Criminal
Procedure., its implications and infirmities with reference to the facts of the case in
hand
156. By reference to various judgments of this Court at the very outset of this
judgment, I have noticed that an order passed in anticipation by the Magistrate
empowered under Section 144 Code of Criminal Procedure. is not an encroachment of
the freedom granted under Articles 19(1)(a) and 19(1)(b) of the Constitution and it is
not regarded as an unreasonable restriction. It is an executive order, open to judicial
review. In exercise of its executive power the executive authority, by a written order
and upon giving material facts, may pass an order issuing a direction requiring a
person to abstain from doing certain acts or take certain actions/orders with respect to
certain properties in his possession, if the officer considers that such an order is likely
to prevent or tends to prevent obstruction, annoyance or injury to any other person.
On the bare reading of the language of Section 144 Code of Criminal Procedure., it is
clear that the entire basis of an action under this Section is the 'urgency of the
situation' and the power therein is intended to be availed for preventing 'disorder,
obstruction and annoyance', with a view to secure the public weal by maintaining
public peace and tranquility. In the case of Gulam Abbas v. State of Uttar Pradesh:
AIR 1981 SC 2198, the Court clearly stated that preservation of public peace and
tranquility is the primary function of the Government and the aforesaid power is
conferred on the executive. In a given situation, a private right must give in to public
interest.
157. The Constitution mandates and every Government is constitutionally committed
to the idea of socialism, secularism and public tranquility. The regulatory mechanism
contemplated under different laws is intended to further the cause of this
constitutional obligation. An order under Section 144 Code of Criminal Procedure.,
though primarily empowers the executive authorities to pass prohibitory orders vis-vis a particular facet, but is intended to serve larger public interest. Restricted
dimensions of the provisions are to serve the larger interest, which at the relevant
time, has an imminent threat of being disturbed. The order can be passed when
immediate prevention or speedy remedy is desirable. The legislative intention to
preserve public peace and tranquility without lapse of time, acting urgently, if
warranted, giving thereby paramount importance to the social needs by even
overriding temporarily, private rights, keeping in view the public interest, is patently
inbuilt in the provisions under Section 144 Code of Criminal Procedure.
158. Primarily, the MCD owns the Ramlila Maidan and, therefore, is holding this
property as a public trustee. The MCD had given permission to use the Ramlila Maidan
for holding yoga shivir and allied activities with effect from 1st June, 2011 to 20th
June, 2011. The Police had also granted permission to organize the yoga training
session at Ramlila Maidan for the same period vide its letter dated 25th April, 2011.
The permission was granted subject to the conditions that there should not be any
obstruction to the normal flow of traffic, sufficient number of volunteers should be

deployed at the venue of the training camp, permission should be sought from the
land owning agency and all other instructions that may be given by the Police from
time to time should be implemented. Lastly, that such permission could be revoked at
any time.
159. Vide letter dated 27th May, 2011, the Deputy Commissioner of Police, Central
District, had sought clarification from the President of Respondent No. 4 that the
permission had been granted only for holding a yoga training camp for 4000 to 5000
persons, but the posters and pamphlets circulated by the said Respondent indicated
that they intended to mobilize 25,000 persons to support Baba Ram Dev's indefinite
fast at Ramlila Maidan, which was contrary to the permission sought for. Respondent
No. 4, vide letter dated 28th May, 2011, reiterated and re-affirmed its earlier letter
dated 20th April, 2011 and stated that there would be no programme at all, except the
residential yoga camp. Keeping in view the facts and the attendant circumstances, the
Deputy Commissioner of Police (Central District) vide his letter dated 1st June, 2011,
informed the office bearers of respondent No. 4 that in view of the current scenario
and the law and order situation prevailing, they were required to make adequate
arrangements for screening of people visiting the Ramlila Maidan for yoga shivir and
directed further arrangements to be made as per the instructions contained in that
letter. It was noticed in the letter of the DCP that a specialized tent of an area of
2,50,000 sq. ft. was to be erected, a dais was to be constructed and structures
erected were to be duly certified from the authorized agency. It was also, inter alia,
stated that no provocative speech or shouting of slogan should be allowed and no fire
arms, lathis or swords should be allowed in the function and CCTV cameras should also
be installed. It was further stated that the Trust was to abide by all the directions
issued by the SHO. Again, on 2nd June, 2011, a letter was written by the Deputy
Commissioner of Police noticing certain drawbacks in the arrangements made by the
Trust and reiterating the directions passed vide letter dated 1st June, 2011. It was
required that the Trust should keep the gathering within the permissible limits and
make necessary arrangements for checking/frisking of participants and placing of
volunteers in requisite areas. It was also indicated that if the compliance is not made,
permission shall be subject to review. Certain inputs given by the Special Branch of
Delhi Police on 30th May, 2011 stated that Baba Ramdev planned to hold indefinite
hunger strike along with 30,000 to 35,000 supporters with effect from 4th June, 2011,
the birth anniversary of Maharana Pratap, at the Ramlila Maidan. As per that report,
the protest was on the following issues:
1. To bring the black money worth Rs. for 400 lakhs crores, which is national
property.
2. To demand the legislation of strong Lokpal Bill to remove corruption
completely.
3. Removal of foreign governing system in independent India so that everyone
can get social and economic justice.

160. It was further stated that the gathering may exceed 1 lakh. The letter also
indicated that some of the workers would straightaway reach Jantar Mantar on 4th
June, 2011 and would submit memorandum to the President and the Prime Minister of
India. Expressing the apprehensions on these outputs, it was indicated in the Report
as under:
The volunteers of the said organizations are well dedicated, tech savvy and using
Laptops in their routine working, with sound financial status of the organization, the
possibility of the gathering of about 1 lakh, as claimed by the organizers, cannot be ruled
out. Any minor incident at the venue not only may affect law and order situation but also
may affect peace in the city creating serious law and order problems. Local Police,
therefore, will have to be extra vigilant. The possibility of some agent provocation or
subversive elements attempting to cause disturbance/sabotage by merging with the
crowds would also need to be kept in mind. It should also be noted that as per reliable
inputs, large congregations continue to remain the top targets of terrorists.
161. The Special Branch, thus, suggested taking of some precautions like making of
adequate security arrangements by the local Police, deployment of quick response
teams, ambulances, fire tenders, etc. and to deploy sufficient number of traffic Police
personnel to ensure smooth flow of traffic around Raj Ghat Red Light, Ramlila Maidan
etc. and concluded as under:
Therefore, a sharp vigil, adequate arrangements by local police, PCR, Traffic Police are
suggested at and near Ramlila Ground, R.S. Fly-over, enroute, Jantar Mantar to avoid
any untoward incident. Further, Delhi-UP/Haryana Borders need to be sensitized.
162. As is obvious from the above letters and the reports, nobody had suggested
cancellation of the permission granted by the land owning authority or the Police for
continuation of the activity by Respondent No. 4, though they were aware of all the
facts. The Central District of Delhi Police, on 2nd June, 2011 itself, noticed all the
factors and made a report with regard to the Police arrangements at the Ramlila
Maidan. Amongst others, it stated the following objectives:
1. All the persons will gain entry through DFMDs.
2. Every person will be searched/frisked thoroughly to ensure the security of
VIPs/high dignitaries, Govt. property and general public etc.
3. To ensure clear passage to VIPs and their vehicles with the assistance of
traffic police.
4. To ensure that the function is held without interruption.
5. To keep an eye on persons moving in suspicious circumstances.
6. Brief-cases, lighters, matches, bags, umbrellas, tiffin-boxes etc. be
prohibited to be taken by the audience inside the ground. Special attention will
be paid on minor crackers, inside the ground.

7. The area of responsibility will be thoroughly checked by the Zonal/Sector

officers.
8. To maintain law and order during the function.
163. In this report itself, it had worked out the details of deployment, patrolling,
timing of duties, supervision and assembly points etc. In other words, on 2nd June,
2011, the Police, after assessing the entire situation, had neither considered it
appropriate to cancel the permissions nor to pass an order under Section 144Code of
Criminal Procedure. On the basis of the input reports, the Joint Deputy Director,
Criminare, had asked for proper security arrangements to be made for Baba Ramdev
in furtherance to which the security of Baba Ramdev was upgraded.
164. In furtherance to the permission granted, the yoga shivir was held and a large
number of persons participated therein. All went well till 3rd June, 2011 and it is
nobody's case before the Court that any conditions were violated or there was any
threat, much less imminent threat, to public peace and tranquility. The yoga camp
carried its activities for those days.
165. As already noticed, Baba Ramdev had also been granted permission to hold a
hunger strike/Satyagrah at the Jantar Mantar on 4th June, 2011. The restriction placed
was that it should be with a very limited gathering. Further, vide letter dated 26th May,
2011, the Police had reiterated that the number of persons accompanying Baba
Ramdev should not exceed 200. However, vide letter dated 4th June, 2011, the
permission granted in relation to holding of dharna at Jantar Mantar was revoked, in
view of the security, law and order reasons and due to the large gathering exceeding
the number mentioned in the permission given. Later, on 4th June, 2011, the
permission to organize yoga training camp at the Ramlila Maidan was also cancelled.
166. It was stated that the activity being in variation to the permission granted and in
view of the security scenario of the capital city, it may be difficult for the Police to
maintain public order and safety. The organisers were further directed that no
follower/participant should assemble at the venue or should hold hoardings etc., on
that very date, an order under Section 144 Code of Criminal Procedure. was passed.
The order recited that an information had been received that some people, groups of
people may indulge in unlawful activities to disturb the peace and tranquility in the
area of Sub- Division Kamla Market, Delhi and it was necessary to take speedy
measures in this regard to save human life, public order safety and tranquility. This
order was to remain in force for a period of 60 days from the date of its passing.
167. During the course of hearing, it was pointed out before this Court that the order
withdrawing the permission was passed at 9.30 p.m. At 10.30 p.m., the Police went to
inform the representatives of Respondent No. 4 about the withdrawal of permission
and subsequently an order under Section 144 Code of Criminal Procedure. was passed
at about 11.30 p.m. The Police force arrived at the site at about 1.00 a.m. and the
operation to disperse the crowd started at 1.10 a.m. on the midnight of 4th/5th June,
2011.

168. It was contended by Mr. Harish Salve, learned senior Counsel, that the decision to
withdraw permission is an administrative decision taken with political influence. The
Police is to work in co- ordination with the Government, including the concerned
Ministry and the Union. The order, being an executive order, has been passed bona fide
and keeping in view the larger public interest and it is open to Respondent No. 4 or the
affected parties to challenge the said order in accordance with law. It was also urged
that this Court may not deal with the merits of the said order, as there is no challenge
to these orders. There is no specific challenge raised by Respondent No. 4 and for that
matter by any affected party to the orders of withdrawal of permission and imposition
of restrictions under Section 144 Code of Criminal Procedure. In this view of the
matter, it may not be necessary for this Court to examine these orders from that point
of view. But the circumstances leading to passing of these orders and the necessity of
passing such orders with reference to the facts of the present case is a matter which
has to be examined in order to arrive at a final conclusion, as it is the imposition of
these orders that has led to the unfortunate occurrence of 4th June, 2011. Therefore,
while leaving the parties to challenge these orders in accordance with law, if they so
desire, I would primarily concentrate on the facts leading to these orders and their
relevancy for the purposes of passing necessary orders and directions.
169. Though the MCD is the owner of the property in question, but still it has no role
to play as far as maintenance of law and order is concerned. The constitutional
protection available to the citizens of India for exercising their fundamental rights has
a great significance in our Constitution. Article 13 is indicative of the significance that
the framers of the Constitution intended to attach to the fundamental rights of the
citizens. Even a law in derogation of the fundamental rights, to that extent, has been
declared to be void, subject to the provisions of the Constitution. Thus, wherever the
State proposes to impose a restriction on the exercise of the fundamental rights, such
restriction has to be reasonable and free from arbitrariness. It is for the Court to
examine whether circumstances existed at the relevant time were of such imminent
and urgent nature that it required passing of a preventive order within the scope of
Section 144Code of Criminal Procedure., on the one hand, and on the other, of
imposing a restriction on exercise of a fundamental right by Respondent No. 4 and
persons present therein by withdrawing the permissions granted and enforcing
dispersal of the gathering at the Ramlila Maidan at such odd hour. At this stage, it will
be useful for me to notice another aspect of this case. Baba Ramdev is stated to have
arrived in Delhi on 1st June, 2011 and four senior ministers of the UPA Government
met him at the Airport and attempted to persuade him to give up his Anshan in view
of the Government's initiative on the issue that he had raised. Efforts were made to
dissuade him from going ahead with his hunger strike on the ground that the
Government was trying to find pragmatic and practical solution to tackle the agitated
issue. Thereafter, as already noticed, a meeting of the ministers and Baba Ramdev
was held at Hotel Claridges. However, this meeting was not successful and certain
differences remained unresolved between the representatives of the Government and
Baba Ramdev. Consequently, Baba Ramdev decided to continue with his public
meeting and hunger strike. Emphasis has been laid on a Press Release from the
Ministry of Home Affairs stating that a decision was taken that Baba Ramdev should

not be allowed to organize any protest and, if persisted, he should be directed to be

removed from Delhi.
170. These circumstances have to be examined in conjunction with the stages of
passing of the orders under Section 144 Code of Criminal Procedure. in relation to the
withdrawal of permission. Without commenting upon the Intelligence reports relied
upon by the Police, the Court cannot lose sight of the fact that even the intelligence
agency, the appropriate quarters in the Government, as well as the Police itself, had
neither recommended nor taken any decision to withdraw the permission granted or to
pass an order under Section 144 Code of Criminal Procedure., even till 3rd June, 2011.
On the contrary, after taking into consideration various factors, it had upgraded the
security of Baba Ramdev and had required the organizers, Respondent No. 4, to take
various other measures to ensure proper security and public order at Ramlila Maidan.
171. It is nobody's case that the directions issued by the appropriate authority as well
as the Police had not been carried out by the organisers. It is also nobody's case that
the conditions imposed in the letters granting permission were breached by the
organisers at any relevant point of time. Even on 3rd June, 2011, the Deputy
Commissioner of Police, Central District, who was the officer directly concerned with
the area in question, had issued a restricted circular containing details of the
arrangements, the objectives and the requirements which the deployed forces should
take for smooth organization of the camp at Ramlila Maidan. The threat of going on a
hunger strike extended by Baba Ramdev to personify his stand on the issues raised,
cannot be termed as unconstitutional or barred under any law. It is a form of protest
which has been accepted, both historically and legally in our constitutional
jurisprudence. The order passed under Section144 Code of Criminal Procedure. does
not give any material facts or such compelling circumstances that would justify the
passing of such an order at 11.30 p.m. on 4th June, 2011. There should have existed
some exceptional circumstances which reflected a clear and prominent threat to public
order and public tranquility for the authorities to pass orders of withdrawal of
permission at 9.30 p.m. on 4th June, 2011. What weighed so heavily with the
authorities so as to compel them to exercise such drastic powers in the late hours of
the night and disperse the sleeping persons with the use of force, remains a matter of
guess. Whatever circumstances have been detailed in the affidavit are, what had
already been considered by the authorities concerned right from 25th May, 2011 to
3rd June, 2011 and directions in that behalf had been issued. Exercise of such power,
declining the permission has to be in rare and exceptional circumstances, as in the
normal course, the State would aid the exercise of fundamental rights rather than
frustrating them.
172. Another argument advanced on behalf of Respondent No. 4 by Mr. Ram
Jethmalani is that the Order under Section 144, Code of Criminal Procedure. is a fraud
upon law as it is nothing but abdication of its authority by Police at the command of
the Home Minister, Mr. P. Chidambaram, as is evident from his above-referred
statements. According to him, the Order under Section 144 Code of Criminal
Procedure., on the one hand, does not contain material facts while on the other, issues
no directions as contemplated under that provision. Further it is contended that the

Intelligence inputs as communicated to the Police authorities vide letter dated 3rd
June, 2011 had not even been received by the ACP.
173. There is some substance in this submission of Mr. Ram Jethmalani. It is clear
from Annexure 'J' annexed to the affidavit of the Police Commissioner that the letter of
the Joint Deputy Director dated 3rd June, 2011 referring to threat on Baba Ramdev
and asking the police to review and strengthen the security arrangements, was
actually received on 6th June, 2011 in the Office of the Commissioner of Police and on
7th June, 2011 in the Office of the Joint Commissioner of Police.
174. Thus, it could be reasonably inferred that this input was not within the knowledge
of the officer concerned. I do not rule out the possibility of the Intelligence sources
having communicated this input to the Police authorities otherwise than in writing as
well. But that would not make much of a difference for the reason that as already
held, the Order under Section 144 Code of Criminal Procedure does not contain
material facts and it is also evident from the bare reading of the Order that it did not
direct Baba Ramdev or Respondent No. 4 to take certain actions or not take certain
actions which is not only the purpose but is also the object of passing an Order under
Section 144, Code of Criminal Procedure.
175. Mr. Harish Salve, learned senior Counsel, also contended that the police had
neither abdicated its functions nor acted mala fide. The Police had taken its decisions
on proper assessment of the situation and bona fide. Two further affidavits dated 9th
January, 2012 and 10th January, 2012 were filed on behalf of the Police. They were
filed by the Additional Deputy Commissioner of Police, Central District and Special
Commissioner of Police, Law and Order, Delhi. These affidavits were filed primarily with
an effort to clarify the details of the log book, the position of water cannons, entries
and exit of the tent and number of PCR vans, ambulances arranged for evacuation of
the gathering. For example, in the log book dated 5th June, 2011 at 2.14 am, details
have been mentioned, 'Police is arresting to Baba Ramdev in which death can be
caused'. It is stated that this was not the conversation between two Police officers as
such but one Vipen Batra, who possessed the telephone 8130868526 had rung up. The
PCR of the Police informed them of the above fact. This, in turn, was communicated by
Constable No. 8276 of the PCR to the Police Station. Similarly, on 5th June, 2011 at
3:22:53, another call was received by Constable Sheetal No. 8174 PCR from the phone
of one Shri Chander Mohan stating that policemen were beating people in Ramlila
Ground. These explanations may show that it were the messages received by the PCR
vans from private people who had left Ramlila Ground but there is nothing on record to
show that these messages or reports to the PCRs were false. In fact, such calls go to
substantiate what has been urged by the learned amicus. The affidavits do not
improve the case of the Police any further. As far as the question of mala fides is
concerned, I have held that this action or order was not mala fide.
176. Another important aspect which had been pointed out during the course of
hearing is that even the map annexed to this affidavit of the Police supports what has
been stated on behalf of Respondent No. 4 that there was only one main entry and
exit for the public. The VIP entrance and VVIP entrance cannot be construed as

entrance for the common man. The other exits were not operational owing to
commotion, goods lying, fire of tear gas shells and standing of vehicles outside which
were not permitted to move. This itself is a factor that goes to show that preparedness
on the part of the Police was not complete in all respects and also that it was not the
appropriate time to evict people from the Ramlila Ground.
177. In the affidavit filed by the Police, it has been stated that as a large number of
persons were expected to gather on the morning of 5th June, 2011, it was inevitable
for the authorities of the State to enforce the execution of the order under
Section 144 Code of Criminal Procedure. and the withdrawal of permission at the
midnight itself. It is also averred that Respondent No. 4 had made certain
misrepresentations to the authorities. Despite query from the authority, they had
incorrectly informed that only a yoga camp will be held at the premises of Ramlila
Maidan, though Baba Ramdev had planned to commence his hunger strike from 4th
June, 2011 at that place in presence of large gathering.
178. This argument, in my view, does not advance the case of the Police any further
as Baba Ramdev had already started his fast and he, as well as all his followers, were
peacefully sleeping when these orders were passed and were sought to be enforced
against them. The Trust might not have given the exact and correct information to the
Police but the Police already had inputs from the Intelligence Agencies as well as
knowledge on its own that a hunger strike, in presence of large number of people, was
to start from 4th June, 2011, which, in fact, did start.
179. From the record before this Court, it is not clear as to why the State did not
expect obedience and cooperation from Baba Ramdev in regard to execution of its
lawful orders, particularly when after withdrawal of the permission for holding dharna
at Jantar Mantar, Baba Ramdev had accepted the request of the Police not to go to
Jantar Mantar with his followers. The attendant circumstances appearing on record as
on 3rd June, 2011 did not show any intention on their part to flout the orders of the
authorities or to cause any social disorder or show threat to public tranquility by their
action. The doubts reflected in the affidavits were matters which could have been
resolved or clarified by mutual deliberations, as it was done in the past. The directions
issued to Respondent No. 4 on 1st June, 2011 were to ensure proper security of all
concerned. Material facts, imminent threat and requirement for immediate preventive
steps should exist simultaneously for passing any order under Section 144 Code of
Criminal Procedure. The mere change in the purpose or in the number of persons to be
gathered at the Ramlila Maidan simplicitor could hardly be the cause of such a grave
concern for the authorities to pass the orders late in the night. In the Standing Order
issued by the Police itself, it has been clarified that wherever the gathering is more
than 50,000, the same may not be permitted at the Ramlila Maidan, but they should
be offered Burari ground as an alternative. This itself shows that the attempt on the
part of the authorities concerned should be to permit such public gathering by allotting
them alternative site and not to cancel such meetings. This, however, does not seem
to further the case of the State at all inasmuch as, admittedly, when the order was
passed and the Police came to the Ramlila Maidan to serve the said order, not even
15,000 to 20,000 people were stated to be present in the shamiana/tent. In these

circumstances, it appears to me that it was not necessary for the executive authorities
and the Police to pass orders under Section 144 Code of Criminal Procedure. and
withdraw the permissions. The matter could be resolved by mutual deliberation and
intervention by the appropriate authorities.
180. In view of the affidavits having been filed on behalf of Respondent No. 3, a
person of the rank of Commissioner of Police, Delhi, wherein he has owned the
responsibility for the events that have occurred from 1st June, 2011 to 4th/5th June,
2011, there is no reason for this Court to attribute any motive to the said officer that
he had worked and carried out the will of the people in power.
181. At the very commencement of hearing of the case, I had made it clear to the
learned Counsel appearing for the parties that the scope of the present petition is a
very limited one. This Court would only examine the circumstances that led to the
unfortunate incident on 4th June, 2011, its consequences as well as the directions that
this Court is called upon to pass in the peculiar facts and circumstances of the case.
Therefore, it is not necessary for this Court to examine certain contentions raised or
sought to be raised by the parties as the same may more appropriately be raised in an
independent challenge to such orders or claim such other reliefs as they may like to
claim by initiating appropriate legal proceedings.
182. This takes me to an ancillary but pertinent question in context of the said
'discretion', that is exercisable with regard to the 'threat perception', for the purposes
of passing an order under Section 144 of the Code of Criminal Procedure. The activities
which, though unintended have a tendency to create disorder or disturbance of public
peace by resorting to violence, should invite the appropriate authority to pass orders
taking preventive measures. The intent or the expected threat should be imminent.
Some element of certainty, therefore, should be traceable in the material facts
recorded and the necessity for taking such preventive measures. There has to be an
objective application of mind to ensure that the constitutional rights are not defeated
by subjective and arbitrary exercise of power. Threat perception is one of the most
relevant considerations and may differ as per the perspective of different parties. In
the facts of the present case, the Police have its own threat perception while the Trust
has its own point of view in that behalf. As already noticed, according to the Police,
Baba Ramev wanted to do Anshan, after the negotiations with the Government had
failed, which was not the purpose for which the permission had been granted. There
was a possibility of the number of persons swelling upto 50,000 or more. There could
also be possibility of communal tension as well as a threat to Baba Ramdev's life.
These apprehensions are sought to be dispelled by learned Amicus curiae stating that
this protest/dharna/anshan is a right covered under the freedom of speech. The
Ramlila Maidan has the capacity of 50,000, which number, admittedly, was never
reached and the doubts in the minds of the authority were merely speculative. The
security measures had been baffed up. Baba Ramdev had been given Z+ security and,
therefore, all the apprehensions of the authorities were misplaced, much less that they
were real threats to an individual or to the public at large. The perception of the Trust
was that they were carrying on their anshan and yoga shivir peacefully, as law abiding
citizens of the country. No complaint had ever been received of any disturbance or

breach of public trust. The events, right from January 2011, showed that all the camps
and protests organized by the Trust, under the leadership of Baba Ramdev had been
completed peacefully, without any damage to person or property and without any
disturbance to anyone. The action of the Police in revoking the permissions as well as
that of the executive authorities in passing the order under Section 144 Code of
Criminal Procedure. was a colourable exercise of power and was not called for in the
facts and circumstances of the case. 183. It is also not understandable that if the
general 'threat perception' and likelihood of communal disharmony were the grounds
for revoking the permission and passing the order under Section 144 Code of Criminal
Procedure., then why the order passed under Section 144 Code of Criminal Procedure.
permitted all other rallies, processions which had obtained the Police permission to go
on in the area of the same Police Division. The decision, therefore, appears to be
contradictory in terms.
184. There is some merit in the submissions of learned Amicus curiae. Existence of
sufficient ground is the sine qua non for invoking the power vested in the executive
under Section 144 Code of Criminal Procedure. It is a very onerous duty that is cast
upon the empowered officer by the legislature. The perception of threat should be real
and not imaginary or a mere likely possibility. The test laid down in this Section is not
that of 'merely likelihood or tendency'. The legislature, in its wisdom, has empowered
an officer of the executive to discharge this duty with great caution, as the power
extends to placing a restriction and in certain situations, even a prohibition, on the
exercise of the fundamental right to freedom of speech and expression. Thus, in case
of a mere apprehension, without any material facts to indicate that the apprehension
is imminent and genuine, it may not be proper for the authorities to place such a
restriction upon the rights of the citizen. At the cost of repetition, I may notice that all
the grounds stated were considered at various levels of the Government and the Police
and they had considered it appropriate not to withdraw the permissions or impose the
restriction of Section 144 Code of Criminal Procedure. even till 3rd June, 2011. Thus, it
was expected of the authorities to show before the Court that some very material
information, fact or event had occurred between 3rd and 4th June, 2011, which could
be described as the determinative factor for the authorities to change their mind and
pass these orders. I am unable to accept the contention of the Police that a situation
had arisen in which there was imminent need to intervene instantly having regard to
the sensitivity and perniciously perilous consequences that may result, if not
prevented forthwith.
185. The administration, upon taking into consideration the intelligence inputs, threat
perception, likelihood of disturbance to public order and other relevant considerations,
had not only prepared its planned course of action but also declared the same. In
furtherance thereto, the Police also issued directions for compliance to the organizers.
The authorities, thus, had full opportunity to exercise their power to make a choice
permitting continuation and/or cancellation of the programme and thereby prohibit the
activity on the Ramlila Maidan. However, in their wisdom, they opted to permit the
continuation of the agitation and holding of the yoga shivir, thereby impliedly
permitting the same, even in the changed circumstances, as alleged. Quinon prohibit

qua prohibere protest asentire videthir (He who does not prohibit when he is able to
prohibit assents to it).
186. The authorities are expected to seriously cogitate over the matter in its entirety
keeping the common welfare in mind. In my view, the Police have not placed on record
any document or even affidavits to show such sudden change of circumstances,
compelling the authorities to take the action that they took. Denial of a right to hold
such meeting has to be under exceptional circumstances and strictly with the object of
preventing public tranquility and public order from being disturbed. Reasonable notice
is a requirement of Section 144 Code of Criminal Procedure.
187. The language of Section 144 Code of Criminal Procedure. does not contemplate
grant of any time for implementation of the directions relating to the prevention or
prohibition of certain acts for which the order is passed against the person(s). It is a
settled rule of law that wherever provision of a statute does not provide for a specific
time, the same has to be done within a reasonable time. Again reasonable time cannot
have a fixed connotation. It must depend upon the facts and circumstances of a given
case. There may also be cases where the order passed by an Executive Magistrate
under Section 144 Code of Criminal Procedure. requires to be executed forthwith, as
delay in its execution may frustrate the very purpose of such an order and may cause
disastrous results like rioting, disturbance of public order and public tranquility, while
there may be other cases where it is possible, on the principles of common prudence,
that some time could be granted for enforcement and complete implementation of the
order passed by the Executive Authority under Section 144 Code of Criminal
Procedure. If one reads the entire provision of Section 144 Code of Criminal
Procedure., then the legislature itself has drawn a distinction between cases of
urgency, where the circumstances do not admit to serving of a notice in due time upon
the person against whom such an order is directed and the cases where the order
could be passed after giving a notice to the affected party. Thus, it is not possible to
lay down any straight jacket formula or an absolute proposition of law with exactitude
that shall be applicable uniformly to all the cases/situations. In fact, it may not be
judicially proper to state such a proposition. It must be left to the discretion of the
executive authority, vested with such powers to examine each case on its own merits.
188. Needless to repeat that an order under Section 144 Code of Criminal Procedure.
affects the right vested in a person and it will not be unreasonable to expect the
authorities to grant adequate time to implement such orders, wherever the
circumstances so permit. Enforcement of the order in undue haste may sometimes
cause a greater damage than the good that it expected to achieve.
189. If for the sake of arguments, I would accept the contention of the Police that the
order withdrawing the permission as well as the order under Section 144Code of
Criminal Procedure. are valid and had been passed for good reasons, still the question
remains as to whether the authorities could have given some reasonable time for
implementation/enforcement of the directions contained in the order dated 4th June,
2011. It is undisputable and, in fact, is disputed by none that all the persons who had
gathered in the tent at the Ramlila Maidan were sleeping when the Police went there to

serve the order passed under Section 144Code of Criminal Procedure. upon the
representatives of the Trust; the order itself having been passed at 11.30 p.m. on 4th
June, 2011. There are serious disputes raised as to the manner in which the order was
sought to be executed by the Police. According to Respondent No. 4 and the learned
amicus, it was not executed as per the legal framework provided under the Police
Rules and the guidelines issued, whereas according to the Police, it adhered to its
prescribed procedure. This issue I shall discuss separately. But at this stage, I may
notice that nothing prevented the authorities from making proper announcements
peacefully requiring the persons gathered at the Ramlila Maidan to leave for their
respective homes early in the morning and before the yoga camp could resume.
Simultaneously, they could also have prohibited entry into the Ramlila Maidan, as the
same was being controlled by the Police itself. No facts or circumstances have been
stated which could explain as to why it was absolutely necessary for the Police to wake
up the people from their sleep and force their eviction, in a manner in which it has
been done at the late hours of night. In absence of any explanation and special
circumstances placed on record, I have no hesitation in coming to the conclusion that,
in the facts of the present case, it was quite possible and even desirable for the
authorities concerned to grant a reasonable time for eviction from the ground and
enforcement of the orders passed under Section 144 Code of Criminal Procedure.
Except in cases of emergency or the situation unexceptionally demanding so,
reasonable notice/time for execution of the order or compliance of the directions
issued in the order itself or in furtherance thereto is the pre-requisite.
190. Non-grant of reasonable time and undue haste on the part of the Police
authorities to enforce the orders under Section 144Code of Criminal Procedure.
instantaneously had resulted in the unfortunate incident of human irony which could
have been avoided with little more patience and control. It was expected of the Police
authorities to bastion the rights of the citizens of the country. However, undue haste
on the part of the Police created angst and disarray amongst the gathering at the
Ramlila Maidan, which finally resulted in this sad cataclysm. Requirement of Police
permission and its effect on the right conferred in terms of Articles 19(1)(a) and 19(1)
(b) respectively with reference to the facts of the present case
191. The contention on behalf of Respondent No. 4 is that no law requires permission
of the Police to go on fast and/or for the purposes of holding an agitation or yoga
camp. The Police, therefore, had no power to cancel such permission. The law is clear
that it is the fundamental right of the people to hold such agitation or morchas in the
streets and on public land and the Police have been vested with no power to place any
restriction, much less an unreasonable restriction, upon the exercise of such right.
There is no statutory form provided for seeking permission of the Police before holding
any such public meeting. While relying on the Constitution Bench judgment of this
Court in the case of Himat Lal (supra), the contention is that the Police cannot be
vested with unrestricted and unlimited power for grant or refusal of permission for
holding such public functions. In fact, it is stated to be no requirement of law. In the
alternative, the contention is that there was no condition imposed by the Police for
grant of permission, which had been violated. Thus, there was no occasion or
justification, not even a reasonable apprehension, for revoking that permission. The

imposition of restriction must be preceded by some act or threatening behavior which

would disturb the public order or public tranquility.
192. The Ramlila Maidan belongs to MCD and they granted the permission/licence to
use the said property from 1st June, 2011 to 20th June, 2011. They having granted
the permission/license to use the said property, never revoked the same. Thus, the
Police had no jurisdiction to indirectly revoke the permission which they could not
directly revoke and evict the persons from Ramlila Maidan forcibly, by brutal assaults
and causing damage to the person and property of the individuals. The permission had
been revoked in violation of the principles of natural justice. The submission was
sought to be buttressed by referring to Rule 10 of the MCD Rules which requires grant
of personal hearing before revocation of a permission granted by the MCD.
193. To contra, the contention raised on behalf of Respondent No. 3, the
Commissioner of Police, Delhi, is that there are specific powers vested in the Police in
terms of the DP Act, the Punjab Police Rules, as applicable to Delhi and the Standing
Orders, according to which the Police is obliged to maintain public order and public
tranquility. They are expected to keep a watch on public meetings. There is no act
attributable to the Police which has impinged upon any democratic rights of the said
Respondents or the public. The orders passed and the action taken by the Police,
including withdrawal of permission, was in public interest as weighed against private
interest. Since the Police, as an important organ of the State Administration, is
responsible to maintain public order and peace, it will be obligatory upon the persons
desirous of holding such public meetings as well as the concerned authorities to
associate Police and seek their permission for holding such public satyagraha, camp
etc. as safety of a large number of people may be at stake. According to learned
Amicus curiae, the withdrawal of permission was for political and mala fide reasons.
There existed no circumstances which could justify the withdrawal of permission. In
fact, the contention is that possibility of Government and Police working in liaison to
prevent Baba Ramdev from holding Satyagrah/Anshan cannot be ruled out particularly,
when there was no threat, much less an imminent threat, to disturb public order or
tranquility justifying the withdrawal of permission.
194. I have already discussed that the term 'social order' has a very wide ambit which
includes 'law and order', 'public order' as well as 'security of the State'. In other words,
'social order' is an expression of wide amplitude. It has a direct nexus to the Preamble
of the Constitution which secures justice - social, economic and political - to the people
of India. An activity which could affect 'law and order' may not necessarily affect public
order and an activity which might be prejudicial to public order, may not necessarily
affect the security of the State. Absence of public order is an aggravated form of
disturbance of public peace which affects the general course of public life, as any act
which merely affects the security of others may not constitute a breach of public order.
The 'security of the State', 'law and order' and 'public order' are not expressions of
common meaning and connotation. To maintain and preserve public peace, public
safety and the public order is unequivocal duty of the State and its organs. To ensure
social security to the citizens of India is not merely a legal duty of the State but a

constitutional mandate also. There can be no social order or proper state governance
without the State performing this function and duty in all its spheres.
195. Even for ensuring the exercise of the right to freedom of speech and assembly,
the State would be duty bound to ensure exercise of such rights by the persons
desirous of exercising such rights as well as to ensure the protection and security of
the people i.e. members of the assembly as well as that of the public at large. This triduty has to be discharged by the State as a requirement of law for which it has to be
allowed to apply the principle of reasonable restriction, which is constitutionally
permissible.
196. Articles 19(1)(a) and 19(1)(b) are subject to the reasonable restrictions which
may be imposed on exercise of such right and which are in the interest of sovereignty
and integrity of India, security of the State, public order, decency or morality and
friendly relations with foreign states. Besides this, such restriction could also relate to
contempt of court, defamation or incitement to an offence. Thus, sphere of such
restrictions is very wide. While some may be exercising their fundamental rights under
Articles 19(1)(a) and 19(1)(b) of the Constitution, others may be entitled to the
protection of social safety and security in terms of Article 21 of the Constitution and
the State may be called upon to perform these functions in the discharge of its duties
under the constitutional mandate and the requirements of Directive Principles of State
Policy.
197. I have also noticed that in terms of Article 51A of the Constitution, it is the
constitutional duty of every citizen to perform the duties as stated under that Article.
198. The security of India is the prime concern of the Union of India. 'Public order' or
'law and order' falls in the domain of the State. Union also has the power to enact laws
of preventive detention for reasons connected with the security of the State,
maintenance of the public order, etc. I am not entering upon the field of legislative
competence but am only indicating Entries in the respective Lists to show that these
aspects are the primary concern, either of the Union or the State Governments, as the
case may be and they hold jurisdiction to enact laws in that regard. The Union or the
State is expected to exercise its legislative power in aid of civil power, with regard to
the security of the State and/or public order, as the case may be, with reference to
Entry 9 of List I, Entry 1 of List II and Entries 3 and 4 of List III of the Seventh
Schedule of the Constitution of India.
199. These are primarily the fields of legislation, but once they are read with the
constitutional duties of the State under Directive Principles with reference to
Article 38 where the State is to secure a social order for promotion of welfare of the
people, the clear result is that the State is not only expected but is mandatorily
required to maintain social order and due protection of fundamental rights in the
State.
200. Freedom of speech, right to assemble and demonstrate by holding dharnas and
peaceful agitations are the basic features of a democratic system. The people of a

democratic country like ours have a right to raise their voice against the decisions and
actions of the Government or even to express their resentment over the actions of the
Government on any subject of social or national importance. The Government has to
respect and, in fact, encourage exercise of such rights. It is the abundant duty of the
State to aid the exercise of the right to freedom of speech as understood in its
comprehensive sense and not to throttle or frustrate exercise of such rights by
exercising its executive or legislative powers and passing orders or taking action in
that direction in the name of reasonable restrictions. The preventive steps should be
founded on actual and prominent threat endangering public order and tranquility, as it
may disturb the social order. This delegate power vested in the State has to be
exercised with great caution and free from arbitrariness. It must serve the ends of the
constitutional rights rather than to subvert them.
201. The 'law and order' or 'public order' are primarily and certainly the concerns of
the State. Police, being one of the most important organs of the State, is largely
responsible for ensuring maintenance of public security and social order. To urge that
the Police have no concern with the holding of public meetings would be a misnomer
and misunderstanding of law. To discharge its duty, the Police organization of a State
is a significant player within the framework of law. In this view of the matter, I may
now refer to certain statutory provisions under the relevant Acts or the Rules. Chapter
V of the DP Act requires special measures for maintenance of public order and security
of State, to be taken by the Police. Sections 28 and 29 of the DP Act give power to the
Police to make Regulations for regulating traffic and for preservation of order in public
places and to give directions to the public, respectively. Under Section 31 of the DP
Act, the Police is under a duty to prevent disorder at places of public amusement or
public assembly or meetings. Section 36 contemplates that the Police is to ensure and
reserve streets or other public places for public purposes and empowers it to authorize
erecting of barriers in streets. It also is vested with the power to make Regulations
regulating the conduct or behaviour of persons constituting assemblies or processions
on or along with the streets and specifying, in the case of processions, the rules by
which and the time and order in which the same may pass.
202. The power to make Regulations relates to regulating various activities including
holding of melas and public amusements, in the interest of public order, the general
public or morality. Delhi Police has also issued a Standing Order 309 in relation to
'Regulation of processions and rallies' laying down the procedure for making
application for grant of permission, its acceptance or rejection and the consequences
thereof. This Standing Order also provides as to how the proceedings in furtherance to
an order passed under Section 144 Code of Criminal Procedure. should be carried out.
It further indicates that the entire tilt of the Regulation is to grant permission for
holding processions or rallies and they need to be accommodated at the appropriate
places depending upon the number of persons proposing to attend the said rally or
meeting and the nature of the activity that they are expected to carry on. For
instance, under clause (h), as the Parliament Street and Jantar Mantar cannot
accommodate more than 5000 persons, if there is a larger crowd, they should be
shifted to the Ramlila Ground and if the crowd is expected to be more than 50,000 and

the number of vehicles would accordingly swell up, then it should be shifted to a park
or another premises, which can safely accommodate the gathering.
203. The learned Solicitor General appearing for the Union of India argued that the
Ministry of Home Affairs had never told the Police to take any action. The Police only
kept the senior officers in the Ministry of Home Affairs informed. What transpired at
the site is correctly stated by the Police in its affidavit and the extent of judicial review
of such action/order is a very narrow one. According to him, the scope of the suo moto
petition itself is a very limited one, as is evident from the order of the Court dated 6th
June, 2011. The statement of the Home Minister relied upon by Respondent No. 2 as
well as referred to by the learned Amicus in his submissions has to be read in
conjunction with the explanation given by the Minister of Home Affairs soon after the
incident. Thus, no fault or error is attributable to the Ministry of Home Affairs,
Government of India in relying upon the judgment of this Court in Babulal
Parate (supra), Madhu Limaye(supra), Amitabh Bachchan Corpn. Ltd. v. Mahila
Jagran Manch and Ors. : (1997) 7 SCC 91, R.K. Garg v. Superintendent,
District Jail, Saharanpur and Ors. : (1970) 3 SCC 227 and Dr. Praveen Bhai
Thogadia (supra) to contend that the authorities have to be given some leverage to
take decisions in such situations. There are sufficient inbuilt safeguards and that the
judicial intervention in such executive orders has to be very limited. It is his contention
that the present case does not fall in that category.
204. There cannot be any dispute that the executive authorities have to be given some
leverage while taking such decisions and the scope of judicial review of such orders is
very limited. These propositions of law are to be understood and applied with
reference to the facts of a given case. It is not necessary for me to reiterate those
facts. Suffice it to note that the action of the Police was arbitrary. The Seven Judges
Bench of this Court in Madhu Limaye (supra) reiterated with approval the law
enunciated in Babulal Parate (supra) and further held that "These fundamental facts
emerge from the way the occasions for the exercise of the power are mentioned.
Disturbances of public tranquility, riots and affray lead to subversion of public order
unless they are prevented in time. Nuisances dangerous to human life, health or safety
have no doubt to be abated and prevented.... " The fundamental emphasis is on
prevention of situation which would lead to disturbance of public tranquility, however,
action proposed to be taken should be one which itself is not likely to generate public
disorder and disturb the public tranquility. It should be preventive and not provocative.
The Police action in the present case led to a terror in the minds of members of the
assembly and finally the untoward incident.
205. It is also true that a man on the spot and responsible for maintenance of public
peace is the appropriate person to form an opinion as contemplated in law. But, here
the onus was on the Police Authorities to show existence of such circumstances at the
spot when, admittedly, all persons were sleeping peacefully. The courts have to realize
that the rights of the organizers and other members of the Society had to be protected
if a law and order situation was created as a result of a given situation.

206. The learned Solicitor General is correct in his submissions that the scope of the
present suo moto petition is a limited one. But certainly it is not so limited that the
Court would neither examine facts nor the law applicable but would accept the
government affidavits as a gospel truth. The order dated 6th June, 2011 has two
distinct requirements. Firstly, relating to the take of the police authorities. Secondly,
circumstances in which such power with brutality and atrocities was asserted against
large people who had gathered at the Ramlila ground.
207. While keeping the principles of law in mind, the Court essentially has to
deliberate upon these two aspects. I am examining the circumstances which generated
or resulted into the unfortunate situation at the Ramlila Ground on the midnight of
4th/5th June, 2011. The statement made by the Home Minister on 8th June, 2011 has
already been referred by me above. This statement clearly demonstrated the stand of
the Government that in the event Baba Ramdev persisted in his efforts to go on with
the fast, he would be removed. The Police had been issued appropriate directions
under Section 65 of the DP Act to enforce the same. The decision so had also been
taken by the Delhi Police. The Minister had requested the general public to appreciate
the constraints and difficult circumstances under which the Delhi Police had to
discharge its functions. This statement was even clarified with more reasons and
elaborately in the exclusive interview of the Minister with DD News on the same date
on the television. He is stated to have said that ultimately when the talks failed or
Baba Ramdev went back on his words, the Police was told to enforce the decision.
208. There are circumstances and reasons given by the Home Minister in his
statement for making the statement that he made. The decision of the Delhi Police in
the normal course of events would have a connection with the declaration made by the
Ministry. Police might have acted independently or in consultation with the Ministry.
Either way, there is no material before me to hold that the decision of the Ministry or
the Police was mala fide in law or in fact. Upon taking into consideration the
cumulative effect of the affidavits filed on record and other documentary evidence, I
am unable to dispel the argument that the decision of Ministry of Home Affairs, Union
of India reflected its shadow on the decision making process and decision of the Police
authorities.
209. I shall make it clear even at the cost of repetition that neither am I adjudicating
upon the validity of the order passed by the Government qua Respondent No. 4, nor
adjudicating any disputes between Baba Ramdev, on the one hand, and the
Government, on the other. Within the scope of this Court's order dated 6th June,
2011, I would examine all the relevant facts and the principles of law applicable for
returning the findings in relation to the interest of the large public present at the
Ramlila Maidan in the midnight of 4th/5th June, 2011.
210. The learned Amicus also contended that the doctrine of limited judicial review
would not stricto sensu apply to the present case. The case is not limited to the
passing of an order under Section 144, Code of Criminal Procedure, but involves the
larger issue of fundamental freedom and restrictions in terms of Article19(1)(a) of the
Constitution, as well as the interest of number of injured persons and Rajbala, the

deceased. It is also his contention that there is a clear abdication of powers by the
Police to the Ministry of Home Affairs. The order and action of the Police are patently
unjustifiable. If the trajectories of two views, one of the Ministry and other of the
Police point out towards the action being mala fide, be it so, the Court then should
decide the action to be mala fide. Mala fides is a finding which the Court can return
only upon proper allegations supported by documentary or other evidence. It is true
that if the factual matrix of the case makes the two trajectories (case of both the
Respondents) point towards an incorrect decision, the Court would be reluctant to
return a finding of mala fides or abdication of power. The decision was taken by the
competent authority and on the basis of inputs and the situation existing at the site. It
may be an incorrect decision taken in somewhat arbitrary manner and its enforcement
may be totally contrary to the rule of law and common sense. In such an event, the
action may be liable to be interfered with but cannot be termed as mala fide.
211. Furthermore, the constitutional mandate, the statutory provisions and the
Regulations made thereunder, in exercise of power of delegated legislation, cast a dual
duty upon the State. It must ensure public order and public tranquility with due regard
to social order, on the one hand, while on the other, it must exercise the authority
vested in it to facilitate the exercise of fundamental freedoms available to the citizens
of India. A right can be regulated for the purposes stated in that Article itself.
212. In Himat Lal K. Shah (supra), this Court observed that even in pre-independence
days the public meetings have been held in open spaces and public streets and the
people have come to regard it as a part of their privileges and amenities. The streets
and public parks existed primarily for other purposes and the social interest promoted
by untrammelled exercise of freedom of utterance and assembly in public streets must
yield to the social interest which the prohibition and Regulation of speech are designed
to protect. There is a constitutional difference between reasonable Regulation and
arbitrary exclusion. The power of the appropriate authority to impose reasonable
Regulation, in order to ensure the safety and convenience of the people in the use of
public highways, has never been regarded as inconsistent with the fundamental right
to assembly. A system of licensing as regards the time and manner of holding public
meeting on public streets has not been regarded as an infringement of a fundamental
right of public assembly or free speech. This Court, while declaring Rule 7 of the
Bombay Police Rules ultra vires, stated the principle that it gave an unguided
discretion, practically dependent upon the subjective whims of the authority, to grant
or refuse permission to hold public meeting on a public street. Unguided and
unfettered power is alien to proper legislation and even good governance. The
principles of healthy democracy will not permit such restriction on the exercise of a
fundamental right.
213. The contention made by Mr. Ram Jethmalani, learned Senior Advocate, is that
this judgment should be construed to mean that it is not obligatory or even a directory
requirement to take permission of the Police authorities for holding such public
meetings at public places. According to him the Police have no such power in law. I am
not quite impressed by this submission. This argument, if accepted, can lead to drastic
and impracticable consequences. If the Department of Police will have no say in such

matters, then it will not only be difficult but may also be improbable for the Police to
maintain law and order and public tranquility, safeguarding the interest of the
organizers, the persons participating in such public meetings as well as that of the
public at large.
214. I am bound and, in fact, I would follow the view expressed by a Constitution
Bench of this Court in the case of Himat Lal (supra) in paragraph 31 of the judgment:
It seems to us that it follows from the above discussion that in India a citizen had, before
the Constitution, a right to hold meetings on public streets subject to the control of the
appropriate authority regarding the time and place of the meeting and subject to
considerations of public order. Therefore, we are unable to hold that the impugned rules
are ultra vires Section 33(1) of the Bombay Police Act insofar as they require prior
permission for holding meetings.
215. The provisions of DP Act read in conjunction with the Regulations framed and the
Standing Orders issued, do provide sufficient guidelines for exercise of power by the
appropriate authority in granting and/or refusing the permission sought for. I hasten to
add here itself that an application to the Police has to be examined with greatest
regard and objectivity in order to ensure exercise of a fundamental right rather than it
being throttled or frustrated by non-granting of such permission.
216. A three-Judge Bench of this Court in the case of Destruction of Public and Private
Properties, In Re (supra) primarily laid down the guidelines to effectuate the
modalities for preventive action and adding teeth to the enquiry/investigation in cases
of damage to public and private properties resulting from public rioting. The Court
indicated the need for participation and for taking the Police into the organizational
activity for such purposes. The Court, while following the principles stated in the case
of Union of India v. Association of Democratic Reforms : (2002) 3 SCC 696,
gave directions and guidelines, wherever the Act or the Rules were silent on a
particular subject, for the proper enforcement of the provisions. In paragraph 12 of
the judgment, the Court clearly stated that as soon as there is a demonstration
organized, the organizers shall meet the Police to review and revise the route to be
taken and lay down the conditions for peaceful march and protest.
217. Admittedly, the Court in that case was not determining an issue whether Police
permission is a pre-requisite for holding such public meetings or not, but still, the
Court mandated that the view of the Police is a requirement for organization of such
meetings or for taking out public processions. Seeking of such permission can be
justified on the basis that the said right is subject to reasonable restrictions.
218. Further, exercise of such rights cannot be claimed at the cost of impinging upon
the rights of others. This is how the restriction imposed is to be regulated. Restriction
to a right has to come by enactment of law and enforcement of such restriction has to
come by a regulatory mechanism, which obviously would take within its ambit the role
of Police. The Police have to perform their functions in the administration of criminal
justice system in accordance with the provisions of the Code of Criminal Procedure.

and the other penal statutes. It has also to ensure that it takes appropriate preventive
steps as well as maintains public order or law and order, as the case may be. In the
event of any untoward incident resulting into injury to a person or property of an
individual or violation of his rights, it is the Police alone that shall be held answerable
and responsible for the consequences as may follow in law. The Police is to maintain
and give precedence to the safety of the people as salus populi supremo lex (the
safety of the people is the supreme law) and salus republicae supremo lex (safety of
the State is the supreme law) coexist and are not only important and relevant but lie
at the heart of the doctrine that the welfare of an individual must yield to that of the
community. Besides, one fact that cannot be ignored is that Respondent No. 4, in
furtherance to the understanding of law, had itself applied to the Deputy
Commissioner of Police, Central District, Darya Ganj, seeking sanction for holding of
yoga shivir at the Ramlila Maidan.
219. It is difficult for the Court to even imagine a situation where the Police would be
called upon to discharge such heavy responsibility without having any say in the
matter. The persons who are organizing the public meeting would obviously have their
purpose and agenda in mind but the Police also have to ensure that they are able to
exercise their right to freedom of speech and assembly and, at the same time, there is
no obstruction, injury or danger to the public at large.
220. Thus, in my considered opinion, associating Police as a pre- requirement to hold
such meetings, dharnas and protests, on such large scale, would not infringe the
fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution
as this would squarely fall within the regulatory mechanism of reasonable restrictions,
contemplated under Articles 19(2) and 19(3). Furthermore, it would help in ensuring
due social order and would also not impinge upon the rights of the others, as
contemplated under Article 21 of the Constitution of India. That would be the correct
approach of law, as is supported by various judgments and reasoning, that I have
detailed in the initial part of this judgment.
221. A solution to such an issue has to be provided with reference to exercise of a
right, imposition of reasonable restrictions, without disturbing the social order,
respecting the rights of others with due recognition of the constitutional duties that all
citizens are expected to discharge.
222. Coming to the facts of the present case, it is nobody's case that the permissions
were declined. The permissions, whether for holding of the yoga shivir at the Ramlila
Maidan or the protest at Jantar Mantar, were granted subject to certain terms and
conditions. The argument that no permission of the Police is called for in absolute
terms, as a pre-requirement for holding of such meetings, needs no further
deliberation. Responsibility of the Trust, Members of the Assembly, their status and
duty.
223. Once an order under Section 144 Code of Criminal Procedure. is passed by the
competent authority and such order directs certain acts to be done or abstains from
doing certain acts and such order is in force, any assembly, which initially might have

been a lawful assembly, would become an unlawful assembly and the people so
assembled would be required to disperse in furtherance to such order. A person can
not only be held responsible for his own act, but, in light of Section149 Indian Penal
Code, if the offence is committed by any member of the unlawful assembly in
prosecution of a common object of that assembly, every member of such assembly
would become member of the unlawful assembly.
224. Obedience of lawful orders is the duty of every citizen. Every action is to follow its
prescribed course in law Actio quaelibet it sua via. The course prescribed in law has to
culminate to its final stage in accordance with law. In that process there might be
either a clear disobedience or a contributory disobedience. In either way, it may
tantamount to being negligent. Thus, the principle of contributory negligence can be
applied against parties to an action or even a non- party. The rule of identification
would be applied in cases where a situation of the present kind arises. Before this
Court, it is the stand of the Police authorities that Baba Ramdev, members of the Trust
and their followers refused to obey the order and, in fact, they created a situation
which resulted in inflictment of injuries not only to the members of the public, but
even to Police personnel. In fact, they placed the entire burden upon Respondent No.
4.
225. The members of the public as well as Respondent No. 4 claimed that there was
damage to their person and property as a result of the action of the Police. Thus, this
Court will have to see the fault of the party and the effective cause of the ensuing
injury. Also it has to be seen that in the 'agony of the moment', would the situation
have been different and safe, had the people concerned acted differently and as to
who was majorly responsible for creation of such a dilemma. Under the English law, it
has been accepted that once a statute has enjoined a pattern of behavior as a duty, no
individual can absolve another from having to obey it. Thus, as a matter of public
policy, volenti cannot erase the duty or breach of it (Ref. Clerk & Lindsell on Torts,
Twentieth Edition, pg. 246).
226. There is no statutory definition of contributory negligence. The concerns of
contributory negligence are now too firmly established to be disregarded, but it has to
be understood and applied properly. 'Negligence' materially contributes to injury or is
regarded as expressing something which is a direct cause of the accident.
227. The difference in the meaning of "negligence," when applied to a claimant, on the
one hand, and to a Defendant on the other, was pointed out by Lord Simon
in Nance v. British Columbia Electric Ry. (1951) A.C. 601 at 611:
When contributory negligence is set up as a defence, its existence does not depend on
any duty owed by the injured party to the party sued, and all that is necessary to
establish such a defence is to prove... that the injured party did not in his own interest
take reasonable care of himself and contributed, by his want of care, to his own injury.
For when contributory negligence is set up as a shield against the obligation to satisfy
the whole of the claimant's claim, the principle involved is that, where a man is part
author of his own injury, he cannot call on the other party to compensate him in full

228. The individual guilty of contributory negligence may be the employee or agent of
the claimant, so as to render the claimant vicariously responsible for what he did.
There could be cases of negligence between spectators and participants in sporting
activities. However, in such matters, negligence itself has to be established. In cases of
'contributory negligence', it may not always be necessary to show that the claimant is
in breach of some duty, but the duty to act carefully, usually arises and the liability in
an action could arise (Ref. Charlesworth & Percy on Negligence, Eleventh Edition,
Pages 195, 206). These are some of the principles relating to the award of
compensation in cases of contributory negligence and in determining the liability and
identifying the defaulter. Even if these principles are not applicable stricto sensu to the
cases of the present kind, the applied principles of contributory negligence akin to
these principles can be applied more effectively on the strength of the provisions of
Section 149 Indian Penal Code.
229. A negligence could be composite or contributory. 'Negligence' does not always
mean absolute carelessness, but want of such a degree of care as is required in
particular circumstances. 'Negligence' is failure to observe, for the protection of the
interests of another person, the degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury. Normally, the
crucial question on which such a liability depends would be whether either party could,
by exercise of reasonable care, have avoided the consequence of other's negligence.
Though, this is the principle stated by this Court in a case relating to Motor Vehicles
Act, in the case of Municipal Corporation of Greater Bombay v. Shri Laxman
Iyer and Anr. : AIR 2003 SC 4182, it is stated that the principle stated therein would
be applicable to a large extent to the cases involving the principles of contributory
negligence as well. This Court in the case of Municipal Corporation of Delhi,
Delhi v. Association of Victims of Uphaar Tragedy and Ors. (C.A. Nos. 71147115 of 2003 : C.A. No. 7116 of 2003 : C.A. No. 6748 of 2004, pronounced on 13th
October, 2011) while considering awarding of compensation to the victims who died as
a result of Uphaar tragedy and the liability of the persons responsible, held that even
on the principle of contributory negligence the DVB to whom negligence was
attributable in relation to installing a transformer was liable to pay damages along with
licensee. Whenever an order is passed which remains unchallenged before the Court of
competent jurisdiction, then its execution is the obvious consequence in law. For its
execution, all concerned are expected to permit implementation of such orders and, in
fact, are under a legal obligation to fully cooperate in enforcement of lawful orders.
Article 19(1)(a)gives the freedom of speech and expression and the right to assembly.
Article 21 mandates that no person shall be deprived of his life and personal liberty
except according to the procedure established by law. However, Article 51A imposes
certain fundamental duties on the citizens of India. Article 38(1) provides that the
State shall strive to promote the welfare of the people by securing and protecting, as
effectively as it may, a social order in which justice - social, economic and political shall inform all the institutions of national life.
230. Article 51A requires the citizens of India to abide by the Constitution and to
uphold the sovereignty and integrity of India. Article 51A(i) requires a citizen to
safeguard public property and to abjure violence. An order passed under

Section 144 Code of Criminal Procedure. is a restriction on enjoyment of fundamental

rights. It has been held to be a reasonable restriction. Once an order is passed under
Section 144 Code of Criminal Procedure. within the framework and in accordance with
the requirements of the said Section, then it is a valid order which has to be respected
by all concerned. Its enforcement is the natural consequence. In the present case, the
order was passed under Section 144 Code of Criminal Procedure. at about 11.30 p.m.
whereafter the Police had come to Ramlila Maidan to serve the said order on the
representatives of Respondent No. 4. The video and the footage of CCTV cameras
played before this Court show that the officers of the Police along with the limited
force had come to inform Baba Ramdev and/or the representatives of Respondent No.
4 about the passing of the said order, but they did not receive the requisite
cooperation from that end. On the contrary, it is clear from the various documents
before this Court that Baba Ramdev did not receive the order though obviously he had
come to know about the said order. At the time of the incident, Baba Ramdev was
sleeping in the rest room. Thereafter he came to the stage and when approached by
the Police officers, who were also present on the stage, he jumped into the crowd, got
onto the shoulders of one of his followers and delivered speeches. of course, there
does not appear to be use of any language which was, in any way, provocative or was
a command to his followers to get involved in clash with the Police. On the contrary, in
his speeches, he asked the people to chant the Gayatri Mantra, maintain Shanti and
not to take any confrontation with the Police. He exhorted that he would not advise the
path of hinsa, but at the same time, he also stated about failure of his talks with the
Government and the attitude of the Government on the issues that he had raised and
also stated that 'Babaji will go only if people wanted and the God desires it."
231. After some time, Baba Ramdev climbed onto the stage and thereafter,
disappeared. In the CCTV cameras, Baba Ramdev is not seen thereafter. He did not
disclose to his followers that he was leaving and what path they should follow. This
suspense and commotion on the stage added fuel to the fire. Thereafter, the scenes of
violent protest and clash between the Police and the followers occurred at the site.
232. The legality and correctness of the order passed under Section 144 Code of
Criminal Procedure. was not challenged by Respondent No. 4 and, in fact, it remains
unchallenged till date. of course, the attempt on the part of the authorities to enforce
the order forthwith, practically frustrated the right available to Respondent No. 4 under
law i.e. preferring of an appeal or a revision under the provisions of Code of Criminal
Procedure.
233. Be that as it may, the fact that when an order was passed by the authorities
competent to pass such an order, it was expected of all concerned to respect the order
lawfully passed and to ensure that the situation at the site was not converted into a
tragedy. All were expected to cooperate in the larger interest of the public. The Police
was concerned with the problem of law and order while Respondent No. 4 and Baba
Ramdev certainly should have been concerned about the welfare of their followers and
the large gathering present at the Ramlila Maidan. Thus, to that extent, the Police and
Respondent No. 4 ought to have acted in tandem and ensured that no damage to the
person or property should take place, which unfortunately did not happen. Keeping in

view the stature and respect that Baba Ramdev enjoyed with his followers, he ought to
have exercised the moral authority of his office in the welfare of the people present.
There exists a clear constitutional duty, legal liability and moral responsibility to ensure
due implementation of lawful orders and to maintain the basic rule of law. It would
have served the greater public purpose and even the purpose of the protests for which
the rally was being held, if Baba Ramdev had requested his followers to
instantaneously leave Ramlila Maidan peacefully or had assured the Authorities that
the morning yoga programme or protest programme would be cancelled and the
people would be requested to leave for their respective places. Absence of
performance of this duty and the gesture of Baba Ramdev led to an avoidable
lacerating episode. Even if the Court takes the view that there was undue haste,
adamancy and negligence on the part of the Police authorities, then also it cannot
escape to mention that to this negligence, there is a contribution by Respondent No. 4
as well. The role of Baba Ramdev at that crucial juncture could have turned the tide
and probably brought a peaceful end rather than the heart rending end of injuries and
unfortunate deaths. Even if it is assumed that the action of the Police was wrong in
law, it gave no right to others to commit any offence Injuria non excusat injuriam.
234. Every law abiding citizen should respect the law and must stand in conformity
with the rule, be as high an individual may be. Violation of orders has been made
punitive under the provisions of Section 188 Indian Penal Code, but still in other allied
proceedings, it would result in fastening the liability on all contributory partners, may
be vicariously, but the liability certainly would extend to all the defaulting parties. For
these reasons, I have to take a view that in the circumstances of the case, Baba
Ramdev and the office bearers of Respondent No. 4 have contributed to the negligence
leading to the occurrence in question and are vicariously liable for such action.
Findings and Directions:
(1) In discharge of its judicial functions, the courts do not strike down the law
or quash the State action with the aim of obstructing democracy in the name of
preserving democratic process, but as a contribution to the governmental
system, to make it fair, judicious and transparent. The courts take care of
interests which are not sufficiently defended elsewhere and/or of the victims of
State action, in exercise of its power of judicial review.
In my considered view, in the facts of the present case, the State and the
Police could have avoided this tragic incident by exercising greater restraint,
patience and resilience. The orders were passed by the authorities in undue
haste and were executed with force and overzealousness, as if an emergent
situation existed. The decision to forcibly evict the innocent public sleeping at
the Ramlila grounds in the midnight of 4th/5th June, 2011, whether taken by
the police independently or in consultation with the Ministry of Home Affairs is
amiss and suffers from the element of arbitrariness and abuse of power to
some extent. The restriction imposed on the right to freedom of speech and
expression was unsupported by cogent reasons and material facts. It was an
invasion of the liberties and exercise of fundamental freedoms. The members

of the assembly had legal protections available to them even under the
provisions of the Code of Criminal Procedure. Thus, the restriction was
unreasonable and unwarrantedly executed. The action demonstrated the might
of the State and was an assault on the very basic democratic values enshrined
in our Constitution. Except in cases of emergency or the situation
unexceptionably demanding so, reasonable notice/time for execution of the
order or compliance with the directions issued in the order itself or in
furtherance thereto is the pre-requisite. It was primarily an error of
performance of duty both by the police and Respondent No. 4 but the ultimate
sufferer was the public at large.
(2) From the facts and circumstances that emerge from the record before this
Court, it is evident that it was not a case of emergency. The police have failed
to establish that a situation had arisen where there was imminent need to
intervene, having regard to the sensitivity and perniciously perilous
consequences that could have resulted, if such harsh measures had not been
taken forthwith.
(3) The State has a duty to ensure fulfillment of the freedom enshrined in our
Constitution and so it has a duty to protect itself against certain unlawful
actions. It may, therefore, enact laws which would ensure such protection. The
rights and the liberties are not absolute in nature and uncontrolled in
operation. While placing the two, the rule of justice and fair play requires that
State action should neither be unjust nor unfair, lest it attracts the vice of
unreasonableness or arbitrariness, resultantly vitiating the law, the procedure
and the action taken thereunder.
(4) It is neither correct nor judicially permissible to say that taking of police
permission for holding of dharnas, processions and rallies of the present kind is
irrelevant or not required in law. Thus, in my considered opinion, the
requirement of associating police, which is an important organ of the State for
ensuring implementation of the rule of law, while holding such large scale
meetings, dharnas and protests, would not infringe the fundamental rights
enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution. This would
squarely fall within the regulatory mechanism of reasonable restrictions,
contemplated under Articles 19(2) and 19(3). Furthermore, it would help in
ensuring due social order and would also not impinge upon the rights of others,
as contemplated under Article 21 of the Constitution of India. The police
authorities, who are required to maintain the social order and public tranquility,
should have a say in the organizational matters relating to holding of dharnas,
processions, agitations and rallies of the present kind. However, such consent
should be considered in a very objective manner by the police authorities to
ensure the exercise of the right to freedom of speech and expression as
understood in its wider connotation, rather than use the power to frustrate or
throttle the constitutional right. Refusal and/or withdrawal of permission should
be for valid and exceptional reasons. The executive power, to cause a
restriction on a constitutional right within the scope of Section 144 Code of

Criminal Procedure., has to be used sparingly and very cautiously. The

authority of the police to issue such permission has an inbuilt element of
caution and guided exercise of power and should be in the interest of the
public. Such an exercise of power by the Police should be aimed at attainment
of fundamental freedom rather than improper suppression of the said right.
(5) I have held that the Respondent No. 4 is guilty of contributory negligence.
The Trust and its representatives ought to have discharged their legal and
moral duty and should have fully cooperated in the effective implementation of
a lawful order passed by the competitive authority under Section 144 Code of
Criminal Procedure. Due to the stature that Baba Ramdev enjoyed with his
followers, it was expected of him to request the gathering to disperse
peacefully and leave the Ramlila Maidan. He ought not have insisted on
continuing with his activity at the place of occurrence. Respondent No. 4 and all
its representatives were bound by the constitutional and fundamental duty to
safeguard public property and to abjure violence. Thus, there was legal and
moral duty cast upon the members of the Trust to request and persuade people
to leave the Ramlila Maidan which could have obviously avoided the
confrontation between the police and the members of the gathering at the
Ramlila Maidan.
(6) As difficult as it is to anticipate the right to any freedom or liberty without
any reasonable restriction, equally difficult it is to imagine existence of a right
not coupled with a duty. The duty may be a direct or an indirect consequence
of a fair assertion of the right. Part III of the Constitution, although confers
rights, duties, Regulations and restrictions are inherent thereunder. It can be
stated with certainty that the freedom of speech is the bulwark of democratic
Government. This freedom is essential for the appropriate functioning of the
democratic process. The freedom of speech and expression is regarded as the
first condition of liberty in the hierarchy of liberties granted under our
constitutional mandate.
(7) It is undisputable that the provisions of Section 144 Code of Criminal
Procedure. are attracted in emergent situations. Emergent power has to be
exercised for the purposes of maintaining public order. The material facts,
therefore, should demonstrate that the action is being taken for maintenance
of public order, public tranquility and harmony.
(8) Even if an order under Section 144 Code of Criminal Procedure. had to be
given effect to, still Respondent No. 4 had a right to stay at the Ramlila Maidan
with permissible number of people as the land owning authority-MCD had not
revoked its permission and the same was valid till 20th June, 2011. The chain
of events reveals that it was a case of police excesses and, to a limited extent,
even abuse of power.
(9) From the material placed before the Court, I am unable to hold that the
order passed by the competent authority and execution thereof are mala fide in

law or in fact or is an abdication of power and functions by the Police. The

action, of course, partially suffers from the vice of arbitrariness but every
arbitrary action necessarily need not be mala fide. Similarly every incorrect
decision in law or on facts of a given case may also not be mala fide but every
mala fide decision would be an incorrect and impermissible decision and would
be vitiated in law. Upon taking into consideration the cumulative effect of the
affidavits filed on record and other documentary evidence, I am unable to
dispel the argument that the decision of the Ministry of Home Affairs, Union of
India reflected its shadow on the decision making process and decision of the
Police authorities.
(10) I also find that there would be no illegality if the police authorities had
acted in consultation with the Union Ministry as it is the collective responsibility
of various departments of the State to ensure maintenance of law and order
and public safety in the State.
(11) Every person/body to whom such permission is granted, shall give an
undertaking to the authorities concerned that he/it will cooperate in carrying
out their duty and any lawful orders passed by any competent
court/authority/forum at any stage of the commencement of an
agitation/dharna/ procession and/or period during which the permission
granted is enforced. This, of course, shall be subject to such orders as may be
passed by the court of competent jurisdiction.
(12) Even on the touchstone of the principle of 'in terrorem', I am of the view
that the police have not acted with restraint or adhered to the principle of 'least
invasion' with the constitutional and legal rights available to Respondent No. 4
and the members of the gathering at the Ramlila Maidan.
(13) The present case is a glaring example of trust deficit between the people
governing and the people to be governed. Greater confidence needs to be built
between the authorities in power and the public at large. Thus, I hold and
direct that while considering the 'threat perception' as a ground for revoking
such permissions or passing an order under Section 144 Code of Criminal
Procedure., 'care perception' has to be treated as an integral part thereof. 'Care
perception' is an obligation of the State while performing its constitutional duty
and maintaining social order.
(14) It is unavoidable for this Court to direct that the police authorities should
take such actions properly and strictly in accordance with the Guidelines,
Standing Orders and the Rules applicable thereto. It is not only desirable but
also a mandatory requirement of the present day that the State and the police
authorities should have a complete and effective dispersement plan in place,
before evicting the gathering by use of force from a particular place, in
furtherance to an order passed by an executive authority under Section 144 of
the Code of Criminal Procedure.

(15) This is not a case where the Court can come to the conclusion that the
entire police force has acted in violation to the Rules, Standing orders and have
fallen stray in their uncontrolled zeal of forcibly evicting innocent public from
the Ramlila Maidan. There has to be a clear distinction between the cases of
responsibility of the force collectively and the responsibility of individual
members of the forces. I find from the evidence on record that some of the
police officers/personnel were very cooperative with the members of the
assembly and helped them to vacate the Ramlila Maidan while others were
violent, inflicted cane injuries, threw bricks and even used tear-gas shells,
causing fire on the stage and total commotion and confusion amongst the large
gathering at the Ramlila Maidan. Therefore, these two classes of Police Force
have to be treated differently.
(16) Thus, while directing the State Government and the Commissioner of
Police to register and investigate cases of criminal acts and offences,
destruction of private and public property against the police officers/personnel
along with those members of the assembly, who threw bricks at the police
force causing injuries to the members of the force as well as damage to the
property, I issue the following directions:
a. Take disciplinary action against all the erring police officers/personnel
who have indulged in brick-batting, have resorted to lathi charge and
excessive use of tear gas shells upon the crowd, have exceeded their
authority or have acted in a manner not permissible under the
prescribed procedures, rules or the standing orders and their actions
have an element of criminality. This action shall be taken against the
officer/personnel irrespective of what ranks they hold in the hierarchy of
police.
b. The police personnel who were present in the pandal and still did not
help the evacuation of the large gathering and in transportation of sick
and injured people to the hospitals have, in my opinion, also rendered
themselves liable for appropriate disciplinary action.
c. The police shall also register criminal cases against the police
personnel and members of the gathering at the Ramlila ground
(whether they were followers of Baba Ramdev or otherwise) who
indulged in damage to the property, brick-batting etc. All these cases
have already been reported to the Police Station Kamla Market. The
police shall complete the investigation and file a report under
section 173 of the Code of Criminal Procedure. within three months
from today.
(17) I also direct that the persons who died or were injured in this unfortunate
incident should be awarded ad hoc compensation. Smt. Rajbala, who got spinal
injury in the incident and subsequently died, would be entitled to the ad-hoc
compensation of Rs. 5 lacs while persons who suffered grievous injuries and

were admitted to the hospital would be entitled to compensation of Rs.

50,000/- each and persons who suffered simple injuries and were taken to the
hospital but discharged after a short while would be entitled to a compensation
of Rs. 25,000/- each.
For breach of the legal and moral duty and for its contributory negligence, the
consequences of financial liability would also pass, though to a limited extent,
upon the Respondent No. 4- Trust as well. Thus, I direct that in cases of death
and grievous hurt, 25% of the awarded compensation shall be paid by the
Trust. The said amount shall be paid to the Commissioner of Police, who in
turn, shall issue a cheque for the entire amount in favour of the injured or the
person claiming for the deceased.
235. The compensation awarded by this Court shall be treated as ad-hoc
compensation and in the event, the deceased or the injured persons or the persons
claiming through them institute any legal proceedings for that purpose, the
compensation awarded in this judgment shall be adjusted in those proceedings.
236. The view expressed by me in this judgment is prima facie and is without
prejudice to the rights and contentions of the parties that may be available to them in
accordance with law.
237. The suo moto Petition is disposed of with above directions while leaving the
parties to bear their own costs.
238. This Court would be failing in its duty if appreciation is not placed on record for
the proficient contribution made and adroit assistance rendered by Dr. Rajeev Dhavan,
learned amicus curiae, Mr. R.F. Nariman, learned Solicitor General of India, Mr. P.P.
Malhotra, learned Additional Solicitor General, Mr. Harish N. Salve, Mr. P.H. Parekh, Mr.
Ram Jethmalani, learned senior advocates, other learned Counsel assisting them and
all other counsel appearing in their own right.
239. Having had the advantage of going through the lucid and elaborately discussed
judgment of my esteemed brother Justice Swatanter Kumar, I feel encouraged to
contribute to this pronouncement in my own humble way on the precious issues of
liberty and freedom, guaranteed to our citizens as fundamental rights under the
Constitution and the possible lawful restrictions that can be imposed for curtailing such
rights. The legality of the order passed under Section 144Code of Criminal Procedure.
by the Assistant Commissioner of Police, Kamla Market, Central District, Delhi is also
subject to legal scrutiny by me in these proceedings to find out as to whether the said
order is in conformity with the provisions of Section 144 Code of Criminal Procedure.
read with Section 134 there of and the Delhi Police Standing Order 309.
240. I respectfully agree with all the observations and the findings recorded by my
colleague and I also concur with the observation that the findings recorded on the
sufficiency of reasons in the order dated 4.6.2011 are tentative which could have been
challenged if they so desired before the appropriate forum in proper proceedings.

Nonetheless, the reservations that I have about State Police action vis--vis the
incident in question and my opinion on the curtailment of the right of privacy of
sleeping individuals has to be expressed as it directly involves the tampering of
inviolate rights, that are protected under the Constitution. Proceedings under
Section 144, even if resorted to on sufficient grounds, the order could not be
implemented in such unruly manner. Such a power is invoked to prevent the breach of
peace and not to breach the peace itself.
241. Baba Ram Dev alongwith his large number of followers and supporters performed
a Shanti Paath at about 10 p.m. on 4th June, 2011, whereafter, all those who had
assembled and stayed back, went to sleep under tents and canopies to again get up in
the morning the next day at about 4 p.m. to attend the schedule of Ashtang Yoga
training to be conducted by Baba Ramdev.
242. Just after midnight, at about 12.30 a.m. on the 5th of June, 2011, a huge
contingent of about more than a thousand policemen surrounded the encampments
while everybody was fast asleep inside. There was a sizeable crowd of about 20,000
persons who were sleeping. They were forcibly woken up by the Police, assaulted
physically and were virtually thrown out of their tents. This was done in the purported
exercise of the police powers conferred under Section 144 Code of Criminal Procedure
on the strength of a prohibitory order dated 4.6.2011 passed by the Assistant
Commissioner of Police as mentioned hereinabove.
243. The manner in which the said order came to be implemented, raised a deep
concern about the tyrannical approach of the administration and this Court took
cognizance of the incident calling upon the Delhi Police Administration to answer this
cause. The incident had ushered a huge uproar and an enormous tirade of criticism
was flooded, bringing to our notice the said unwarranted police action, that too, even
without following the procedure prescribed in law.
244. The question is as to whether such an order stands protected under the
restriction clause of Article 19 of the Constitution of India or does it violate the rights
of a peaceful sleeping crowd, invading and intruding their privacy during sleep hours.
The incident also raises serious questions about the credibility of the police act, the
procedure followed for implementation of a prohibitory order and the justification
thereof in the given circumstances.
245. The right to peacefully and lawfully assemble together and to freely express
oneself coupled with the right to know about such expression is guaranteed under
Article 19 of the Constitution of India. Such a right is inherent and is also coupled with
the right to freedom and liberty which have been conferred under Article 21 of the
Constitution of India.
246. The background in which the said assembly has gathered has already been
explained in the judgment delivered by my learned brother and, therefore, it is not
necessary to enter into any further details thereof. The fact remains that
implementation of promulgated prohibitory orders was taken when the crowd was

asleep. The said assembly per-se, at that moment, did not prima facie reflect any
apprehension of eminent threat or danger to public peace and tranquillity nor any
active demonstration was being performed at that dead hour of night. The Police,
however, promulgated the order on the basis of an alleged information received that
peace and tranquillity of that area would be disturbed and people might indulge in
unlawful activities. The prohibitory order also recites that conditions exist that
unrestricted holding of a public meeting in the area is likely to cause obstruction to
traffic, danger to human safety and disturbance of public tranquillity and in order to
ensure speedy action for preventing any such danger to human life and safety, the
order was being promulgated.
247. The order further recites that since the notice for the promulgation cannot be
served individually as such it shall be published for information through the Press and
by affixing the copies on the Notice Board of the Office of the Police Officials,
Administration and Police Stations, including the Municipal Corporation Offices.
248. No doubt, the law of social control is preserved in the hands of the State, but at
the same time, protection against unwarranted governmental invasion and intrusive
action is also protected under the laws of the country. Liberty is definitely no licence
and the right of such freedom is not absolute but can be regulated by appropriate
laws. The freedom from official interference is, therefore, regulated by law but law
cannot be enforced for crippling the freedom merely under the garb of such
Regulation. The police or the Administration without any lawful cause cannot make a
calculated interference in the enjoyment of the fundamental rights guaranteed to the
citizens of this country. As to what was material to precipitate such a prohibitory action
is one aspect of the matter, but what is more important is the implementation of such
an order. This is what troubles me in the background that a prohibitory order was
sought to be enforced on a sleeping crowd and not a violent one. My concern is about
the enforcement of the order without any announcement as prescribed for being
published or by its affixation in terms of the Delhi Police Standing Order 309 read with
Section 134 Code of Criminal Procedure.
249. It is believed that a person who is sleeping, is half dead. His mental faculties are
in an inactive state. Sleep is an unconscious state or condition regularly and naturally
assumed by man and other living beings during which the activity of the nervous
system is almost or entirely suspended. It is the state of slumber and repose. It is a
necessity and not a luxury. It is essential for optimal health and happiness as it
directly affects the quality of the life of an individual when awake inducing his mental
sharpness, emotional balance, creativity and vitality. Sleep is, therefore, a biological
and essential ingredient of the basic necessities of life. If this sleep is disturbed, the
mind gets disoriented and it disrupts the health cycle. If this disruption is brought
about in odd hours preventing an individual from getting normal sleep, it also causes
energy disbalance, indigestion and also affects cardiovascular health. These
symptoms, therefore, make sleep so essential that its deprivation would result in
mental and physical torture both. It has a wide range of negative effects. It also
impairs the normal functioning and performance of an individual which is compulsory
in day-to-day life of a human being. Sleep, therefore, is a self rejuvenating element of

our life cycle and is, therefore, part and partial of human life. The disruption of sleep is
to deprive a person of a basic priority, resulting in adverse metabolic effects. It is a
medicine for weariness which if impeded would lead to disastrous results.
250. Deprivation of sleep has tumultuous adverse effects. It causes a stir and disturbs
the quiet and peace of an individual's physical state. A natural process which is
inherent in a human being if disturbed obviously affects basic life. It is for this reason
that if a person is deprived of sleep, the effect thereof, is treated to be torturous. To
take away the right of natural rest is also therefore violation of a human right. It
becomes a violation of a fundamental right when it is disturbed intentionally,
unlawfully and for no justification. To arouse a person suddenly, brings about a feeling
of shock and benumbness. The pressure of a sudden awakening results in almost a
void of sensation. Such an action, therefore, does affect the basic life of an individual.
The state of sleeping is assumed by an individual when he is in a safe atmosphere. It
is for this reason that this natural system has been inbuilt by our creator to provide
relaxation to a human being. The muscles are relaxed and this cycle has a normal
recurrence every night and lasts for several hours. This necessity is so essential that
even all our transport systems provide for facilities of sleep while travelling. Sleep is
therefore, both, life and inherent liberty which cannot be taken away by any
unscrupulous action. An Irish Proverb goes on to say that the beginning of health is
sleep. The state of sleep has been described by Homer in the famous epic Iliad as
"sleep is the twin of death". A person, therefore, cannot be presumed to be engaged in
a criminal activity or an activity to disturb peace of mind when asleep. Aristotle, the
great Greek philosopher has said that all men are alike when asleep. To presume that
a person was scheming to disrupt public peace while asleep would be unjust and would
be entering into the dreams of that person.
251. I am bewildered to find out as to how such declaration of the intention to impose
the prohibition was affected on a sleeping crowd. There may be a reason available to
impose prohibitory orders calling upon an assembly to disperse, but to me, there does
not appear to be any plausible reason for the police to resort to blows on a sleeping
crowd and to throw them out of their encampments abruptly. The affidavits and
explanation given do not disclose as to why the police could not wait till morning and
provide a reasonable time to this crowd to disperse peacefully. The undue haste
caused a huge disarray and resulted in a catastrophe that was witnessed on Media and
Television throughout the country. I fail to find any explanation for the gravity or the
urgent situation requiring such an emergent action at this dark hour of midnight. I,
therefore, in the absence of any such justification have no option but to deprecate
such action and it also casts a serious doubt about the existence of the sufficiency of
reasons for such action. The incident in this litigation is an example of a weird
expression of the desire of a tyrannical mind to threaten peaceful life suddenly for no
justification. This coupled with what is understood of sleep hereinbefore, makes it clear
that the precipitate action was nothing but a clear violation of human rights and a
definite violation of procedure for achieving the end of dispersing a crowd.
252. Article 355 of the Constitution provides that the Government of every State
would act in accordance with the provisions of the Constitution. The primary task of

the State is to provide security to all citizens without violating human dignity. Powers
conferred upon the statutory authorities have to be, perforce, admitted. Nonetheless,
the very essence of constitutionalist is also that no organ of the State may arrogate to
itself powers beyond what is specified in the Constitution. (Vide: GVK Industries Ltd.
and. Anr. v. Income Tax Officer and. Anr. : (2011) 4 SCC 36; and Nandini
Sundar and Ors. v. State of Chhatisgarh : AIR 2011 SC 2839).
253. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and
Ors. v. Union of India : AIR 1971 SC 530, this Court held that even in civil
commotion or even in war or peace, the State cannot act catastrophically outside the
ordinary law and there is legal remedy for its wrongful acts against its own subjects or
even a friendly alien within the State.
254. In Motilal Padampat Sugar Mills Company Ltd. v. State of U.P. and. Ors. :
AIR 1979 SC 621, this Court held that rule of law means, no one, however, high or low
is above the law. Everyone is subject to the law fully and completely as any other and
the Government is no exception. Therefore, the State authorities are under a legal
obligation to act in a manner that is fair and just. It has to act honestly and in good
faith. The purpose of the Government is always to serve the country and ensure the
public good. (See also: D.K. Basu v. State of West Bengal ( AIR 1997 SC 610).
255. Privacy and dignity of human life has always been considered a fundamental
human right of every human being like any other key values such as freedom of
association and freedom of speech. Therefore, every act which offends or impairs
human dignity tantamounts to deprivation pro tanto of his right to live and the State
action must be in accordance with reasonable, fair and just procedure established by
law which stands the test of other fundamental rights. (Vide:Francis Coralie
Mullin v. The Administrator, Union Territory of Delhi and. Ors. AIR 1981 SC
746).
256. The Constitution does not merely speaks for human right protection. It is evident
from the catena of judgments of this Court that it also speaks of preservation and
protection of man as well as animals, all creatures, plants, rivers, hills and
environment. Our Constitution professes for collective life and collective responsibility
on one hand and individual rights and responsibilities on the other hand.
257. In Kharak Singh v. State of U.P. and Ors. : AIR 1963 SC 1295;
and Govind v. State of Madhya Pradesh and Anr. : AIR 1975 SC 1378, this Court
held that right to privacy is a part of life under Article 21 of the Constitution which has
specifically been re-iterated in People's Union for Civil Liberties v. Union of India
and. Anr. : AIR 1997 SC 568, wherein this Court held:
We do not entertain any doubt that the word 'life' in Article 21 bears the same
signification. Is then the word 'personal liberty' to be construed as excluding
from its purview an invasion on the part of the police of the sanctity of a man's
home and an intrusion into his personal security and his right to sleep which is
the normal comfort and a dire necessity for human existence even as an

animal? It might not be inappropriate to refer here to the words of the

preamble to the Constitution that it is designed to 'assure the dignity of the
individual' and therefore of those cherished human values as the means of
ensuring his full development and evolution. We are referring to these
objectives of the framers merely to draw attention to the concepts underlying
the Constitution which would point to such vital words as 'personal liberty'
having to be construed in a reasonable manner and to be attributed that sense
which would promote and achieve those objectives and by no means to stretch
the meaning of the phrase to square with any preconceived notions or
doctrinaire constitutional theories.
(Emphasis added)
258. The citizens/persons have a right to leisure; to sleep; not to hear and to remain
silent. The knock at the door, whether by day or by night, as a prelude to a search
without authority of law amounts to be police incursion into privacy and violation of
fundamental right of a citizen. (See: Wolf v. Colorado (1948) 338 US 25).
259. Right to privacy has been held to be a fundamental right of the citizen being an
integral part of Article 21 of the Constitution of India by this Court. Illegitimate
intrusion into privacy of a person is not permissible as right to privacy is implicit in the
right to life and liberty guaranteed under our Constitution. Such a right has been
extended even to woman of easy virtues as she has been held to be entitled to her
right of privacy. However, right of privacy may not be absolute and in exceptional
circumstance particularly surveillance in consonance with the statutory provisions may
not violate such a right. (Vide: Malak Singh etc. v. State of Punjab and Haryana
and Ors. : AIR 1981 SC 760; State of Maharashtra and Anr. v. Madhukar
Narayan Mardikar : AIR 1991 SC 207; R. Rajagopal @ R.R. Gopal and
Anr. v. State of Tamil Nadu and Ors. : AIR 1995 SC 264; PUCL v. Union of India
and Anr. : AIR 1997 SC 568; Mr. 'X' v. Hospital 'Z' : (1998) 8 SCC
296;Sharda v. Dharmpal : (2003) 4 SCC 493; People's Union for Civil Liberties
(PUCL) and Anr. v. Union of India and Anr.: AIR 2003 SC 2363; District
Registrar and Collector, Hyderabad and Anr. v. Canara Bank and Ors (2005) 1
SCC 496; Bhavesh Jayanti Lakhani v. State of Maharashtra and Ors. : (2009) 9
SCC 551; and Smt. Selvi and Ors. v.State of Karnataka : AIR 2010 SC 1974).
260. In Ram Jethmalani and Ors. v. Union of India and Ors: (2011) 8 SCC 1, this
Court dealt with the right of privacy elaborately and held as under:
Right to privacy is an integral part of right to life. This is a cherished constitutional value,
and it is important that human beings be allowed domains of freedom that are free of
public scrutiny unless they act in an unlawful manner.... The solution for the problem of
abrogation of one zone of constitutional values cannot be the creation of another zone of
abrogation of constitutional values.... The notion of fundamental rights, such as a right
to privacy as part of right to life, is not merely that the State is enjoined from derogating
from them. It also includes the responsibility of the State to uphold them against the

actions of others in the society, even in the context of exercise of fundamental rights by
those others.
261. The courts have always imposed the penalty on disturbing peace of others by
using the amplifiers or beating the drums even in religious ceremonies. (Vide:Rabin
Mukherjee &. Ors. v. State of West Bengal and. Ors: AIR 1985 Cal.
222; Burrabazar Fireworks Dealers Association v.Commissioner of Police
Calcutta : AIR 1998 Cal 121; Church of God (Full Gospel) in India v. K.K.R.
Majestic Colony Welfare Assn. and. Ors. : AIR 2000 SC 2773; and Forum,
Prevention of Environment and Sound Pollution v. Union of India and. Ors.:
AIR 2006 SC 348). In the later judgment, this Court issued several directions including
banning of using the fireworks or fire crackers except between 6.00 a.m. and 10.00
p.m. There shall no use of fire crackers in silence zone i.e. within the area less than
100 meters around hospitals, educational institutions, courts, religious places.
262. It is in view of this fact that, in many countries there are complete night curfews
(at the airport i.e. banning of landing and taking off between the night hours), for the
reason that the concept of sound sleep has been associated with sound health which is
inseparable facet of Article 21 of the Constitution.
263. It may also be pertinent to mention here that various statutory provisions
prohibit arrest of a judgment debtor, a woman in the night and restrain to enter in the
night into a constructed area suspected to have been raised in violation of the
sanctioned plan, master plan or Zonal Plan for the purpose of survey or demolition.
(See: Section 55 of Code of Civil Procedure; Section 46(4) Code of Criminal
Procedure.; and Sections 25 and 42 of the U.P. Urban Planning and Development Act,
1973).
264. While determining such matters the crucial issue in fact is not whether such
rights exist, but whether the State has a compelling interest in the Regulation of a
subject which is within the police power of the State. Undoubtedly, reasonable
Regulation of time, place and manner of the act of sleeping would not violate any
constitutional guarantee, for the reason that a person may not claim that sleeping is
his fundamental right, and therefore, he has a right to sleep in the premises of the
Supreme Court itself or within the precincts of the Parliament.
265. More so, I am definitely not dealing herein with the rights of homeless persons
who may claim right to sleep on footpath or public premises but restrict the case only
to the extent as under what circumstances a sleeping person may be disturbed and I
am of the view that the State authorities cannot deprive a person of that right
anywhere and at all times.
266. While dealing with the violation of Human Rights by Police Officials, this Court
in Prithipal Singh and Ors. v. State of Punjab and Anr.: (2012) 1 SCC 10, held as
under:

The right to life has rightly been characterized as "supreme" and 'basic'; it includes both
so-called negative and positive obligations for the State". The negative obligation means
the overall prohibition on arbitrary deprivation of life. In this context, positive obligation
requires that State has an overriding obligation to protect the right to life of every
person within its territorial jurisdiction.
267. Thus, it is evident that right of privacy and the right to sleep have always been
treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc.
268. Section 144 Code of Criminal Procedure. deals with immediate prevention and
speedy remedy. Therefore, before invoking such a provision, the statutory authority
must be satisfied regarding the existence of the circumstances showing the necessity
of an immediate action. The sine qua non for an order under Section 144 Code of
Criminal Procedure. is urgency requiring an immediate and speedy intervention by
passing of an order. The order must set out the material facts of the situation. Such a
provision can be used only in grave circumstances for maintenance of public peace.
The efficacy of the provision is to prevent some harmful occurrence immediately.
Therefore, the emergency must be sudden and the consequences sufficiently grave.
269. The disobedience of the propitiatory order becomes punishable under
Section 188 I.P.C. only "if such disobedience causes or tends to cause obstruction,
annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully
employed" or "if such disobedience causes or tends to cause damage to human life,
health or safety or causes or tends to cause riot or affray". Disobedience of an order
by public servant lawfully empowered will not be an offence unless such disobedience
leads to enumerated consequences stated under the provision of Section 188 Indian
Penal Code. More so, a violation of the propitiatory order cannot be taken cognizance
of by the Magistrate who passed it. He has to prefer a complaint about it as provided
under Section 195 (1)(a) Indian Penal Code. A complaint is not maintainable in the
absence of allegation of danger to life, health or safety or of riot or affray.
270. Section 144 Code of Criminal Procedure. itself provides the mode of service of the
order in the manner provided by Section 134 Code of Criminal Procedure:
Section 134 Code of Criminal Procedure. reads as under:
Service or notification of order. (1) The order shall, if practicable, be served on the person against
whom it is made, in the manner herein provided for service of a
summons.
(2) If such order cannot be so served, it shall be notified by
proclamation, published in such manner, as the State Government may,
by rules, direct, and a copy thereof shall be stuck up at such place or
places as may be fittest for conveying the information to such persons.

271. Delhi Police Standing Order 309 - Regulation of Processions and Rules prescribe
the mode of service of the order passed under Section 144 Code of Criminal
Procedure., inter-alia:
Xxx
(5) Arrangement at the place of demonstration should include the following:
a) Display of banner indicating promulgation of Section 144 Code of
Criminal Procedure.
b) At least 2 videographers be available on either side of the
demonstration to capture both demonstrators as well as police
response/action.
c) Location of Ambulance/PCR vans for shifting injured persons.
d) Loud hailers should be available.
(6) Repeated use of PA system a responsible officer- appealing/advising the
leaders and demonstrators to remain peaceful and come forward for
memorandum/deputation etc. or court arrest peacefully. Announcements
should be videographed.
(7) If they do not follow appeal and turn violent declare the assembly unlawful
on PA system & videograph.
(8) Warning on PA system prior to use of any kind of force must be ensured
and also videographed.
xxx
(13) Special attention be paid while dealing with women's demonstrations only women police to tackle them.
272. The order dated 4.6.2011 passed under Section 144 Code of Criminal Procedure.
reads as under:
(i) whereas information has been received that some people/groups of people
indulge in unlawful activities to disturb the peace and tranquillity in the area of
Sub Div. Kamla Market, Delhi.
(ii) and whereas reports have been received indicating that such conditions
now
exist
that
unrestricted
holding
of
public
meeting,
processions/demonstration etc. in the area is Iikely to cause obstruction to
traffic, danger to human safety and disturbance of public tranquillity.

(iii) and whereas it is necessary to take speedy measures in this regard to

prevent danger to human life, safety and disturbance of public tranquillity.
(iv) Now, therefore, in exercise of the powers conferred upon me by virtue of
Section 144 Criminal Procedure Code 1973 read with Govt. of India, Ministry of
Home Affairs and New Delhi's Notification No. U.11036/1/2010, (i) UTI, dated
09.09.2010. I Manohar Singh, Assistant Commissioner of Police, Sub-Division
Kamla Market, Central District, Delhi do hereby make this written order
prohibiting.
xxx
(vi) Any person contravening this order shall be liable to be punished in
accordance with the provisions of Section 188 of the Indian Penal Code; and
(vii) As the notice cannot be served individually on all concerned, the order is
hereby passed ex-parte. It shall be published for the information of the public
through the press and by affixing copies on the notice boards of the office of all
DCPs, Addl. DCPs, ACPs, Tehsil officers, all police stations concerned and the
offices of the NDMC and MCD.
(viii) Religious functions/public meeting etc. can be held with prior permission,
in writing, of Deputy Commissioner of Police, Central District, Delhi and this
order shall not apply to processions which have the requisite permission of the
Police.
273. It is evident from the order passed under Section 144 Code of Criminal
Procedure. itself that the people at large, sleeping in tents, had not been informed
about such promulgation and were not asked to leave the place. There had been a
dispute regarding the service of the orders on the organizers only. Therefore, there
was utter confusion and the gathering could not even understand what the real dispute
was and had reason to believe that police was trying to evict Baba Ramdev forcibly. At
no point of time, the assembly was declared to be unlawful. In such a fact-situation,
the police administration is to be blamed for not implementing the order, by strict
adherence to the procedural requirements. People at large have a legitimate
expectation that Executive Authority would ensure strict compliance to the procedural
requirements and would certainly not act in derogation of applicable Regulations.
Thus, the present is a clear cut case of Human Rights violation.
274. There was no gossip or discussion of something untrue that was going on. To the
contrary, it was admittedly an assembly of followers, under a peaceful banner of Yogic
training, fast asleep. The assembly was at least, purportedly, a conglomeration of
individuals gathered together, expressive of a determination to improve the material
condition of the human race. The aim of the assembly was prima facie unobjectionable
and was not to inflame passions. It was to ward off something harmful. What was
suspicious or conspiratory about the assembly, may require an investigation by the
appropriate forum, but to my mind the implementation appears to have been done in

an unlawful and derogatory manner that did violate the basic human rights of the
crowd to have a sound sleep which is also a constitutional freedom, acknowledged
under Article 21 of the Constitution of India.
275. Such an assembly is necessarily illegal cannot be presumed, and even if it was,
the individuals were all asleep who were taken by surprise altogether for a
simultaneous implementation and action under Section 144 Code of Criminal
Procedure. without being preceded by an announcement or even otherwise, giving no
time in a reasonable way to the assembly to disperse from the Ramlila Ground. To the
contrary, the sleep of this huge crowd was immodestly and brutally outraged and it
was dispersed by force making them flee hither and thither, which by such precipitate
action, caused a mayhem that was reflected in the media.
276. An individual is entitled to sleep as comfortably and as freely as he breathes.
Sleep is essential for a human being to maintain the delicate balance of health
necessary for its very existence and survival. Sleep is, therefore, a fundamental and
basic requirement without which the existence of life itself would be in peril. To disturb
sleep, therefore, would amount to torture which is now accepted as a violation of
human right. It would be similar to a third degree method which at times is sought to
be justified as a necessary police action to extract the truth out of an accused involved
in heinous and cold- blooded crimes. It is also a device adopted during warfare where
prisoners of war and those involved in espionage are subjected to treatments
depriving them of normal sleep.
277. Can such an attempt be permitted or justified in the given circumstances of the
present case? Judicially and on the strength of impartial logic, the answer has to be in
the negative as a sleeping crowd cannot be included within the bracket of an unlawful
category unless there is sufficient material to brand it as such. The facts as uncovered
and the procedural mandate having been blatantly violated, is malice in law and also
the part played by the police and administration shows the outrageous behaviour
which cannot be justified by law in any civilized society. For the reasons aforesaid, I
concur with the directions issued by my learned colleague with a forewarning to the
Respondents to prevent any repetition of such hasty and unwarranted act affecting the
safe living conditions of the citizens/persons in this country.
Equivalent
Citation: 1998IIAD(SC)291,
AIR1998SC1064,
1998(1)SCALE616,
(1998)3SCC732,
(1998)SCC(LS)946,

JT1998(1)SC719,
[1998]1SCR919,

1998(2)SCT302(SC)
IN THE SUPREME COURT OF INDIA
C.A. No. 3867 of 1988
Decided On: 17.02.1998
Appellants: M.H. Devendrappa
Vs.
Respondent: The Karnataka State Small Industries Development Corporation

Hon'ble
S.V. Manohar and D.P. Wadhwa, JJ.

Judges/Coram:

Subject: Media and Communication

Subject: Service
Catch Words
Mentioned IN
Relevant
Constitution of India - Article 19(1)

Section:

Acts/Rules/Orders:
Constitution of India - Article 19(1), Constitution of India - Article 311; Bihar
Government Servants Conduct Rules - Rule 4A; Central Civil Services (Conduct) Rules,
1955 ;Service Rules of Karnataka State Small Industries Development Corporation Rule 19(1), Service Rules of Karnataka State Small Industries Development
Corporation - Rules 22
Cases
Referred:
P. Balakotaiah v. The Union of India & Ors. ; Kameshwar Prasad & Ors. v. The State of
Bihar & Anr. O.K. Ghosh & Anr. v. E.X. Joseph ; Marvin L. Pickering v. Board of
Education of Township High School 391 US 563; Permanent Secretary, Ministry of
Agriculture and Ors. v. De Freitas 1996(1) CHRB 1
Citing

Reference:

Discussed
5

Case

Note:

Service - dismissal - Rule 22 of Service Rule of Karnataka State Small

Industries Development Corporation - disciplinary action under Rule 22 taken
against appellant and then dismissed - same was challenged in appeal - Rule
22 imposes penalty on employee who commits breach of Service Rule,
displays negligence in subordination and knowingly does anything
detrimental to interest and prestige of corporation or is guilty of any
misconduct - appellant made direct public attack on head of his organization his conduct was detrimental to proper functioning of organization - appellant
making public statement against head of organization amounted to lowering
prestige of organization - disciplinary action under Rule 22 against appellant
valid.

Subject
Category
:
SERVICE MATTERS - REMOVAL/DISMISSAL/TERMINATION FROM SERVICE OR MAJOR
PENALTIES

HELD See paras 10, 11, 12 and 22.

ORDER
S.V. Manohar, J.
1. At the material time the appellant was the Assistant Manager of the respondentKarnataka State Small Industries Development Corporation (KSSIDC), Bangalore. He
was also the President of the Karnataka State Small Industries Development
Corporation Employees' Welfare Association, Bangalore.
2. On 3rd of June, 1977 the appellant addressed a letter to the Governor of Karnataka
on behalf of the Karnataka State Small Industries Development Corporation
Employees' Welfare Association in which he stated that the KSSIDC Corporation was
likely to be wound up on account of bad administration, corruption and nepotism. He
said that till 1977 the Corporation was running at a profit. However, since then it was
sustaining continuous losses. In the letter it was alleged that several persons were
being appointed in the Corporation who were not properly qualified at the instance of
political leaders and ministers. The letter set out some instances of these kinds of
appointments. There were also allegations in the letter about the nexus between
contractors for various projects and the management of the Corporation. There were
also some allegations about cement purchased form the Corporation being diverted
and various such alleged malpractices in general terms. The letter requested the
Governor to arrange to investigate the working conditions of the said Corporation. The
letter had no connection with the service conditions of the employees or the objects of
the Employees' Welfare Association.
3. On 31st of December 1977, the appellant issued a press statement which was
published in a Kannada Daily called Sanyuktha Karnataka of the same date. The
appellant issued a statement welcoming the dismissal of Mr. S.C. Venkatesh, who was
then the Chairman of the appellant-Corporation from the Presidentship of the
Bangalore City District Congress Committee. The appellant also expressed the hope
that political leaders would prevail upon the Government and remove Mr. S.C.
Venkatesh from the Presidentship of the respondent-Corporation thereby saving lakhs
of rupees as Mr. S.C. Venkatesh was doing illegal activities.
4. In January, 1978 the respondent wrote to the appellant seeking confirmation about
the authorship of the letter which had been sent to the Governor and asking for his
explanation as to why disciplinary action should not be taken against him. Thereupon
the appellant went on leave from 9th of January 1978 till 31st of January, 1978. The
appellant absented himself from duty from 9th of January, 1978 and on 12th of
January, 1978 he sent a telegram to the respondent seeking commuted leave from
9.1.1978 to 31.1.1978. On 1st of February, 1978 the respondent published a notice in
the newspaper calling upon the appellant to report back for duty within seven days. By
letter of 9th of February, 1978, the appellant was asked to show cause in writing as to

why disciplinary action should not be taken as per Rule 22 of the Service Rules of the
Corporation. The appellant sent a reply dated 17.2.1978.
5. Thereafter on 11.4.1978 three articles of charge were served on the appellant. The
charges were to the following effect:
6. Charge No. 1 was to the effect that he had written a letter dated 3.6.1977 to the
Governor of Karnataka pointing out mismanagement in the respondent-Corporation.
Being an employee of the Corporation he could not address the letter to the Governor
without permission of the management. This amounted to violation of Rule 22 of the
Service Rules of the Corporation, since it was misconduct and knowingly doing
something detrimental to the interests and the prestige of the Corporation.
7. Charge No. 2 was to the effect that the appellant had issued a statement in
Samyukta Karnataka Kannada Daily dated 31.12.1997 attributing motives to the then
Chairman of the respondent-Corporation and welcoming his dismissal from the
Presidentship of the Bangalore District Congress Committee. Being an employee of the
Corporation he could not issue a press statement of a political nature of indulge in
political activities which amounted to gross misconduct and knowingly committing an
action detrimental to the interests or prestige of the Corporation.
8. The third charge was to the effect that his act of leaving the office unauthorisedly
with effect from 9.1.1978 and staying away from his legitimate work amounted to
misconduct.
9. The appellant submitted a written statement dated 27.4.1978 in which he stated
that he had already filed a suit before the District Court, Bangalore for a declaration
and injunction. He stated that all his actions were in his capacity as the President of
the respondent-Employees' Welfare Association and that the enquiry against him was
illegal and without jurisdiction and was in mala fide exercise of power. He also sought
to justify what he stated in the letter to the Governor.
10. In the Civil suit no injunction was granted. The enquiry proceeded. On 31.5.1978
the appellant stated before the Enquiry Officer that he would not participate in the
enquiry. Thereafter the enquiry against him was held ex parte and he was held guilty.
On receipt of the report of the Enquiry Officer, the disciplinary authority issued a show
cause notice to the appellant dated 19.6.1978 in which it was pointed out that the first
two charges had been held proved against him while the third charge had been held as
partly proved. In view thereof the appellant was asked to show cause why action
should not be taken against him dismissing him from service. The appellant sent a
reply dated 24.6.1978.
11. On 14.7.1978 an order was passed dismissing the appellant from service. The
appellant filed a writ petition before the High Court of Karnataka challenging the order
of dismissal. A learned Single Judge of the High Court dismissed the writ petition. The
appeal of the appellant before a Division Bench of the High Court has also been
dismissed. Hence the present appeal has been filed.
12. Rule 22 of the Service Rules of the respondent-Corporation as set out by the
appellant in his special leave petition before this Court, is as follows:-

"An employee, who commits a breach of these rules or displays negligence, inefficiency
or in-subordination, who knowing does anything detrimental to the interests or prestige
of the Corporation or in conflict with official instructions or is guilty of any activity of
misconduct or misbehavior shall be liable to one or more of the following penalties."
13. The other relevant Rule is Rule 19 which is as follows:
"19. Participation in Politics:
No employee shall be a member of or otherwise associate with any political
party in politics nor shall he take part in, subscribe in aid of, or assist in any
political movement or activity."
It is the contention of the appellant that in writing the letter of 3rd June, 1977
to the Governor of Karnataka and releasing the press statement of 31.12.1977
he had exercised his fundamental right of freedom of speech and expression
under Article 19(1)(a) as also he had exercised his right to form associations or
unions under Article 19(1)(c) of the Constitution and that he could not be
dismissed from service when he had exercised his fundamental rights under
Article 19(1)(a) and 19(1)(c). This is the issue that needs to be examined.
14. The right to freedom of speech and expression is subject to reasonable restrictions
under Article 19(2). Such restrictions can be in the interest of sovereignty and integrity
of India, security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an
offence. Similarly, Article 19(1)(c) is also subject to reasonable restrictions under
Article 19(4). Such reasonable restrictions can be made, inter alia, in the interest of
public order or morality. Article 19(2) or 19(4) may not be directly relevant in the
present case in view of the provisions contained in Rule 22 of the Service Rules. Rule
22 of the Service Rules is not meant to curtail freedom of speech or expression or the
freedom to form associations or unions. It is clearly meant to maintain discipline within
the service, to ensure efficient performance of duty by the employees of the
Corporation, and to protect the interests and prestige of the Corporation. Therefore,
under Rule 22 an employee who disobeys the service Rules or displays negligence,
inefficiency or in-subordination or does anything detrimental to the interests or
prestige of the Corporation or acts in conflict with official instructions or is guilty of
misconduct, is liable to disciplinary action. Rule 22 is not primarily or even essentially
designed to restrict, in any way, freedom of speech or expression or the right to form
associations or unions. A Rule which is not primarily designed to restrict any of the
fundamental rights cannot be called in question as violating Article 19(1)(a) or 19(1)
(c). In fact, in the present proceedings the constitutional validity of Rule 22 is not
under challenge. What is under challenge is the order of dismissal passed for violating
Rule 22 when the impugned conduct which violates Rule 22 is held out as an exercise
of a right under Article 19(1)(a) or 19(1)(c).
15. In the case of P. Balakotaiah v. The Union of India & Ors., : [1958]1SCR1052
certain railway employees who belonged to a Workers' Union sponsored by the
Communists carried on agitation for a general strike in order to paralyse
communications and movement of essential supplies. They were charge-sheeted and
their services were terminated. The charges showed that the action was taken against
the employees not because they were Communists or trade-unionists but because they
were engaged in subversive activities. This Court said that there is no contravention of

Article 19(1)(c) by the impugned order. The impugned order did not prevent the
workers from continuing to be Communists or trade-unionists. Their right in that behalf
remained as before. The real complaint of the workers was that their services had
been terminated and this did not involve infringement of any of their constitutional
rights apart from Article311. This court said, "The appellants have no doubt a
fundamental right to form associations under Article 19(1)(c) but they have no
fundamental right to be continued in employment by the State and when their services
are terminated by the State they cannot complain of the infringement of any of their
constitutional rights when no question of violation of Article 311 arises" (page 1064).
16. However, in the case of Kameshwar Prasad & Ors. v. The State of Bihar & Anr., :
[1962] Supp. 3 SCR 369, Balakothaiah's case (supra) was distinguished on the ground
mat the Service Rules had not been challenged as ultra vires in that case. In
Kameshwar Prasad's case (supra) there was a challenge to Rule 4 A of the Bihar
Government Servants Conduct Rules in so far as it prohibited any form of
demonstrations by Government servants. This court said that a Government servant,
by accepting Government service, did not lose his fundamental rights under
Article 19 and that, Rule 4A in so far as it prohibited all kinds of demonstrations,
whether orderly or disorderly, would be violative of Article 19(1)(b) which secured the
right to assemble peaceably and without arms. The Court felt that the Rule was so
worded that it was not possible to make a distinction under the Rule between
demonstrations which could be peaceful and demonstrations which could be violent. So
that it was not possible to say that to the extent that the Rule prohibited violent
demonstrations, which may result in breach of public order, the Rule was valid. The
entire Rule, therefore, in so far as it prohibited demonstrations, was struck down.
However, while doing so, the Court said the following (page 384):
"We have rejected the broad contention that persons in the service of
Government form a class apart to whom the rights guaranteed by Part III do
not, in general, apply. By accepting the contention that the freedoms
guaranteed by Part III and in particular those in Article 19(1)(a) apply to the
servants of Government, we should not be taken to imply that in relation to this
class of citizens the responsibility arising from official position would not by
itself impose some limitations on the exercise of their rights as citizens."
[underlining ours]
Illustrations would be, the duty to maintain the secrecy of voting by an officer or clerk
engaged in election duty, the duty to maintain confidentiality of defence strategies, and
so on. Therefore, in Kameshwar Prasad's case (supra) this Court made it clear that it
was not in any manner affecting by the said Judgment, the Rules of Government
service designed for proper discharge of duties and obligations by Government
servants, although they may curtail or impose limitations on their rights under Part III
of the Constitution.
18. In the case of O.K. Ghosh & Anr. v. E.X. Joseph : [1963] Supp. 1 SCR 789, the
respondent, a Central Government servant, who was the Secretary of the Civil
Accounts Association was departmentally proceeded against under Rules 4(A) and 4(B)
of the Central Civil Services (Conduct) Rules, 1955, for participating in demonstrations
in preparation of a general strike and for refusing to dissociate from the Association
after the Government had withdrawn its recognition of it. This Court set aside Rule
4(B) as invalid and violative of Article 19(1)(c). The Rule provided that no Government

servant shall join or continue to be a member of any services association which the
Government did not recognise or in respect of which recognition had been refused or
withdrawn by it. This Court said that Rule 4(B) imposed a restriction on the undoubted
right of a Government servant under Article 19(1)(c) which was neither reasonable nor
in the interest of "public order" under Article 19(4). Because, in granting or
withdrawing the recognition, the Government might be actuated by considerations
other than those of efficiency or discipline amongst the services or consideration of
public order. However, Government servants can be subjected to Rules which are
intended to maintain discipline within their ranks and which lead to an efficient
discharge of their duties. The Court observed, (page 794): "There can be no doubt
that Government servants can be subjected to Rules which are intended to maintain
discipline amongst their ranks and to lead to an efficient discharge of their duties.
Discipline amongst Government employees and their efficiency may, in a sense, be
said to be related to public order. But in considering the scope of clause (4), it has to
be borne in mind that the Rule must be in the interests of public order and must
amount to a reasonable restriction....A restriction can be said to be in the interests of
public order only if the connection between the restriction and the public order is
proximate and direct."
19. In all these cases, this Court has been at pains to point out that Service Rules can
be framed to maintain efficiency and discipline within the ranks of Government
servants. In the case of O.K. Ghosh (supra), this Court considered such Rules as being
saved by the "public order" clause under Article 19(4). In the present case, the
restraint is against doing anything which is detrimental to the interests or prestige of
the employer. The detrimental action may consist of writing a letter or making a
speech. It may consist of holding a violent demonstration or it may consist of joining a
political organisation contrary to the Service Rules. Any action which is detrimental to
the interests or prestige of the employer clearly undermines discipline within the
organisation and also the efficient functioning of that organisation. Such a Rule could
be construed as falling under "public order" clause as envisaged by O.K. Ghosh
(supra).
20. The same requirements of Rule 22 can be better looked at from the point of view
of Article 19(1)(g) as requirements in furtherance of the proper discharge of the public
duties of Government service. Rules which are directly linked to and are essential for
proper discharge of duties of a public office would be protected under Article 19(1)
(g) as in public interest. If these Rules are alleged to violate other freedoms under
Article 19, such as, freedom of speech or expression or the freedom to form
associations or unions or the freedom to assemble peaceably and without arms, the
freedoms have to be read harmoniously so that Rules which are reasonably required in
furtherance of one freedom are not struck down as violating other freedoms. Seervai in
"Constitutional Law of India", Vol. 1 page 816, para 10.238 states "...a civil servant is
following a profession or occupation within the meaning of Article 19(1)(g). Whereas
his right to freedom of speech and expression, or the right to form an association can
be subject only to reasonable restrictions in the interest of public order or morality, his
right to carry on his profession or calling can be made subject to reasonable
restrictions in the public interest. If the true scope and object of an impugned rule is
not to deal with freedom or speech or freedom of association but to secure standards
of conduct necessary for the efficient and proper discharge of a profession or calling, in
the public interest, then such restrictions can be justified under Article 19(6), although
they cannot be justified under Article 19(2) and (3)...."

21. The fundamental freedoms enumerated under Article 19 are not necessarily and in
all circumstances mutually supportive, although taken together they weave a fabric of
a free and equal democratic society e.g. the right to reside and settle in any part of the
country can be put in jeopardy by a vociferous local group freely expressing its view
against persons from another part of the country. Freedom of speech of one affects the
freedom movement of another. Exercising the right to form an association may curtail
the freedom to express views against its activities. For example, a person joining an
association to promote adoptions cannot express anti-adoption views. He may lose his
membership. Some restriction on one's rights may be necessary to protect another's
rights in a given situation. Proper exercise of rights may have, implicit in them, certain
restrictions. The rights must be harmoniously construed so that they are properly
promoted with the minimum of such implied and necessary restrictions. In the present
case, joining Government service has, implicit in it, if not explicitly so laid down, the
observance of a certain code of conduct necessary for the proper discharge of
functions as a Government servant. That code cannot be flouted in the name of other
freedoms. Of course, the courts will be vigilant to see that the code is not so widely
framed as to unreasonably restrict fundamental freedoms. But a reasonable code
designed to promote discipline and efficiency can be enforced by the Government
organisation in the sense that those who flout it can be subjected to disciplinary action.
22. That is why is in Balakothaiah's case (supra) this Court said that a person who
wanted to exercise his other freedoms under Article 19(1)(a) or (c) may do so, but
then he could not insist that he be retained in Government service if the Service Rules
for the proper functioning of the organisation were breached in the process, except to
the extent he was protected by Article 311. If freedom of speech of an individual
Government employee is circumscribed by the need for efficiency or discipline or
confidentiality in public interest, the individual exercises his freedom of speech in a
manner conflicting with these requirements at the risk of facing disciplinary action.
This does not mean that legitimate action discreetly and properly taken by a
Government servant with a sense of responsibility and at the proper level to remedy
any malfunction in the organisation would also be barred. However, such is not the
case here. Also, a person who legitimately seeks to exercise his rights under
Article 19 cannot be told that you are free to exercise the rights, but the consequences
will be so serious and so damaging, that you will not, in effect, be able to exercise your
freedoms. For example, a person may be told that you are free to express your opinion
against the State, but if you do so, you will be put behind bars. This is clearly
deprivation of freedom of speech. Therefore, what we have to consider is the
reasonableness of Service Rules which curtail certain kinds of activities amongst
Government servants in the interests of efficiency and discipline in order that they may
discharge their public duties as Government servants in a proper manner without
undermining the prestige or efficiency of the organisation. If the Rules are directly and
primarily meant for this purpose, they being in furtherance of Article 19(1)(g). can be
upheld although they may indirectly impinge upon some other limbs of Article 19 qua
an individual employee. As the above cases show, courts have made sure that such
impingement is minimal, and Rules are made in public interest and for proper
discharge of public duties. A proper balancing of interests of an individual as a citizen
and the right of the State to frame a code of conduct for its employees in the interest
of proper functioning of the State, is required.
23. A somewhat similar view seems to have been taken in other commonwealth
jurisdictions as well. The appellant drew our attention to the case of Marvin L.
Pickering v. Board of Education of Township High School (391) US 563. In that case a

public school teacher wrote a letter to the editor of a local newspaper criticising the
way in which the Board of Education and the superintendent of schools had handled
past proposals to raise new revenue for the schools. After the letter was published, the
board of education determined that its publication was detrimental to the efficient
operation and administration of the schools of the district. An action was taken against
the teacher dismissing him from service. The teacher contended that his remarks and
comments in the letter were protected by the constitutional right of free speech. The
United Sates Supreme Court said: "A state has interests as an employer in regulating
the speech of its employees that differ significantly from those that it possesses in
connection with regulation of the speech of the citizenry in general. Where a public
school teacher contends that his dismissal is violative of his constitutional right to free
speech, it is necessary to arrive at a balance between the interests of the teacher, as a
citizen, in commenting upon matters of public concern, and the interest of the state, as
an employer, in promoting the efficiency of the public services that it performs through
its employees." The Court after examining the contents of the letter held that the letter
had made no allegations against any individual official, nor had it made any personal
allegations against any member of the board of education. The letter was confined to
criticising only the policy. In the view of the Court, this would not, in any way, affect
the efficient functioning of the teacher within the organisation. The United States
Supreme Court, therefore, set aside the order of dismissal. Another commonwealth
country has recently considered a somewhat similar case. The Court of Appeal of
Antigua and Barbuda in the case Permanent Secretary, Ministry of Agriculture & Ors. v.
De Freitas, (1996) 1 CHRB 1 considered the case of a civil servant employed by the
Ministry of Agriculture who took part in demonstrations organised by an opposition
political party against political corruption. He carried a placard against his own
minister. Refuting the contention that his right to freedom of expression and assembly
under the Constitution had been violated, the court said that there must be an implied
presumption that imposes restriction upon public officers that are reasonably required
for the proper performance of their functions and which are reasonably justifiable in a
democratic society. A presumption of constitutionality of such provisions has to be
implied in the constitutional rights and their constitutionality has to be upheld.
24. In the present case, the appellant had made direct public attack on the head of his
organisation. He had also, in the letter to the Governor, made allegations against
various officers of the corporation with whom he had to work and his conduct was
clearly detrimental to the proper functioning of the organisation or its internal
discipline. Making public statements against the head of the organisation on a political
issue also amounted to lowering the prestige of the organisation in which he worked.
On a proper balancing, therefore, of individual freedom of the appellant and proper
functioning of the Government organisation which had employed him, this was a fit
case where the employer was entitled to take disciplinary action under Rule 22.
25. We, therefore, agree with the findings of the High Court and dismiss the appeal.
There will, however, be no order as to costs.

Equivalent
Citation: AIR1993SC171,
1993(1)BLJR431,
(1993)1GLR497,
JT1992(4)SC181, 1992(2)SCALE60, (1992)3SCC637, [1992]3SCR595, 1992(2)UJ481,
(1992)2UPLBEC1144
IN THE SUPREME COURT OF INDIA
Decided On: 22.07.1992
Appellants:Life Insurance Corporation of India and Union of India and another
Vs.
Respondent: Prof. Manubhai D. Shah and Cinemart Foundation
Hon'ble
A.M. Ahmadi and M.M. Punchhi, JJ.
Subject: Media and Communication

Judges/Coram:

Subject: Constitution
Catch Words
Mentioned IN
Acts/Rules/Orders:
Constitution of India - Article 14, Constitution of India - Article 21, Constitution of
India - Article 19(1), Constitution of India - Article 25, Constitution of India - Article
226; Life Insurance Corporation Act, 1956 - Section 6(1); Cinematograph Act, 1952 Section 5B
Cases
Referred:
Sakal Papers (P) Ltd. v. Union of India ; Odyssey Communications Pvt. Ltd. v.
Lokvidayan Sanghatana ; Ramesh v. The Union of India,

Case
Note:
Media and Communication - scope of freedom of speech and expression
guaranteed by Art. 19(1)(a) of the Constitution. - Film granted "U" certificate
- refused to be telecast on Doordarshan - the documentary film was narration
of the Bhopal gas tragedy - Held, freedom of speech and expression is a
natural right - includes freedom to hold opinions without interference and to
seek and receive and impart information and ideas through any media and
regardless of frontiers.
Citing

Reference:

Discussed
5
Dissented
3
Mentioned
4

ORDER
1. Special leave granted in SLP(C)No. 339 of 1991.

2. These two appeals though arising out of different circumstances and concerning
different parties, relate to the scope of our constitutional policy of freedom of speech
and expression guaranteed by Article 19(1)(a) of the Constitution. The importance of
the constitutional question prompted this Court to grant special leave to appeal under
Article 136 of the Constitution. We may properly begin the discussion of this judgment
by stating the factual background of the two cases in the light of which we are required
to examine the scope of the constitutional liberty of speech and expression.
3. Civil Appeal No. 1254/80 arises out of the decision of the Gujarat High Court in
Special Civil Application No. 2711 of 1979 decided by a Division Bench on 17th June,
1980. The respondent, the executive trustee of the Consumer Education & Research
center (CERC), Ahmedabad, after undertaking research into the working of the Life
Insurance Corporation (LIC) published on 10th July, 1978 a study paper titled "A fraud
on policy holders-a shocking story". This study paper portrayed the discriminatory
practice adopted by the LIC which adversely affected the interest of a large number of
policy holders. This study paper was widely circulated by the respondent. Mr. N.C.
Krishnan, a member of the LIC prepared a counter to the respondent's study paper
and published the same as an article in the "Hindu", a daily newspaper, challenging the
conclusions reached by the respondent in his study paper. The respondent prepared a
rejoinder which was published in the same newspaper. The LIC publishes a magazine
called the 'Yogakshema' for informing its members, staff and agents about its
activities. It is the contention of the LIC that this magazine is an in-house magazine
and is not put in the market for sale to the general public. Mr. Krishnan's article which
was in the nature of a counter to the respondent's study paper was published in this
magazine. The respondent thereupon requested the LIC to publish his rejoinder to the
said article in the said magazine but his request was spurned. The respondent
thereafter met the Chairman of the LIC and requested him to revise the decision and
to publish the article in the magazine but to no avail. Thereupon he filed the petition
contending that the refusal to publish his rejoinder in the magazine violated his
fundamental right under Articles 14 and 19(1)(a) of the Constitution. The High Court
came to the conclusion that the LIC's stand that the magazine was an in-house
magazine was untenable for two reasons, namely (1) it was available to anyone on
payment of subscription; and (2) it invited articles for publication therein from
members of the public. The High Court took the view that merely because the
magazine finds it circulation among officers, employees and agents of the Corporation,
it does not acquire the character of an in-house magazine since the same can be
purchased by any member of the public on payment of subscription and members of
the public are invited to contribute articles for publication in the said magazine. It
further held that assuming that the magazine was an in-house magazine. as contended
by the LIC, the Corporation cannot under the guise of publication of an in-house
magazine violate the fundamental right of the respondent. Taking note of the fact that
the LIC was a State within the meaning of Article 12 of the Constitution and the inhouse magazine was published with the aid of public funds and public money, the High
Court held that in the interest of democracy and free society the magazine should be
available to both, an admirer and a critic, for dissemination of information. In this view
of the matter the High Court concluded that the LIC had violated the respondent's
fundamental right under Article 19(1)(a) of the Constitution by refusing to publish his
rejoinder to Mr. Krishnan's counter to his study paper. It also concluded that the
refusal of the LIC was arbitrary and violative of Article 14 of the Constitution as well.
The High Court, therefore, directed the LIC to publish in the, immediate next issue of
Yogakshema the respondent's rejoinder to Mr. Krishnan's reply to his study paper of

10th July, 1978. This view of the Gujarat High Court is assailed by the LIC in the first
appeal.
4. In the other appeal the facts reveal that Shri Tapari Bose, Managing Trustee of the
respondent trust, had produced a documentary film on the Bhopal Gas Disaster titled
"Beyond Genocide". This film was awarded the Golden Lotus, being the best nonfeature film of 1987. The respondent contended that at the time of presentation of
awards the Central Minister for Information & Broadcasting had made a declaration
that the award winning short films will be telecast on Doordarshan. The respondent
submitted for telecast his film to Doordarshan but Doordarshan refused to telecast the
same on the ground : "the contents being outdated do not have relevance now for the
telecast". The respondent represented to the Minister for Information & Broadcasting,
but to no avail. He, therefore, filed the writ petition, being Civil Writ No. 212 of 1989,
challenging the refusal on the ground of violation of his fundamental right under
Article 19(1)(a) of the Constitution and for a mandamus to Doordarshan to telecast the
same. In the counter filed to the writ petition it was contended that although a
decision was taken to arrange a fixed fortnightly telecast of award winning
documentaries, no decision was taken to telecast all national award winning
documentaries. It was emphasised that the parameters applied for selection of a film
for national award were not the same as applied by the Film Selection Committee of
Doordarshan for selection of a film for telecast. Emphasis was laid by Doordarshan on
socially relevant films which were fair and balanced and the respondent's film which
was previewed by a duly constituted Screening Committee was not found to meet that
requirement for telecast on Doordarshan. The Ministry of Information & Broadcasting
had reconsidered the matter in the light of the respondent's representation but did not
see any reason to depart from the view taken by the Screening Committee. The
Screening Committee had founded its decision on the accepted norms for display of
the documentary films on Doordarshan and since the respondent's film did not satisfy
the norms for the reason that it lacked moderation and restraint in judging things and
expressing opinions, it was found not suitable for telecast. It also took into
consideration the fact that while most of the claims for compensation for the victims of
Bhopal Disaster were sub-judice and political parties were raising certain issues, it was
inexpedient and unwise to telecast the film. It was also feared that it would only end in
further vitiating the atmosphere and will serve no social purpose. The High Court came
to the conclusion that the respondent's right under Article 19(1)(a) of the Constitution
obligated Doordarshan to telecast the film since the guidelines or norms on which the
refusal was based were purely executive in character and not law within the meaning
of Article 19(2) of the Constitution. It, therefore, came to the conclusion that no
restriction could be placed on the fundamental right guaranteed by Article 19(1)(a) of
the Constitution save and except by law permitted by Article 19(2) and not by
executive or non-statutory guidelines on the basis of which Doordarshan had refused
to telecast the film. It look the view that these norms were for internal guidance and
cannot interfere with the fundamental right guaranteed by Article 19(1)(a) of the,
Constitution. It, therefore, directed Doordarshan to telecast the film "Beyond
Genocide" at a time and date convenient to it keeping in view the public interest and
on such terms and conditions as it would like to impose in accordance with law. It is
against this direction of the High Court that the second appeal is preferred.
5. Speech is God's gift to mankind. Through speech a human being conveys his
thoughts, sentiments and feelings to others. Freedom of speech and expression is thus
a natural right which a human being acquires on birth. It is, therefore, a basic human
right. "Everyone has the right to freedom of opinion and expression; the right includes

freedom to hold opinions without interference and to seek and receive and impart
information and ideas through any media and regardless of frontiers" proclaims the
Universal Declaration of Human Rights (1948). The People of India declared in the
Preamble of the Constitution which they gave unto themselves their resolve to secure
to all citizens liberty of thought and expression. This resolve is reflected in
Article 19(1)(a) which is one of the articles found in Part III of the Constitution which
enumerates the Fundamental Rights. That article reads as under:
19(1). All citizens shall have the right(a) to freedom of speech and expression;
Article 19(2) which has relevance may also be reproduced:
19(2). Nothing in Sub-clause (a) of Clause (1) shall affect the operation
of any existing law, or prevent the State from making any law, insofar as
such law imposes reasonable restrictions on the exercise of the right
conferred by the said Sub-clause in the interests of [the sovereignty arid
integrity of India,] the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence.
6. A constitutional provision is never static, it is ever evolving and ever changing and,
therefore, does not admit of a narrow, pedantic or syllogistic approach. If such an
approach had been adopted by the American Courts, the First Amendment(1791)-"Congress shall make no law abridging the freedom of speech, or of the press"would have been restricted n its application to the situation then obtaining and would
not have catered to the changed situation arising on account of the transformation of
the print media. It was the broad approach adopted by the court which enabled them
to chart out the contours of ever expanding notions-of press freedom. In Dennis v.
United States 341 U.S. 494, Justice Frankfurter observed:
...The language of the First Amendment is to be read not as barren words found in a
dictionary but as symbols of historic experience illuminated by the presuppositions of
those who employed them.
Adopting this approach in Joseph Burstyn Inc. v. Wilson 343 U.S. 495 the Court
rejected its earlier determination to the contrary in Mutual Film Corporation v.
Industrial Commission of Ohio 236 U.S. 230 and concluded that expression through
motion pictures is included within the protection of the First Amendment. The Court
thus expanded the reach of the First Amendment by placing a liberal construction on
the language of that provision. It will thus be seen that the American Supreme Court
has always placed a broad interpretation on the constitutional provisions for the
obvious reason that the Constitution has to serve the needs of an ever changing
society.
7. The same trend is discernible from the decisions of the Indian Courts also. It must
be appreciated that the Indian Constitution has separately enshrined the fundamental
right in Part III of the Constitution since they represent the basic values which the
People of India cherished when they gave unto themselves the Constitution for free
India. That was with a view to ensuring that their honour, dignity and self respect will
be protected in free India. They had learnt a bitter lesson from the behaviour of those

in authority during the colonial rule. They were, therefore, not prepared to leave
anything to chance. They, therefore, considered it of importance to protect specific
basic human rights by incorporating a Bill of Rights in the Constitution in the form of
Fundamental Rights. These fundamental rights were intended to serve generation after
generation. They had to be stated in broad terms leaving scope for expansion by
courts. Such an intention must be ascribed to the Constitution makers since they had
themselves made provisions in the Constitution to bring about a socio-economic
transformation. That being so, it is reasonable to infer that the Constitution makers
employed a broad phraseology while drafting the fundamental rights so that they may
be able to cater to the needs of a changing society. It, therefore, does not need any
elaborate argument to uphold the contention that constitutional provisions in general
and fundamental rights in particular must be broadly construed unless the context
otherwise requires. It seems well settled from the decisions referred to at the Bar that
constitutional provisions must receive a broad interpretation and the scope and ambit
of such provisions, in particular the fundamental rights, should not be cut down by too
astute or too restricted an approach. See Sakal Papers (P) Ltd. v. Union of India :
[1962]3SCR842 .
8. The words 'freedom of speech and expression' must, therefore, be broadly
construed to include the freedom to circulate one's views by words of mouth or in
writing or through audio-visual instrumentalities. It, therefore, includes the right to
propagate one's views through the print media or through any other communication
channel e.g. the radio and the television. Every citizen of this free country, therefore,
has the right to air his or her views through the printing and/or the electronic media
subject of course to permissible restrictions imposed under Article 19(2) of the
Constitution. The print media, the radio and the tiny screen play the role of public
educators, so vital to the growth of a healthy democracy. Freedom to air one's views is
the life line of any democratic institution and any attempt to stifle, suffocate or gag
this right would sound a death-knell to democracy and would help usher in autocracy
or dictatorship. It cannot be gainsaid that modern communication mediums advance
public interest by informing the public of the events and developments that have taken
place and thereby education the voters, a role considered significant for the vibrant
functioning of a democracy. Therefore, in any set up, more so in a democratic set up
like ours, dissemination of news and views for popular consumption is a must and any
attempt to deny the same must be frowned upon unless it falls within the mischief of
Article 19(2) of the Constitution. It follows that a citizen for propagation of his or her
ideas has a right to publish for circulation his views in periodicals, magazines and
journals or through the electronic media since it is well known that these
communication channels are great purveyors of news and views and make
considerable impact on the minds of the readers and viewers and are known to mould
public opinion on vital issues of national importance. Once it is conceded, and it cannot
indeed be disputed, that freedom of speech and expression includes freedom of
circulation and propagation of ideas, there can be no doubt that the right extends to
the citizen being permitted to use the media to answer the criticism leveled against the
view propagated by him. Every free citizen has an undoubted right to lay what
sentiments he pleases before the public; to forbid this, except to the extent permitted
by Article 19(2), would be an inroad on his freedom. This freedom must, however, be
exercised with circumspection and care must be taken not to trench on the rights of
other citizens or to jeopardise public interest. It is manifest from Article 19(2) that the
right conferred by Article 19(1)(a) is subject to imposition of reasonable restrictions in
the interest of, amongst others, public order, decency or morality or in relation to
defamation or incitement to an offence. It is, therefore, obvious that subject to

reasonable restrictions placed under Article 19(2) a citizen has a right to publish,
circulate and disseminate his views and any attempt to thwart or deny the same would
offend Article 19(1)(a).
9. We may now refer to the case law on the subject. In Romesh Tappar v. The State of
Madras [1950] SCR 495 this Court held that the freedom of speech and expression
includes freedom of propagation of ideas and this freedom is ensured by the freedom
of circulation. It pointed out that freedom of speech and expression are the foundation
of all democratic organisations and are essential for the proper functioning of the
processes of democracy. This view was reiterated in Sakal Papers Pvt. Ltd. (supra)
wherein this Court observed that the freedom of speech and expression guaranteed by
Article 19(1)(a) includes the freedom of the Press. For propagating his ideas a citizen
had the right to publish them, to disseminate them and to circulate them, either by
word of mouth or by writing. In Indian Express Newspapers (Bombay) Pvt. Ltd. and
Ors. etc. etc. v. Union of India and Ors. etc. etc. : [1986]159ITR856(SC) this Court
after pointing out that communication needs in a democratic society should be met by
the extension of specific rights e.g., the right to be informed, the right to inform, the
right to privacy, the right to participate in public communications, the right to
communicate, etc., proceeded to observe at page 316 as follows:
In today's free world freedom of Press is the heart of social and political intercourse. The
press has now assumed the role of the public educator making formal and non formal
education possible in large scale particularly in the developing world where television and
other kinds of modern communication are not still available for all sections of society.
The purpose of the press is to advance the public interest by publishing facts and
opinions without which a democratic electorate cannot make responsible judgments.
Newspaper being surveyors of news and views having a bearing on public administration
very often carry material which would not be palatable to Governments and other
authorities. The authors of the article which are published in the newspapers have to be
critical of the action of the Government in order to expose its weaknesses. Such articles
tend to become an irritant or ven a threat to power.
This Court pointed out that the constitutional guarantee of the freedom of speech and
expression is not so much for the benefit of the press as it is for the benefit of the
public. The people have a right to be informed of the developments that take place in a
democratic process and the press plays a vital role in disseminating this information.
Neither the Government nor any instrumentality of the Government or any public
sector undertaking run With the help of public funds can shy away from articles which
expose weaknesses in its functioning and which in given cases pose a threat to their
power by attempting to create obstacles in the information percolating to the members
of the community. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana
and Ors. : AIR1988SC1642 a public interest litigation was commenced under
Article 226 of the Constitution to restrain the authorities from telecasting the serial
'Honi Anhony' on the plea that it was likely to spread false and blind beliefs and
superstition amongst the members of the public. The High Court by an interim
injunction restrained the authorities from telecasting the serial which led the producer
thereof to approach this Court under Article 136 of the Constitution. This Court while
allowing the appeal held that the right of a citizen to exhibit films on the Doordarshan
subject to the conditions imposed by the Doordarshan being a part of the fundamental
right of freedom of expression could be curtailed only under circumstances set out in
Article 19(2) and in no other manner. The right to exhibit the film was similar to the
right of a citizen to publish his views through any other media such as newspapers,

magazines, advertisement hoardings, etc. More recently in Section Rangarajan v. P.

Jagjivan Ram : [1989]2SCR204 this Court was required to consider if the Madras High
Court was justified in revoking the 'U' certificate issued to a Tamil Film "Ore Oru
Gramathile" for public exhibition, the fundamental point urged before this Curt was
based on the freedom enshrined in Article 19(1)(a). This Court after pointing out the
difference in language between the U.S. First Amendment clause and Article 19(1)(a),
proceeded to observe in paragraph 10 as under:
Movie doubtless enjoys the guarantee under Article 19(1)(a) but there is one
significant difference between the movie and other modes of communication.
The movie cannot function in a free market place like the newspaper, magazine
or advertisement. Movie motivates thought and action and assures a high
degree of attention and retention. It makes its impact simultaneously arousing
the visual and aural senses. The focussing of an intense light on a screen with
the dramatizing of facts and opinion makes the ideas more effective, The
combination of act and speech, sight and sound in semi-darkness of the theatre
with elimination of all distracting ideas will have an impact in the minds of
spectators. In some cases, it will have a complete and immediate influence on,
and appeal for everyone who sees it. In view of the scientific improvements in
photography and production the present movie is a powerful means of
communication.
This Court emphasised that the freedom of expression means the right to
express one's opinion by words of mouth, writing, printing, picture or in any
other manner. It would thus include the freedom of communication and the right
to propagate or publish opinion. Concluding the discussion this Court observed
in paragraph 53 as under:
We end here as we began on this topic. Freedom of expression which is
legitimate and constitutionally protected, cannot be held to ransom by an
intolerant group of people. The fundamental freedom under Article 19(1)
(a) can be reasonably restricted only for the purposes mentioned in
Article 19(2) and the restriction must be justified on the anvil of necessity
and not the quicksand of convenience or expediency. Open criticism of
government policies and operations is not a ground for restricting
expression. We must practice tolerance to the views of others.
Intolerance is as much dangerous to democracy as to the person himself.
10. From the above resume of the case law it is evident that this Court has always
placed a broad interpretation on the value and content of Article 19(1)(a), making it
subject only to the restrictions permissible under Article 19(2). Efforts by intolerant
authorities to curb or suffocate this freedom have always been firmly repelled. More so
when public authorities have betrayed autocratic tendencies.
11. The question then is whether the respondent of the first appeal could as a matter
of right insist that the LIC print his rejoinder in their magazine. The LIC denied this
right on the ground that their magazine Was an in-house magazine circulated amongst
subscribers who were policy holders, officers, employees and agents of the
corporation. The High Court rejected this contention on two grounds in the main, viz.,
(i) it is available to anyone on payment of subscription and (ii) members of the public
are invited to contribute articles for publication. Even on the assumption that it is an
in-house magazine the High Court observed 'under the pretext and guise of publishing

a house magazine, the Corporation cannot violate the fundamental rights of the
petitioner if he has any'. According to the High Court a house magazine cannot claim
any privilege against the fundamental rights of a citizen. No serious exception can be
taken to this approach which commended to the High Court. In the first place it must
be remembered that it is not the case of the LIC that the respondent's study paper
contains any material which can be branded as offensive, in the sense that it would fall
within anyone of the restrictive clauses of Article 19(2). The study paper is a research
document containing statistical information to support the conclusions reached by the
author. The underlying idea is to point out that unduly high premiums are charged by
the LIC from those taking out life insurance policies thereby denying access to
insurance coverage to a vast majority of people who cannot afford to pay the high
premiums. The forwarding letter of 10th July, 1978 would show that copies of the
study paper were circulated to a few informed citizens with a request to disseminate
the contents thereof through articles, speeches, etc. Mr. N.C. Krishnan wrote a counter
'LIC and its policy holders' which appeared in the Hindu of 6th November, 1978. This
article begins by adverting to the study paper circulated by the respondent. The
respondent prepared a rejoinder 'Raw deal for Policy holders' which too was published
in the Hindu of 4th December, 1978. The LIC then printed and published the article of
Mr. Krishnan in its magazine Yogakshema (December 1978 issue). On the respondent
learning about the same, he requested that in fairness his rejoinder which was already
published in the Hindu should also be published in the said magazine to present a
complete picture to the reader. The LIC refused to accede to this request and hence
this litigation.
12. There is no dispute that the LIC is a State within the meaning of Article 12 of the
Constitution, vide Sukhdev Singh and Ors. v. Bhagatram Sardar Singh
:
(1975)ILLJ399SC . It is created under an Act, namely, the Life Insurance Corporation
Act, 1956, and is charged with the duty 'to carry on Life Insurance business, whether
in or outside India'. It is further charged with the duty to so exercise its powers under
the Act as 'to secure that life insurance business is developed to the best advantage of
the community' (Section 6(1)). It is, therefore, obvious that the LIC must function in
the best interest of the community. The community is, therefore, entitled to know
whether or not this requirement of the statute is being satisfied in the functioning of
the LIC. The respondent's effort in preparing the study paper was to bring to the notice
of the community that the LIC had strayed from its path by pointing out that its
premium rates were unduly high when they could be low if the LIC avoided wasteful
indulgences. The endeavour was to enlighten the community of the drawbacks and
shortcomings of the corporation and to pin-point the areas where improvement was
needed and was possible. With a view to stimulating a debate a study paper was
prepared and circulated to which Mr. Krishnan, a member of LIC, countered. Since Mr.
Krishnan had tried to demolish some of the points raised by the respondent in his
study paper, the respondent had published a rejoinder in the Hindu. However, the LIC
refused to publish it in their magazine financed from public funds. Such an attitude on
the part of the LIC can be described as both unfair and unreasonable; unfair because
fairness demanded that both view points were placed before the readers, however
limited be their number, to enable them to draw their own conclusions and
unreasonable because there was no logic or proper justification for refusing
publication. A monopolistic State instrumentality which survives on public funds cannot
act in an arbitrary manner on the specious plea that the magazine is an in-house one
and it is a matter of its exclusive privilege to print or refuse to print the rejoinder. It is
difficult to understand why the LIC should feel shy of printing the rejoinder if it has
nothing to fear. By denying information to the consumers as well as other subscribers

the LIC cannot be said to be acting in the best interest of the community. It is not the
case of the LIC that the rejoinder to Mr. Krishnan's article is in any manner prejudicial
to the members of the community or that it is based on imaginary or concocted
material. That being so on the fairness doctrine the LIC was under an obligation A to
publish the rejoinder since it had published Mr. Krishnan's counter to the study paper.
The respondent's fundamental right of speech and expression clearly entitled him to
insist that his views on the subject should reach those who read the magazine so that
they have a complete picture before them and not a one sided or distorted one.
13. For the above reasons we do not find any infirmity in the view taken by the High
Court on the LIC's obligation to print the rejoinder in its magazine. We must clarify
that we should not be understood as laying down an absolute proposition that merely
because the LIC is a State and is running a magazine with public funds it is under an
obligation to print any matter that any informed citizen may forward for publication.
The view that we are taking is in the peculiar facts of the case.
14. It was contended by the learned Counsel for the LIC that since the rejoinder of the
respondent is to Mr. Krishnan's article printed in December 1978, the same has
become stale by passage of time and has lost its relevance and hence this Court
should annual the High Court's directive to the LIC to print and publish the same in its
magazine. Counsel for the respondent submitted that the issue raised by the
respondent regarding high premium rates is still live as the situation has not improved
from what it was in 1978. It may be that the statistical information in the rejoinder
may be outdated but, contends the learned counsel, the issue that the LIC is charging
unduly high premium rates by refusing to prune its avoidable expenses, is still
relevant. He submits that if the court accedes to the submission of the learned Counsel
for the LIC it would result in placing a premium on the recalcitrant attitude of the LIC.
We see force in this submission. By refusing to print and publish the rejoinder the LIC
had violated the respondent's fundamental right. A wrong doer cannot be heard to say
that its persistent refusal to print and publish the article must yield the desired result,
namely to frustrate the respondent. The Court must be careful to see that it does not,
even unwittingly, aid the effort to defeat a party's right. Besides, if the respondent
thinks that the issue is live and relevant and desires its publication, we think we must
accept his assessment. However, in order that the reader knows and appreciates why
the rejoinder has appeared after such long years we direct that the LIC will, while
publishing the rejoinder as directed by the High Court, print an explanation and an
apology for the delay. With this modification, the LIC's appeal must fail.
15. That takes us to the appeal involving Doordarshan's refusal to telecast the
documentary "Beyond Genocide" based on the Bhopal Gas Disaster. There is no
dispute that this film won the Golden Lotus award as the best non-feature film of
1987. Yet, as the judgment of the High Court reveals, Doordarshan refused to telecast
it on the ground that "the contents being outdated do not have relevance now for the
telecast". It was emphasised that since the parameters applied for selection of a film
for national award were different from those applied by the Film Selection Committee
of Doordarshan when it comes to selecting a film for telecast, the mere fact that a film
has won a national award is not sufficient for all national award winning films are not
ipso facto fit for telecast on television. It was said that unless a film is socially relevant
and fair and balanced it is not cleared for telecast. The film in question did not satisfy
this broad norm since it was found lacking in moderation and restraint and hence it
was not cleared for telecast. Lastly it was said that since claims for compensation of
the victims of the tragedy were pending and political parties were raising various

issues, it was thought inexpedient to screen the film. It is, however, admitted in
paragraph 2 of the Special Leave Petition : "The documentary is an appraisal of what
exactly transpired in Bhopal on the date the gas leak occurred". Admittedly the said
film was granted a 'U' certificate by the Central Board of Film Certification under
Section 5A of the Cinematograph Act, 1952 (hereinafter called 'the Act').
16. In the High Court Doordarshan had by way of an additional affidavit contended
that before refusing to telecast the film, its selection committee had examined the film
with a view to finding out if it conformed to the norms laid down for selection of a
documentary film for telecast. These norms on which reliance was placed have been
extracted in the judgment of the High Court and read as under:
(i) Criticism of friendly countries;
(ii) Attack on religions and communities;
(iii) Anything obscene and defamatory;
(iv) Incitement of violence of anything against maintenance of law and order;
(v) Anything amounting to contempt of court;
(vi) Attack on a political party by name;
(vii) Hostile criticism of any State of center.
The High Court observes that these guidelines were purely departmental/executive
instructions or notings on the file for internal guidance which cannot curtail the
freedom conferred by Article 19(1)(a) and not being 'law' could not claim the
protection of Article 19(2) of the Constitution. The learned Additional Solicitor General
submitted that the High Court had completely misdirected itself in not appreciating
that these norms were fixed keeping in, mind the requirement of Section 5B of the Act
which Section was consistent with Article 19(2) extracted earlier. We may now examine
the scheme of the Act.
17. The Act was enacted to provide for the certification of cinematograph films for
exhibition and for regulating their exhibition. Section 3 of the Act empowers the
Central Government to constitute a Board consisting of a Chairman, five whole time
members and six, honorary members, three of whom must be persons engaged or
employed in the film industry, for the purpose of sanctioning films for public exhibition.
Section 3B empowers the Board so constituted to constitute by special or general order
an Examining Committee for the examination of any film or class of films and a
Revising Committee for reconsidering, if necessary, the recommendations of the
Examining Committee. Any person desiring to exhibit; any film has to make an
application as provided by Section 4 to the Board in the prescribed manner for a
certificate and the Board may after examination of the film sanction the film for
unrestricted public exhibition or sanction the film for public exhibition restricted to
adults or to direct the applicant to carry out such excisions and modifications in the
film as it thinks necessary before sanctioning it for unrestricted public exhibition or for
public exhibition restricted to adults or refuse to sanction the film for public exhibition.
Section 4A provides for the examination of films by the Examining Committee and in
the case of difference of opinions amongst the members of the Examining Committee

for further examination by the Revising Committee. Section 5A provides for

certification of films. If after examination the Board considers that the film is suitable
for unrestricted public exhibition or that although not: suitable for such exhibition, it is
suitable for public exhibition restricted to adults, it is required to issue a 'U' certificate
in the case of the former and an 'A' certificate in the case of the latter.
Section 5B provides for laying down principles for guidance in the matter of
certification of films. This section to the extent relevant for our purpose reads as
under:
5B Principles for guidance in certifying films-(1) A film shall not be certified for public
exhibition if, in the opinion of the authority competent to grant the certificate, the film or
any part of it is against the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or
morality, or involves defamation or contempt of court or is likely to incite the commission
of any offence.
(2) Subject to the provisions contained in Sub-section (1)...the Central
Government may issue such directions as it may think fit setting out the
principles which shall guide the authority competent to grant certificates
under this Act in sanctioning films for public exhibition....
Section 5C provides
for
the
Constitution
of
appellate
tribunals,
whereas
Section 5D provides for appeals against the Board's decision refusing to grant the
certificate or granting only 'A' certificate or directing the applicant to carry out any
excisions or modifications. In addition thereto revisional powers have been conferred
on the Central Government to call for the record of any proceeding in relation to any
film at any stage where it is not made the subject matter of appeal, to enquire into the
matter and make such order in relation thereto as it thinks fit and where necessary
give a direction that the exhibition of the film should be suspended for a period not
exceeding two months. Sub-section (5) of Section 6 lays down that the Central
Government may, if satisfied in relation to any film in respect of which an order had
been made by an appellate tribunal under section 5B that it is necessary so to do in
the interests of (i) the sovereignty and integrity of India or (ii) the security of the State
or (iii) friendly relations with foreign States or (iv) public order or decency or morality,
make such enquiry into the matter as it deems necessary and pass such order in
relation thereto as it thinks fit. Thereupon the Board must dispose of the matter in
conformity with such order. Section 7 lays down the penalties for contravention of the
requirements of Part II of the Act. Section 8 confers power to make rules and
Section 9empowers the Central Government to exempt the exhibition or export of any
film or class of films from any of the provisions of the said part or of any rules made
thereunder subject to such conditions and restrictions, if any, as it may impose. Part
III of the Act deals with the regulation of exhibitions by means of Cinematograph with
which we are not concerned. This in brief is the scheme of the statute.
18. In exercise of power conferred by Sub-section (2) of Section 5D of the Act the
Central Government issued a notification dated 7th January, 1978 laying down the
principles which should guide the authorities in sanctioning the films for public
exhibition. These guidelines came to be enlarged by a subsequent notification dated
11th August, 1989. The guidelines laid down by these two notifications require the
Board of Film Certification to ensure that:
(i) Anti-social activities such as violence are not glorified or justified;

(ii) The modus-operandi of criminals or other visuals or words likely to incite the
commission of any offence are not depicted;
(iia) Scenes showing involvement of children in violence, either as victims
or as perpetrators, or showing child abuse or abuse of physically and
mentally handicapped persons are not presented in a manner which is
needlessly prolonged or exploitative in nature;
(iii) Pointless or avoidable scenes of violence, cruelty and horror are not shown;
(iiia) Scenes which have the effect of justifying or glorifying drinking and
drug addiction are not shown;
(iv) Human sensibilities are not offended by vulgarity, obscenity and depravity;
(iva) Visuals or words depicting women in any ignoble servility to man or
glorifying such servility as a praiseworthy quality in women are not
presented;
(ivb) Scenes involving sexual violence against women like attempt to
rape, gangrape, murder or any other form of molestation or scenes of a
similar nature shall be avoided and if for any reason such things are
found to be inevitable for the sequence of a theme, they shall be properly
scrutinised so as to ensure that they do not create any adverse
impression on viewers and the duration of the scenes shall be reduced to
the shortest span;
(v) Visuals or words contemptuous of racial, religious or other groups are not
presented;
(va) Visuals or words which promote communal obscurantist, antiscientific and anti-national attitudes are not presented;
(vi) The sovereignty ad integrity of India is not called in question;
(vii) The security of the State is not jeopardised or endangered;
(viii) Friendly relations with foreign States are not strained;
(ix) Public order is not endangered;
(x) Visuals or words involving defamation or contempt of court are not
presented.
In following these guidelines or principles the Board of Film Certification has been
cautioned to ensure that the film is judged in its entirety from the point of view of its
overall impact and is judged in the light of contemporary standards of the country and
the people to which the film relates. Pursuant to the issuance of these guidelines the
Central Government issued a further notification dated 16th October, 1984 in exercise
of power under Section 9 of the Act exempting all Doordarshan programmes from the
provisions relating to certification of films in Part II of the Act and the Rules made

thereunder subject to the condition that while clearing programmes for telecast, the
Director General, Doordarshan or the concerned Director, Doordarshan Kendra shall
keep in view the film certification guidelines issued by the Central Government to the
Board of Film Certification under Sub-section (2) of Section 5B of the Act.
19. It may be stated at the outset that the refusal to telecast was not based on the
ground that the list of award winning films was long and on the basis of inter-se
priority amongst such films and the time allocated for telecasting such films, it was not
possible to telecast the film. The grounds for refusal that can be culled out from the
pleadings were (i) the film is out-dated (ii) it has lost its relevance (iii) it lacks
moderation and restraint (iv) it is not fair and balanced (v) political parties have been
raising various issues concerning the tragedy and (vi) claims for compensation by
victims are sub-judice. In addition to these grounds which can be culled out from the
judgment of the High Court it is found from the affidavit filed in the present
proceedings that the film was not found fit for telecast as it was likely to create
commotion to the already charged atmosphere and because the film criticised the
action of the State Government, which was not permissible under the guidelines. The
last two grounds were not before the High Court giving the impression that
Doordarshan is shifting its stand. We will however not brush them aside on such
technical considerations. We may however point out; that Doordarshan has not placed
any material suggesting why it thinks that the film does not conform to the above
stated norms.
20. Mr. Tulsi, the learned Counsel for Doordarshan, submitted that Sub-section (2) of
Section 5B empowers the Central Government to issue directions setting out the
principles which shall guide the authority competent to grant certificates under the Act
in sanctioning films for public exhibition and since the exemption granted to
Doordarshan under Section 9 of the Act from the provisions relating to certification of
films in Part II of the Act and Rules made thereunder by notification dated 16th
October, 1984 is subject to the condition that while clearing programmes for telecast
Doordarshan shall keep in view the film certification guidelines issued by the Central
Government under Section 5B of the Act, the guidelines clearly have statutory flavour
and would, therefore, fall within the protective umbrella of Article 19(2) and the High
Court was wrong in brushing them aside as mere departmental/executive directions or
notings on a file not having the force of law. We will so assume for the purposes of this
appeal. However, once it is recognised that a film-maker has a fundamental right
under Article 19(1)(a) to exhibit his film, the party which claims that it was entitled to
refuse enforcement of this right by virtue of law made under Article 19(2), the onus
lies on that party to show that the film did not conform to the requirements of that
law, in the present case the guidelines relied upon. Two questions, therefore, arise (i)
whether the film-maker had a fundamental right to have his film telecast on
Doordarshan and (ii) if yes, whether Doordarshan has successfully shown that it was
entitled to refuse telecast as the guidelines were breached?
21. In the United Stales prior restraint is generally regarded to be at serious odds with
the First Amendment and carries a heavy presumption against its Constitutionality and
the authorities imposing the same have to discharge a heavy burden on demonstrating
its justification (See New York Times Company v. the United States 403 U.S. 713.
Traditionally prior restraints, regardless of their form, are frowned upon as threats to
freedom of expression since they contain within themselves forces which if released
have the potential for imposing arbitrary and at times irrational decisions. Since the
function of any Board of Film Censors is to censor it, it immediately conflicts with the

Article 19(1)(a) and has to be justified as falling within permissible restraint under
Article 19(2) of the Constitution. A similar question came up before this Court in K.A.
Abbas v. The Union of India : [1971]2SCR446 wherein Chief Justice Hidayatullah
exhaustively dealt with the question of prior restraint in the context of the provisions
of the Constitution and the Act. The learned Chief Justice after setting out the various
provisions to which we have already adverted posed the question : 'How far can these
restrictions go and how are these to be imposed'? The documentary film 'A tale of four
cities' made by K.A. Abbas portrayed the contrast between the luxurious life of the rich
and the squalor and poverty of the poor in the four principal cities of the country and
included therein shots from the red light district of Bombay showing scantily dressed
women soliciting customers by standing near the doors and windows. The Board of
Film Censors granted 'A' certificate to the film and refused the 'U' certificate sought by
Abbas. This was on the ground that the film dealt with relations between sexes in such
a manner as to depict immoral traffic in women and because the film contained
incidents unsuitable for young persons. Abbas challenged the Board's decision on the
ground (i) that pre-censorship cannot be tolerated as it was in violation of the freedom
of speech and expression and (ii) even if it is considered legitimate it must be
exercised on well-defined principles leaving no room for arbitrary decisions. This Court
held that censorship in India had full justification in the field of exhibition of films since
it was in the interest of society and if the legitimate power is abused it can be struck
down. While dealing with the grounds on which the 'U' certificate was refused, the
learned Chief Justice observed:
The task of the censor is extremely delicate and his duties cannot be the subject of an
exhaustive set of commands established by prior ratiocination. But direction is necessary
to him so that he does not sweep within the terms of the directions vast areas of
thought, speech and expression of artistic quality and social purpose and interest. Our
standards must be so framed that we are not reduced to a level where the protection of
the least capable and the most depraved amongst us determines what the morally
healthy cannot view or read. The standards that we set for our censors must make a
substantial allowance in favour of freedom thus leaving a vast area for creative art to
interpret life and society with some of its foibles along with what is good. We must not
look upon such human relationships as banned in toto and for ever from human thought
and must give scope for talent to put them before society. The requirements of art and
literature include within themselves a comprehensive view of social life and not only in
its ideal form and the line is to be drawn where the average man moral man begins to
feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of
art or genius or social value. If the depraved begins to see in these things more than
what an average person would, in much the same way, as it is wrongly said, a
Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of
things ideas having redeeming social or artistic value must also have importance and
protection for their growth.
In Ramesh v. The Union of India : [1988]2SCR1011 a petition was filed to restrain the
screening of the serial 'Tamas' on the ground that it violated Articles 21 and 25 of the
Constitution and Section 5B of the Act. Based on the novel of Bhisma Sahni this serial
depicted the events that took place in Lahore immediately before the partition of the
country. Two Judges of the Bombay High Court saw the serial and rejected the
contention that it propagates the cult of violence. This Court after referring to the
observations of Hidayatullah, C.J. in K.A. Abbas proceeded to state as under:

It is no doubt true that the motion picture is a powerful instrument with a much stronger
impact on the visual and aural sense of the spectators than any other medium of
communication; likewise, it is also true that the television, the range of which has vastly
developed in our country in the past few years, now reaches out to the remotest corners
of the country catering to the not so sophisticated, literary or educated masses of people
living in distant villages. But the argument overlooks that the potency of the motion
picture is as much for good as for evil. If some scenes of violence, some nuances of
expression or some events in the film can stir up certain feelings in the spectator, an
equally deep strong, lasting and beneficial impression can be conveyed by scenes
revealing the machinations of selfish interests, scenes depicting mutual respect and
tolerance, scenes showing comradship, help and kindness which transcend the barriers of
religion. Unfortunately, modern developments both in the field of cinema as well as in
the field of national and international politics have rendered it inevitable for people to
face realities of internecine conflicts, inter alia, in the name of religion. Even
contemporary news bulletins very often carry scenes of pitched battle or violence. What
is necessary sometimes it to penetrate behind the scenes and analyse the causes of such
conflicts. The attempt of the author in this film is to draw a lesson from our country's
past history, expose the motives of persons who operate behind the scenes to generate
and foment conflicts and to emphasise the desire of persons to live in amity and the
need for them to rise above religious barriers and treat one another with kindness,
sympathy and affection. It is possible only for a motion picture to convey such a
message in depth and if it is able to do this, it will be an achievement of great social
value.
This Court upheld the finding of the Bombay High Court that the serial viewed in its
entirety is capable of creating a lasting impression of this message of peace and coexistence and there is no fear of the people being obsessed, overwhelmed or carried
away by. scenes of violence or fanaticism shown in the film.
22. As already pointed out earlier this Court in Section Rangarajan's case (supra)
emphasised that the freedom conferred on a citizen by Article 19(1)(a) includes the
freedom to communicate one's ideas or thoughts through a newspaper, a magazine or
a movie. Although movie enjoys that freedom it must be remembered that movie is a
powerful mode of communication and has the capacity to make a profound impact on
the minds of the viewers and it is, therefore, essential to ensure that the message it
conveys is not harmful to the society or even a section of the, society. Censorship by
prior restraint, therefore seems justified for the protection of the society from the illeffects that a motion picture may produce if unrestricted exhibition is allowed.
Censorship is thus permitted to protect social interests enumerated in
Article 19(2) and Section 58 of the Act. But such censorship must be reasonable and
must answer the test of Article 14 of the Constitution. In this decision the fundamental
difference between the U.S. First Amendment and the freedom conferred by 19(1)(a),
subject to Article 19(2) has been highlighted and we need not dwell on the same.
23. Every right has a corresponding duty or obligation and so has the fundamental
right of speech and expression. The freedom conferred by Article 19(1)(a) is,
therefore, not absolute as perhaps in the case of the U.S. First Amendment; it carries
with it certain responsibilities towards fellow citizens and society at large. A citizen who
exercises this right must remain conscious that his fellow citizen too has a similar
right. Therefore, the right must be so exercised as not to come in direct conflict with
the right of another citizen. It must, therefore, be so exercised as not to jeopardise the
right of another or clash with the paramount interest of the State or the community at

large. In India, therefore, our Constitution recognises the need to place reasonable
restrictions on grounds specified by Article19(2) and Section 5B of the Act on the
exercise of the right of speech and expression. It is for this reason that this Court has
recognised the need for prior restraint and our laws have assigned a specific role to the
censors as such is the need in a rapidly changing societal structure. But since
permissible restrictions, albeit reasonable, are all the same restrictions on the exercise
of the fundamental right under Article 19(1)(a), such restrictions are bound to be
viewed as anathema, in that, they are in the nature of curbs or limitations on the
exercise of the right and are, therefore, bound to be viewed with suspicion, thereby
throwing a heavy burden on the authorities that seek to impose them. The burden
would, therefore, heavily lie on the authorities that seek to impose them to show that
the restrictions are reasonable and permissible in law.
24. From the above discussion it follows that unquestionably the respondent had a
right to convey his perception of the gas disaster in Bhopal through the documentary
film prepared by him. This film not only won the Golden Lotus award but was also
granted the 'U' certificate by the censOrs. Even according to the petitioners 'the
documentary is an appraisal of what exactly transpired in Bhopal on the date the gas
leak occurred'. The petitioners, therefore, concede that the film faithfully brings out
the events that took place at Bhopal on that fateful night Therefore, the respondent
cannot be accused of having distorted the events subsequent to the disaster. How then
can it be alleged that it is not fair and balanced or lacks in moderation and restraint? It
is nowhere stated which part of the film lacks moderation and/or restraint nor is it
shown how the film can be described as not fair and balanced. Merely because it is
critical of the State Government, perhaps because of its incapacity to cope with
unprecedented situation, is no reason to deny selection and publication of the film. So
also pendency of claims for compensation does not render the matter sub-judice so as
to shut out the entire film from the community. In fact the community was keen to
know what actually had happened, what is happening, what remedial measures the
State authorities are taking and what are the likely consequences of the gas leak. To
bring out the inadequacy of the State effort or the indifference of the officers, etc.,
cannot amount to an attack on any political party if the criticism is genuine and
objective and made in good faith. If the norm for appraisal was the same as applied by
the censors while granting the 'U' certificate, it is difficult to understand how
Doordarshan could refuse to exhibit it. It is not that it was not sent for being telecast,
soon after the disaster that one could say that it is outdated or has lost relevance. It is
even today of relevance and the press has been writing, about it periodically. The
learned Additional Solicitor General was not able to point out how it could be said that
the film was not consistent with the accepted norms set out earlier. Doordarshan being
a State controlled agency funded by public funds could not have denied access to the
screen to the respondent except on valid grounds. We, therefore, see no reason to
interfere with the High Court order.
25. In the result both the appeals fail and are dismissed with costs.

Equivalent
Citation: AIR1988SC1642,
1988(90)BOMLR278,
JT1988(3)SC66,
1988PLJR75, 1988(2)SCALE34, (1988)3SCC410, [1988]Supp1SCR486, 1988(2)UJ325

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1523 of 1988
Decided On: 19.07.1988
Appellants: Odyssey Communications Pvt. Ltd.
Vs.
Respondent: Lokvidayan Sanghatana and Ors.
Hon'ble
E.S. Venkataramiah and N.D. Ojha, JJ.

Judges/Coram:

Counsels:
For Appellant/Petitioner/Plaintiff: K.K. Venugopal, A. N. Haksar, S. Vazifdar, Raian
Karanjawala, Manik Karanjawala and Hardeep S. Anand, Advs
For
Respondents/Defendant: B.
Datta,
Additional
Parmeshwaran, S.C. Birla and A. Subhashini, Advs.

Solicitor

General, P.

Subject: Media and Communication

Subject: Constitution
Catch Words
Mentioned IN
Relevant
Section:
Constitution of India - Article 19; Constitution of India - Article 19(1), Constitution of
India - Article 19(2)
Acts/Rules/Orders:
Constitution of India - Article 19, Constitution of India - Article 19(1), Constitution of
India - Article 19(2), Constitution of India - Article 136
Prior
History:
From the Judgment and Order dated 13.4.1988 of the Bombay High Court in W.P. No.
479 of 1988.
Case
Note:
Media and Communication - PIL-to stop the telecast of the serial Honi
Anhoni which was not in public interest - injunction issued by the High
Court- Freedom of expression is a preferred right which is always very
zealously guarded by this Court - objection to the exhibition of the film had
been raised on the basis that it was likely to spread false or blind beliefs
amongst the members of the public-no prima-facie evidence to show that
grave prejudice was being done to the public - The High Court overlooked the
fact that an order of interim injunction would infringe a fundamental right of
the producer of the serial - appeal allowed.
Industry: Telecom
JUDGMENT
1. This appeal by special leave is filed against an interim order of injunction issued by
the High Court of Bombay, Aurangabad Bench on 13th April, 1988 directing the three
respondents; (1) Union of India, (2) Ministry of Information and Broadcasting,
Parliament House, New Delhi and (3) State of Maharashtra, not to telecast and show
episodes 12 and 13 of a serial entitled 'Honi-Anhoni' pending disposal of Writ Petition
No. 479 of 1988 filed by Respondent No. 1, Lokvidayan Sanghatana, a registered social
organisation of Pune having its branch at Aurangabad and Respondent No. 2 Mahila
Sangharsha Samiti, Aurangabad represented by one of its members Smt. Anagna Patil.
The writ petition was in the nature of a public interest litigation. The prayer in the writ

petition was that the respondents should be directed not to telecast the serial as such
telecasting was not in the public interest.
2. The serial 'Honi-Anhoni' was being telecast by the Doordarshan, which was run by
the Union of India, on every Thursday between 9 p.m. and 9.30 p.m.. The 12th
episode of the said serial was to be telecast on 14th April, 1988 and the 13th episode
was to be telecast on 21st April, 1988. By virtue of the interim order passed on 13th
April, 1988 episode No. 12 could not be telecast on 14th April, 1988. Aggrieved by the
interim order passed by the High Court the appellant, Odyssey Communication Pvt.
Ltd., which was the producer of the serial 'Honi-Anhoni' filed the special leave petition
before this Court under Article 136 of the Constitution of India out of which this appeal
arises. The said petition came up before this Court for consideration on April 21, 1988.
After hearing the learned Counsel for the appellant this Court granted special leave to
prefer an appeal against the order passed by the High Court and also stayed the
operation of the interim order dated 13th April, 1988 passed by the High Court until
further orders and permitted the Doordarshan to telecast the serial in question. In
view of the above order the 12th episode of the serial was telecast on the 21st of April,
1988. The appeal was heard on the 28th of April, 1988 and this Court reserved
judgment on the appeal. At the end of the hearing of the appeal on 28th April, 1988
the Court expressed that it would set aside the order passed by the High Court against
which the appeal had been filed and would give reasons in the course of its judgment.
Since the order of stay passed by the Court was allowed to remain in force the 13th
episode, which was the last episode of the serial was telecast on the 28th April, 1988.
3. The grounds mentioned in the writ petition in support of the prayer made in it were
that in each and every episode telecast in the serial an obscure and mysterious
atmosphere was being created due to the way of the presentation of the episodes and
that it had created fear in the minds of the common viewers and especially of children
as the serial had the effect of confirming blinds faiths, superstitious beliefs in stories of
ghosts, rebirth, precognition etc. and of spreading the unscientific way of thinking and
blind beliefs. It was further contended that it was the duty of the State not to
encourage blind beliefs amongst the public by telecasting such episodes. It was on the
basis of these grounds the High Court was requested to grant the interim order of
injunction. The appellant was the producer of the said serial, yet the appellant was not
made a party to the writ petition. But on its application the appellant was impleaded as
a party on 12.4.1988. On 13.4.1988 the High Court passed the impugned order of
temporary injunction. The appellant rushed to this Court immediately thereafter with
the above said special leave petition. The appellant has stated before us that the said
serial and in particular episodes 12 and 13 did not emphasise superstitious beliefs but
on the contrary criticised and condemned superstition and blind faith as was ex facie
apparent from the scripts of episodes 12 and 13 produced before this Court. It is
stated that at the end of both the episodes a doctor and a professor gave a scientific
explanation for the unusual occurrences portrayed therein and considered by people as
supernatural phenomena. It is alleged that in the 13th episode after a scientific
explanation of what had taken place the viewers were told as follows:
All those who without thinking spread blind faith ought to feel ashamed of themselves.
We request all of you that whenever any unusual occurrences takes place or a
seemingly improbable event occurs, before believing in it, to reflect as to whether
there is a scientific reason for it or is it purely psychological by nature. If all of us
exercise such caution we believe that the malady of blind faith will soon be eradicated
by our society.

4. The appellant further pleaded that the High Court was in error in issuing the order
of injunction without giving a reasonable opportunity to it (the producer), which was
likely to be affected by the order, to explain that the writ petitioners had no right to
move the Court in the circumstances of the case.
5. It can no longer be disputed that the right of a citizen to exhibit films on the
Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is
a part of the fundamental right of freedom of expression guaranteed under
Article 19(1)(a) of the Constitution of India which can be curtailed only under
circumstances which are set out sin Clause (2) of Article 19 of the Constitution of
India. The right is similar to the right of a citizen to publish his views through any
other media such as newspapers, magazines, advertisement hoardings etc. subject to
the terms and conditions of the owners of the media. We hasten to add that what we
have observed here does not mean that a citizen has a fundamental right to establish
a private broadcasting station, or television center. On this question we reserve our
opinion. It has to be decided in an appropriate case. The relevant part of Article 19 of
the Constitution reads thus:
19. Protection of certain rights regarding freedom of speech, etc.-(1) All citizens shall
have the right(a) to freedom of speech and expression;
(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause in
the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.
...
6. Freedom of expression is a preferred right which is always very zealously guarded
by this Court.
7. It was not the case of the petitioners in the Writ Petition that the exhibition of serial
'Honi-Anhoni' was in contravention of any specific law or direction issued by the
Government. They had not alleged that the Doordarshan had shown any undue favour
to the appellant and the sponsoring institutions resulting in any financial loss to the
public exchequer. The objection to the exhibition of the film had, however, been raised
by them on the basis that it was likely to spread false or blind beliefs amongst the
members of the public. They had not asserted any right conferred on them by any
statute or acquired by them under a contract which entitled them to secure an order of
temporary injunction against which this appeal is filed. The appellant had denied that
the exhibition of the serial was likely to affect prejudicially the well-being of the
people. The Union of India and the Doordarshan have pleaded that the serial was being
telecast after following the prescribed procedure and taking necessary precaution. In
such a situation, the High Court should not have immediately proceeded to pass the
interim order of injunction. It was no doubt true that the 12th episode was to be
telecast on 14th April, 1988 and the 13th episode was to be telecast on 21st April,
1988. If the petitioners in the writ petition had felt, as they had alleged in the course
of the petition, that all the episodes in the serial were offensive they could have

approached the High Court as early as possible within the first two or three weeks
after the commencement of the exhibition of the serial. But they waited till the
exhibition of the 11th episode of the serial was over and filed the petition only in the
second week of April, 1988. They had not produced any material apart from their own
statements to show that the exhibition of the serial was prima facie prejudicial to the
community. The High Court overlooked that the issue of an order of interim injunction
in this case would infringe a fundamental right of the producer of the serial. In the
absence of any prima facie evidence of grave prejudice that was likely to be caused to
the public generally by the exhibition of the serial it was not just and proper to issue
an order of temporary injunction. We are not satisfied that the exhibition of the serial
in question was likely to endanger public morality. In the circumstances of the case the
balance of convenience lay in favour of the rejection of the prayer for interim
injunction. What we have stated here is sufficient to dispose of this appeal. The other
questions of law which may arise in a case of this nature will have to be dealt with in
an appropriate case. We express no opinion on those questions in this case. We are,
however, of the opinion that the High Court was in error in the present case in issuing
the interim order of injunction against which this appeal is filed. We, therefore, allow
this appeal and set aside the interim order of injunction passed by the High Court on
the 13th of April, 1988. There is, however, no order as to costs.

Equivalent

Citation: AIR1992SC604,

1992CriLJ527,

JT1990(4)SC650,

1990(2)SCALE1066, 1992Supp(1)SCC335, [1990]Supp3SCR259

IN THE SUPREME COURT OF INDIA
Civil Appeal No. 5412 of 1990
Decided On: 21.11.1990
Appellants:State of Haryana and others
Vs.
Respondent: Ch. Bhajan Lal and others
Hon'ble
S.R. Pandian and K. Jayachandra Reddy, JJ.

Judges/Coram:

Counsels:
For Appellant/Petitioner/Plaintiff: N.S. Hedge, Additional Solicitor General, Arun Jaitley
Additional Solicitor General, R.B. Datar, Hemant Sharma and B.K. Prasad, Advs
For
Respondents/Defendant: K.
Karim and Indu Malhotra, Advs.

Parasaran, P.

Chidambram, R.K.

Garg, Ayasha

Subject: Criminal
Catch Words
Mentioned IN
Relevant
Section:
Indian Penal Code, 1860 - Section 161; Indian Penal Code, 1860 - Section 165
Acts/Rules/Orders:
Constitution of India - Article 226, Constitution of India - Article 227; Prevention of
Corruption Act, 1947 - Section 5(1); Indian Penal Code 1860, (IPC) - Section
5(1), Indian Penal Code 1860, (IPC) - Section 161, Indian Penal Code 1860, (IPC) Section 165, Indian Penal Code 1860, (IPC) - Section 307
Cases
Referred:
S.N. Sharma v. Bipen Kumar Tiwari ; Emperor v. Khwaja Nazir Ahmad ; Abhinandan v.
Dinesh ; Pakala Narayanaswami v. Emperor ; Scaffide v. State, 254 NW 651; Stuart v.
Farmers' Bank of Cuba City, 117 NW 820; Cook v. Singer Sewing Mach. Co., 32 P 2d
430, 431, 138 Cal App 418; Emperor v. Vimlabai Deshpande ; United States v.
Cortez (1981) 66 Law Ed 2d (United States Supreme Court Reports); Dallison v.
Caffery (1954) 2 All ER 610;State of Gujarat v. Mohanlal J. Porwal ; Pukhraj v. D.R.
Kohli; R.P. Kapur v. State of Punjab ; Nandini Satpathy v. P.L. Dani ; Prabhu Dayal
Deorath v. The District Magistrate, Kamrup ; Sirajuddin v. State of Madras ; State of
Uttar Pradesh v. Bhagwant Kishore Joshi ; Hazari Lal Gupta v. Rameshwar
Prasad ; Jehan Singh v. Delhi Administration ; Madhu Limaye v. State of
Maharashtra ; Kurukshetra University v. State of Haryana ; Municipal Corporation of
Delhi v. Purshotam Dass Jhunjunwala ; Smt. Nagawwa v. Veeranna Shivalingappa
Konjalgi ; Pratibha Rani v. Suraj KumarMadhavrao Jiwaji Rao Scindia v. Sambhajirao
Chandrojirao Angre Talab Haji Hussain v. Madhukar Purshottam Mondekar L.U.
Jadhav v. Shankarrao Apasaheb Pawar J.P. Sharma v. Vinod Kumar Jain and
others; U.P. v. V.R.K. Srivastava ; S. Pratap Singh v. State of Punjab ; State of Haryana
v. Rajendra Sareen ; Express Newspapers Pvt. Ltd. v. Union of India ; Sheonandan
Paswan v. State of Bihar; The King v. Minister of Health (1929) 1 K. B. 619; Rex v.
Brighton Corporation ex parte Shoosmith, (1907) 96 LT 762; Earl Fitzwilliam's
Wentworth Estate Co. Ltd. v. Minister of Town and Country Planning (1951) 2 K. B.
284; P.V. Jagannath Rao v. State of Orissa ; H.N. Rishbud and Inder Singh v. The State
of Delhi State of Madhya Pradesh v. Mubarak Ali ; A.C. Sharma v. Delhi
Administration ; A.R. Antulay v. R.S. Nayak ; Major B.G. Barsay v. State of
Bombay ; Munna Lal v. State of Uttar Pradesh ; S.N. Bose v. State of Bihar
; Muni
Lal v. Delhi Administration ;Khandu Sonu Dhohi v. State of Maharashtra ; Krishna
Ballabh Sahay v. Commissioner of Enquiry ; State of Punjab v. Gurdial Singh

Reference
Alert:
On the issue of inherent jurisdiction of the Court under Section 482 of Code of Criminal
Procedure, 1973 -This case may be considered as a good law on the present issue.
Authorities
Referred:
Webster's Third International Dictionary; Corpus Juris Secondum Vol. 83; words and
Phrases Permanent Edition 40A;
Prior
History:
From the Judgment and Order dated September 8, 1988 of the Punjab and Haryana
High Court in C.W.P. No. 9172 of 1987-Citing

Reference:

Discussed
29
Mentioned
24

Case

Note:

Criminal - investigation - Sections 161 and 165 of Indian Penal Code, 1860
and Section 5 (1) of Prevention of Corruption Act, 1947 - investigation
ordered against respondent for offences under Sections 161 and 165 and
under Act of 1947 by appellant - High Court cancelled FIR terming it affected
by political considerations granting costs in respondent's favour - appeal propositions laid by High Court unwarranted - incoming Government cannot
put its seal of approval to all commissions and omissions of outgoing
Government - Supreme Court quashed entire investigation as investigation
was not entrusted to proper legal authority - cancellation of FIR and granting
of costs in respondent's favour unjustified and bad in law - Court set aside
judgment of High Court.
ORDER
S.R. Pandian, J.
1. Leave granted.
The king is under no man, but under God and the law"-was the reply of the Chief Justice
of England, Sir Edward Coke when James-I once declared "Then I am to be under the
law. It is treason to affirm it"-so wrote Henry Bracton who was a Judge of the King's
Bench.

2. The words of Bracton in his treatise in Latin "good Rex non debet esse sub homine,
sed sub Deo et Legu" (That the king should not be under man, but under God and the
law) were quoted time and time again when the Stuart Kings claimed to rule by divine
right. We would like to quote and requite those words of Sir Edward Coke even at the
threshold.
3. In our democratic polity under the Constitution based on the concept of 'Rule of
Law' which we have adopted and given to ourselves and which serves as an aorta in
the anatomy of our democratic system, THE LAW IS SUPREME.
4. Everyone whether individually or collectively is unquestionably under the supremacy
of law. Whoever he may be, however high he is, he is under the law. No matter how
powerful he is and how rich he may be.
5. The heated and lengthy argument advanced in general by all the learned Counsel on
the magnitude and the multi-dimensional causes of corruption and also about the
positive and constructive remedial measures and steps to be taken for its eradication
has necessitated us to give a brief exordium about its perniciousness, though strictly
speaking, we would be otherwise not constrained to express any opinion on this.
6. At the outset we may say that we are not inclined to make an exhaustive survey
and analysis about the anatomy, dimensions and causes of corruption. It cannot be
gainsaid that the ubiquity of corruption is always associated with a motivation of
private gain at public expense.
7. Though the historical background and targets of corruption are reviewed time after
time; the definitional and conceptual problems are explored and the voluminous
causes and consequences of corruption are constantly debated through out the globe,
yet the evils of corruption and their auto narcotic effect pose a great threat to the
welfare of society and continue to grow in menacing proportion. therefore, the canker
of the venality, if not fought against on all fronts and at all levels, checked and
eradicated, will destabilize and debilitate the very foundations of democracy; wear
away the rule of law through moral decay and make the entire administration
ineffective and dysfunctional.
8. Mere rhetorical preaching of apostolic sermons listing out the evils of corruption and
raising slogans with catch-words are of no use in the absence of practical and effective
steps to eradicate them; because 'evil tolerated is evil propagated'.
9. At the same time, one should also be alive to cases where false and frivolous
accusations of corruption are maliciously made against an adversary exposing him to
social ridicule and oblique with an ulterior motive of wreaking vengeance due to past
animosity or personal pique or merely out of spite regardless of the fact whether the
proceedings will ultimately culminate into conviction or not.
10. We would like to make it clear that the above exordial note is given without casting
any aspersion against any of the parties to the present proceedings or touching the
individual merit of the case.
11. The relevant facts giving rise to this appeal, though have been set out in great
detail in the impugned judgment of the High Court, have to be recapitulated in order to
enable us to give our own reasons for the findings which we will be arriving at on the

interpretation of certain provisions of the Criminal Procedure Code ('the Code' for
short) and of the Prevention of Corruption Act, 1947 ('the Act' for short).
12. This appeal by grant of special leave is directed by the appellants, namely, the
State of Haryana and two others assailing the judgment dated 8.9.1988 of a Division
Bench of the High Court of Punjab and Haryana rendered in Writ Petition No. 9172/87
quashing the entire criminal proceedings inclusive of the registration of the Information
Report and directing the second respondent, Mr. Dharam Pal to pay the costs to the
first respondent, Ch. Bhajan Lal.
13. Ch. Bhajan Lal was a Minister in 1977 when Ch. Devi Lal was the Chief Minister of
Haryana state and he became the Chief Minister of the state of Haryana in 1982-87.
During the initiation of this criminal proceeding in question, he was the Union Minister
for Environment and Forests, Government of India.
14. In the general election to the legislative assembly of the state of Haryana in June
1987, Smt. Jasma Devi, the wife of Ch. Bhajan Lal contested from Adampur
constituency on being sponsored by the Congress (I) party as against the second
respondent, Mr. Dharam Pal who was a nominee of the Lok Dal. Mrs. Jasma Devi was
successfully elected. Dharam Pal presented an election petition calling in question the
election of Smt. Jasma Devi on a variety of grounds. Ch. Devi Lal, the third respondent
in this appeal who was the second respondent in the writ petition also contested on
Lok Dal's ticket and became successful. Thereafter Ch. Devi Lal became the Chief
Minister of the State of Haryana in 1987.
15. It seems that after the general election there were a number of criminal
proceedings between the parties one of which being a criminal prosecution against
Dharam Pal Under Section 307 IPC registered in Adampur police station. On account of
the political rivalry and the institution of a number of criminal cases and counter cases
there was bad-blood between Ch. Bhajan Lal on the one hand and Ch. Devi Lal on the
other.
16. While it was so, on 12th November 1987 Dharm Pal presented a complaint before
Ch. Devi Lal making certain serious allegations against Bhajan Lal, a brief note of
which is given below:
17. Before 1969 Ch. Bhajan Lal was a man of ordinary means and did not have any
definite source of income, but after he was inducted in the Cabinet as a Minister and
particularly after he became the Chief Minister of the State, he accumulated huge
properties worth crores of rupees in the names of his family members, relations and
persons close to him by misusing his power and position and also by undervaluing the
market price and all those transactions are benami in character. In the complaint, Mr.
Dharam Pal has given the details citing 20 independent allegations, alleging that a
palatial house is being constructed at Hissar at the cost of about Rs. 50 lakhs and that
extensive lands at various places have been purchased either in the name of his wife,
Jasma Devi, or in the names of his sons Kuldip and Chander Mohan or benami in the
names of his relations etc. and that two petrol pumps valuing about Rs. 5 lakhs have
been installed in the name of his wife, and that certain shops have been constructed
etc. Besides these allegations, it is said that Bhajan Lal has acquired several other
properties either in his name or in the names of his benamidars such as shares in the
cinemas of Sirsa and Adampur, besides owning trucks, cars etc. and is possessing gold,
silver and diamond ornaments valuing about Rs. 5 crores. The accumulation of all

those properties in the shape of buildings, land, shares and ornaments etc. is far
beyond his legal means and, therefore, an investigation should be directed and
appropriate action be taken against Ch. Bhajan Lal.
18. On the complaint presented by Dharam Pal, the Officer on Special Duty (OSD) in
the Chief Minister's Secretariat made an endorsement on 12.11.1987 in Hindi, the
translation of which reads "C.M. has seen. For appropriate action" and marked the
same to the Director General of Police (DGP), who in turn made an endorsement on
12.11.1987 itself reading "Please look into this; take necessary action and report" and
marked it to the Superintendent of Police (S.P.) Hissar. The said complaint along with
the above endorsements of OSD and DGP was put up before the S.P., the second
appellant on 21.11.1987, on which date itself the S.P. made his endorsement reading
"Please register a case and investigate".
19. The SHO (the third appellant) registered a case on the basis of the allegations in
the complaint Under Sections 161 and 165 of the Indian Penal Code and
Section 5(2) of the Act on 21.11.1987 itself at 6.15 P.M. and took up the investigation.
On the foot of the First Information Report (F.I.R.) the following endorsement has been
made:
Police proceeding that the S.P. Hissar after registering the case on the above
application has ordered to investigate the case. That FIR Under
Section 161, 165 IPC. 5.2.1947 P.C Act has been registered at P.S. Sadar Hissar.
An Inspector, along with constables Sumer Singh 700, Randhir Singh 445, Attar
Singh 47 proceed to the spot. Constables Sumar Singh 700, and Randhir Singh
445 were handed over one rifle along with 50 cartridges each and copy of the
FIR as a special report is being sent through Head constable Bhaktawar Singh,
602 at the residence of Illaga Magistrate and other offices.
Tara
Inspector,
Police Station, Sadar.

Chand,

20. The third petitioner (SHO) after forwarding a copy of the first information report to
the Magistrate and other officers concerned, himself took up the investigation and
proceeded to the spot accompanied by three constables of whom two constables were
handed over one rifle each and 50 cartridges.
21. While the matter stood thus, the first respondent filed the writ petition No.
9172/87 under Articles 226 and 227 of the Constitution of India seeking issuance of a
writ of certiorari quashing the first information report and also of a writ of prohibition
restraining the petitioners herein from further proceeding with the investigation. It is
stated that the High Court granted an ex-parte stay which was thereafter made
absolute.
22. Initially 3 separate written statements were filed before the High Court, one by
Inspector Kartar Singh (on behalf of the State of Haryana, the S.P. and S.H.O. who
were respondents 1, 3 and 4 in the writ petition and who are the appellants herein);
another by respondent No. 2 Ch. Devi Lal (who is the third proforma respondent in this
appeal) and the third one by respondent No. 5 in the writ petition (who is the
complainant and the second respondent in this appeal). Subsequently realising that
Kartar Singh was not competent to file the written statement on behalf of the State, SP

and SHO in terms of the Rules of Business, separate written statements one by the
then S.P. Lekhi Ram and Anr. by Inspector Tara Chand (who registered the case) were
filed on 14.7.1988. However, no written statement was filed on behalf of the State of
Haryana. The High Court before which several contentions were raised by the
respective parties examined each of the allegations in detail in the light of the
explanatory and denial statement which according to the High Court has not been
either explained or denied by the State and rejected the plea of the appellants 2 and 3
submitting that it is wholly premature to say anything with regard to the truthfulness
or otherwise of the allegations and observed as follows:
1. ...it is clear that the allegations made are just imaginary and fantastic.
2. ...his (respondent No. 2 Dharam Pal) sole object in putting complaint
Annexure P-9 was to set the machinery of the criminal law in motion against the
petitioner without verifying the truth or otherwise of his own allegations before
levelling them against the petitioner in the complaint Annexure P-9 and that he
was solely depending upon the fishing enquiry which may be undertaken by the
police in the course of its investigation without being himself possessed or
known to or seen any material or documents justifying his allegations of benami
purchases, or under valuation of property allegedly purchased by the petitioner.
3. Allegations obtaining in Annexure P-9 are, therefore, the outcome of a
desparate, frustrated mind....
4. Irresponsible manner in which indiscriminate allegations have been levelled
by Dharam Pal, respondent No. 5 against the petitioner in Annexure P-9 is
patent from the assertions made in respect of benami ownership of house No.
1028, Friends Colony, New Delhi by the petitioner.
5. Respondent No. 5 appears to have made these allegations only to curry
favour with respondent No. 2 and to avenge his own insult of defeat in elections
against the petitioner's wife. The charges levelled in the complaint Annexure P-9
by respondent No. 5 against the petitioner are, therefore, all groundless.
6. It was only the S.P. Lekhi Ram and the Inspector Tara Chand both of whom
filed their individual written statements on July 14, 1988 more than eight
months after the filing of the writ in December 1987, who tried to be more loyal
to the king than the king himself and in turn respectively ordered the
registration of the case against the petitioner and proceeded to the spot (God
knows which one and for what purpose) with duly armed constabulary. Mala
fides, if at all these can be attributed are attributable to S.P. Lekhi Ram and
Inspector Tara Chand but not to Chaudhary Devi Lal, Chief Minister Haryana
arrayed as respondent No. 2 in the writ petition.
23. With regard to the contention of non-application of mind on the part of the police
officials, the High Court held thus:
It thus appears that the allegation regarding application of mind by the S.H.O. Inspector
Tara Chand of Police Station Sadar, Hissar has been made only because the S.P. was
feeling shallow under his feet... that all was not well with them and both of them were
feeling cold under their feet as to who amongst them would take the odium upon himself
for having done something which was in fact not done by either of them. Faced against

the wall, they felt compelled on 14.7.1988 to put in hotch potch affidavits aforesaid
which do not indicate any application of mind by either one of them, much less the
Superintendent of Police, Hissar, who was obliged in law to do so.
24. Finally after making reference to various decisions of this Court and in particular to
State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. : 1982CriLJ819 , the
High Court concluded that the allegations do not constitute a cognizable offence for
commencing the lawful investigation and granted the relief as prayed for and mulcted
the fifth respondent with the costs of the writ petition. In the penultimate paragraph of
its judgment, the learned Judges cited a historical event, namely, a challenge made by
Pores before Alexander about which we will express our view at the appropriate place
of this judgment. The appellants on being aggrieved by the impugned judgment of the
High Court has preferred the present appeal. At this juncture we would like to point
out that one Chhabil Dass, a third party has filed an application accompanied by an
affidavit praying to implead him as a party and stating that he has got sufficient
materials to substantiate the allegations averred in the complaint of the second
respondent. As the applicant Chhabil Dass was not a party to the proceedings before
the High Court, his application is rejected.
25. Mr. Rajinder Sachhar, the learned senior counsel along with the learned Advocate
General of Haryana State assisted by Mr. Mahabir Singh appeared for the appellants
whilst Mr. R.K. Garg, the learned senior counsel appeared for the second respondent,
Dharam Pal on whose complaint the impugned first information report had been
registered and the investigation was commenced. Mr. K. Parasaran, the learned senior
counsel along with Mr. P. Chidambaram, the learned senior counsel assisted by Mr.
Gopal Subramaniam appeared on behalf of the first respondent. Mr. Rajinder Sachhar
and Mr. R.K. Garg made a cascade of vitriolic comments on the reasons assigned and
the conclusions drawn therefrom by the High Court and assailed the impugned
judgment by making a frontal brunt asseverating that the instances of corruption cited
in the complaint by Dharam Pal which are in the increase both in volume and
virulence, though so far hidden from the public view, and those allegations taken
either individually or collectively, unerringly and irrefragably constitute a cognizable
offence warranting firstly the registration of a case as contemplated Under
Section 154(1) of the Code and secondly imperatively demanding a thorough
investigation in compliance with the various statutory provisions particularly
Sections 156, 157, 159 etc. falling under Chapter XII of the Code. According to them,
the High Court has no justification in riding its chariot over the track of investigation
and thereby obliterating the same and the High Court in doing so has committed a
grave and substantial illegality by quashing the First Information Report and the
further proceedings of the investigation.
26. Mr. Parasaran vehemently urged that the impugned judgment is a well considered
and well reasoned one and hence there can be no justification for this Court in
dislodging the unassailable conclusion. According to him, the deep rooted political
animosity and rivalry that Ch. Devi Lal had entertained on account of his failure in his
attempt to become the Chief Minister of Haryana State in 1978 and 1982 which blew in
with hot weather had uplifted the subterranean heat resulting in the out-pouring of
character assassination against Ch. Bhajan Lal. The complainant, Dharam Pal who
suffered a shameful defeat in the general election held in 1988 at the hands of Jasma
Devi, wife of Ch. Bhajan Lal and who is a stooge in the hands of Ch. Devi Lal is used as
an instrument to present this complaint containing false and scurrilous allegations.

27. All the learned Counsel appearing for all the parties took much pain and advanced
their eloquent arguments with the aid of a series of decisions of this Court, but
occasionally punctured with inflamed rhetoric and surcharged with emotions. In
addition to their oral arguments they also filed written submissions. We after carefully
and assiduously examining the contentions and counter-contentions advanced by all
the parties both on the legal and factual aspects and after scrupulously scanning the
materials placed on record and examining the written arguments submitted by the
parties, would like to deal with those contentions seriatim.
28. Before discussing which of the submissions ought to prevail, we shall in the
foremost deal with the legal principles governing the registration of a cognizable
offence and the investigation arising thereon. Section 154(1) is the relevant provision
regarding the registration of a cognizable offence and that provision reads as follows:
Every information relating to the commission of a cognizable offence, if given orally to an
officer-in-charge of a police station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every such information, whether given
in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and
the substance thereof shall be entered in a book to be kept by such officer in such form
as the State Government may prescribe in this behalf.
29. The above Sub-section correspondents to Section 154 of the old Code (Act of 1898
to which various amendments are made by Act XXVI of 1955 and also to
Section 154 of the CrPC of 1882 (Act X of 1882) except for the slight variation in that
expression 'Local Government' had been used in 1882 in the place of 'State
Government'. Presently, on the recommendations of the 41st Report of the Law
Commission, the Sub-sections 2 and 3 have been newly added but we are not
concerned with those provisions as they are not relevant for the purpose of the
disposal of this case except for making some reference at the appropriate places, if
necessitated. Section 154(1) regulates the manner of recording the First Information
Report relating to the commission of a cognizable offence.
30. The legal mandate enshrined in Section 154(1) is that every information relating to
the commission of a "cognizable offence" (as defined Under Section 2(c)of the Code) if
given orally (in which case it is to be reduced into writing) or in writing to "an officer
incharge of a police station" (within the meaning of Section2(o) of the Code) and
signed by the informant should be entered in a book to be kept by such officer in such
form as the State Government may prescribe which form is commonly called as "First
Information Report" and which act of entering the information in the said form is
known as registration of a crime or a case.
31. At the stage of registration of a crime or a case on the basis of the information
disclosing a cognizable offence in compliance with the mandate of Section154(1) of the
Code, the concerned police officer cannot embark upon an enquiry as to whether the
information, laid by the informant is reliable and genuine or otherwise and refuse to
register a case on the ground that the information is not reliable or credible. On the
other hand, the officer incharge of a police station is statutorily obliged to register a
case and then to proceed with the investigation if he has reason to suspect the
commission of an offence which he is empowered Under Section 156 of the Code to
investigate, subject to the proviso to Section 157. (As we have proposed to make a
detailed discussion about the power of a police officer in the field of investigation of a
cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing

part of this judgment, we do not propose to deal with those sections in-extensor in the
present context). In case, an officer incharge of a police station refuses to exercise the
jurisdiction vested on him and to register a case on the information of a cognizable
offence, reported and thereby violates the statutory duty cast upon him, the person
aggrieved by such refusal can send the substance of the information in writing and by
post to the Superintendent of Police concerned who if satisfied that the information
forwarded to him discloses a cognizable offence, should either investigate the case
himself or direct an investigation to be made by any police officer subordinate to him
in the manner provided by Sub-section 3 of Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the legislature in its collective
wisdom has carefully and cautiously used the expression "information" without
qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions,
"reasonable complaint" and "credible information" are used. Evidently, the nonqualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and
(g) of the Code may be for the reason that the police officer should not refuse to
record an information relating to the commission of a cognizable offence and to
register a case thereon on the ground that he is not satisfied with the reasonableness
or credibility of the information. In other words, 'reasonableness' or 'credibility' of the
said information is not a condition precedent for registration of a case. A comparison of
the present Section 154 with those of the earlier Codes will indicate that the legislature
had purposely thought it fit to employ only the word "information" without qualifying
the said word. Section 139 of the CrPC of 1861 (Act XXV of 1861) passed by the
Legislative Council of India read that 'every complaint or information' preferred to an
officer incharge of a police station should be reduced into writing which provision was
subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which
thereafter read that 'every complaint' preferred to an officer incharge of a police
station shall be reduced in writing. The word 'complaint' which occurred in previous
two Codes of 1861 and 1872 was deleted and in that place the word 'information' was
used in the Codes of 1882 and 1898 which word is now used in
Sections 154, 155, 157 and 190(c) of the present Code of 1973(Act II of 1974). An
overall reading of all the Codes makes it clear that the condition which is sine-qua-non
for recording a First Information Report is that there must be an information and that
information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a organizable
offence is laid before an officer incharge of a police action satisfying the requirements
of Section 154(1) of the Code, the void police officer has no other option except to
enter the substance thereof in the prescribed form, that is to say, to register a case on
the basis of such information.
34. In this connection, it may be noted that though a police officer cannot investigate a
non-cognizable offence on his own as in the case of cognizable offence, he can
investigate a non-cognizable offence under the order of a Magistrate having power to
try such non-cognizable case or commit the same for trial within the terms Under
Section 155(2) of the Code but subject to Section 155(3) of the Code. Further, under
the newly introduced Sub-section (4) to Section 155, where a case relates to two
offences to which atleast one is cognizable, the case shall be deemed to be a
cognizable case notwithstanding that the other offences are non-cognizable and,
therefore, under such circumstances the police officers can investigate such offences
with the same powers as he has while investigating a cognizable offence.

35. The next key question that arises for consideration is whether the registration of a
criminal case Under Section 154(1) of the Code ipso facto warrants the setting in
motion of an investigation under Chapter XII of the Code.
36. Section 157(1) requires an Officer Incharge of a Police Station who 'from
information received or otherwise' has reason to suspect the commission of an
offence-that is a cognizable offence-which he is empowered to investigate Under
Section 156, to forthwith send a report to a Magistrate empowered to take cognizance
of such offence upon a police report and to either proceed in person or depute any one
of his subordinate Officers not being below such rank as the State Government may,
by general or special order, prescribe in this behalf, to proceed to the spot, to
investigate the facts and circumstances of the case and if necessary, to take measures
for the discovery and arrest of the offender. This provision is qualified by a proviso
which is in two parts (a) and (b). As per Clause (a) the Officer Incharge of a Police
Station need not proceed in person or depute a subordinate officer to make an
investigation on the spot if the information as to the commission of any such offence is
given against any person by name and the case is not of a serious nature. According to
Clause (b), if it appears to the Officer Incharge of a Police Station that there is no
sufficient ground for entering on an investigation, he shall not investigate the case.
Sub-section (2) of Section157 demands that in each of the cases mentioned in Clauses
(a) and (b) of the proviso to Sub-section (1) of Section 157, the Officer Incharge of
the Police Station must state in his report, required to be forwarded to the Magistrate
his reasons for not fully complying with the requirements of Sub-section (1) and when
the police officer decides not to investigate the case for the reasons mentioned in
Clause (b) of the proviso, he in addition to his report to the Magistrate, must forthwith
notify to the informant, if any, in such manner as may be prescribed by the State
Government, the fact that he will not investigate the case or cause the case to be
investigated.
Section 156(1) which
is
to
be
read
in
conjunction
with
Section 157(1) states that any Officer Incharge of a Police Station may without an
order of a Magistrate, investigate any cognizable case which a Court having jurisdiction
over the local area within the limits of the concerned police station would have power
to enquire into or try under provisions of Chapter XIII. Section 156(3) vests a
discretionary power on a Magistrate empowered Under Section 190 to order an
investigation by a police officer as contemplated in Section 156(1). It is pertinent to
note that this provision does not empower a Magistrate to stop an investigation
undertaken by the police. In this context, we may refer to an observation of this Court
in State of Bihar and Anr. v. J.A.C. Saldanha and Ors. : 1980CriLJ98 at page 568
extending the power of the Magistrate Under Section 156(3) to direct further
investigation after submission of a report by the investigating officer Under
Section 173(2) of the Code. The said observation reads thus:
The power of the Magistrate Under Section 156(3) to direct further investigation is
clearly an independent power and does not stand in conflict with the power of the State
Government as spelt out hereinbefore. The power conferred upon the Magistrate Under
Section156(3) can be exercised by the Magistrate even after submission of a report by
the investigating officer which would mean that it would be open to the Magistrate not to
accept the conclusion of the investigating officer and direct further investigation. This
provision does not in any way affect the power of the investigating officer to further
investigate the case even after submission of the report as provided in Section 173(8).
37. The above two provisions-that is Sections 156 and 157 of the Code are followed by
Section 159 which empowers a Magistrate, on receipt of a report forwarded by the

police Under Section 157 to direct an investigation or if he thinks fit, at once to

proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary
enquiry into, or otherwise to dispose of, the case in the manner provided in the Code.
The expression "on receiving such a report" evidently refers to the receipt of a report
contemplated in Section 157(2), because the question of directing an investigation by
the Magistrate cannot arise in pursuance of the report referred to under Sub-section
(1) of Section 157 intimating that the police officer has proceeded with the
investigation either in person or by deputing any one of his subordinate officers. This
Court in S.N. Sharma v. Bipen Kumar Tiwari and Ors. : 1970CriLJ764 while
interpreting the scope of Section 159 of the Code has stated thus:
This Section first mentions the power of the Magistrate to direct an investigation on
receiving the report Under Section 157, and then states the alternative that, if he thinks
fit, he may at once proceed, or depute any Magistrate subordinate to him to proceed, to
hold a preliminary enquiry into, or otherwise to dispose of, the case. On the face of it,
the first alternative of directing an investigation cannot arise in a case where the report
itself shows that investigation by the police is going on in accordance with Section 156.
It is to be noticed that the second alternative does not give the Magistrate an unqualified
power to proceed himself or depute any Magistrate to hold the preliminary enquiry. That
power is preceded by the condition that he may do so, "if he thinks fit". The use of this
expression makes it clear that Section 159 is primarily meant to give to the Magistrate
the power of directing an investigation in cases where the police decide not to
investigate the case under the proviso to Section 157(1), and it is in those cases that, if
thinks fit, he can choose the second alternative.
38. The Privy Council in Emperor v. Khwaja Nazir Ahmad while dealing with the
statutory right of the police Under Sections 154 and 156 of the Code within its
province of investigation of a cognizable offence has made the following observation:
...so it is of the almost 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 the
duty of enquiry. In India as has been shown 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, as their Lordships think, 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. The functions of the judiciary and
the police are complementary not overlapping and the combination of individual liberty
with a due observance of law and order is only to be obtained by leaving each to
exercise its own function, always, of course, subject to the right of the Court to intervene
in an appropriate case when moved Under Section 491,Criminal P.C. to give directions in
the nature of habeas corpus. In such a case as the present, however, the Court's
functions begin when a charge is preferred before it and not until then.
39. Justice D.A. Desai speaking for the Bench in State of Bihar and Anr. v. J.A.C.
Saldanha and Ors. (albeit) while dealing with the powers of investigation of a police
officer as contemplated in Section 156 of the CrPC has stated thus:
There is a clear-cut and well demarcated sphere of activity in the field of crime detection
and crime punishment. Investigation of an offence is the field exclusively reserved for
the executive through the police department the superintendence over which vests in the
State Government. The executive which is charged with a duty to keep vigilance over law
and order situation is obliged to prevent crime and if an offence is alleged to have been

committed it is its bounden duty to investigate into the offence and bring the offender to
book. Once it investigates and finds an offence having been committed it is its duty to
collect evidence for the purpose of proving the offence. Once that is completed and the
investigating officer submits report to the Court requesting the Court to take cognizance
of the offence Under Section 190 of the Code its duty comes to an end.
40. See also Abhinandan v. Dinesh : 1968CriLJ97 .
41. The core of the above Sections namely 156, 157 and 159 of the Code is that if a
police officer has reason to suspect the commission of a cognizable offence, he must
either proceed with the investigation or cause an investigation to be proceeded with by
his subordinate; that in a case where the police officer sees no sufficient ground for
investigation, he can dispense with the investigation altogether; that the field of
investigation of any cognizable offence is exclusively within the domain of the
investigating agencies over which the Courts cannot have control and have no power
to stifle or impinge upon the proceedings in the investigation so long as the
investigation proceeds in compliance with the provisions relating to investigation and
that it is only in a case wherein a police officer decides not to investigate an offence,
the concerned Magistrate can intervene and either direct an investigation or in the
alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate
subordinate to him to proceed to hold a preliminary inquiry into or otherwise to
dispose of the case in the manner provided in the Code.
42. We shall now examine as to what are the requirements to be satisfied by an Officer
incharge of a police station before he enters into the realm of investigation of a
cognizable offence after the stage of registration of the offence Under Section 154(1).
We have already found that the police have Under Section 154(1) of the Code a
statutory duty to register a cognizable offence and thereafter Under Section 156(1) a
statutory right to investigate any cognizable case without requiring sanction of a
Magistrate. However, the said statutory right to investigate a cognizable offence is
subject to the fulfilment of a prerequisite condition, contemplated in Section 157(1).
The condition is that the officer incharge of a police station before proceeding to
investigate the facts and circumstances of the case should have "reason to suspect"
the commission of an offence which he is empowered Under Section 156 to
investigate. Section 135 of the CrPC of 1861 (Act XXV of 1861) required the police
officer on receipt of a complaint or information constituting any of the offences
specified in column 3 of the schedule annexed to that Act should proceed with the
investigation, but this Code did not require the condition of entertaining the reason to
suspect the commission of an offence before commencing the investigation.
Subsequently, in the CrPC of 1872 a provision, namely, Section 114 which was more or
less similar to the present Section 157(1) was introduced which provision required the
police officer to have "reason to suspect" the commission of a cognizable offence
before he proceeded to investigate the facts and circumstances of the case. Thereafter
in the CrPC of 1882 a provision, namely, Section 157 which was identical to that of the
present Section 157 except for some variations in the latter part of that Section was
introduced which provision also required the police officer to have "reason to suspect"
the commission of a cognizable offence. May it be noted that the Law Commission of
India in its 41st report expressed its opinion that Section 157 did not call for any
amendment.
43. The expression "reason to suspect" as occurring in Section 157(1) is not qualified
as in Section 41(a) and (g) of the Code, wherein the expression, "reasonable

suspicion" is used. therefore, it has become imperative to find out the meaning of the
words "reason to suspect" which words are apparently clear, plain and unambiguous.
Considering the context and the object of the procedural provision in question, we are
of the view that only the plain meaning rule is to be adopted so as to avoid any
hardship or absurdity resulting therefrom and the words are used and also to be
understood only in common parlance. We may, in this behalf, refer to a decision of the
Privy Council in Pakala Narayanaswami v. Emperor wherein Lord Atkin said as follows:
When the meaning of the words is plain, it is not the duty of Courts to busy themselves
with supposed intentions.... It, therefore, appears inadmissible to consider the
advantages or disadvantages of applying the plain meaning whether in the interests of
the prosecution or accused.
44. The word 'Suspect' is lexically defined in Webster's Third International Dictionary
as follows:
Suspect-to look up at, suspect; the act of suspecting or the condition of being
suspected... to have doubts of; be dubious or suspicions about; (2) to imagine (one) to
be guilty or culpable on slight evidence or without proof... (3) to imagine to be or be
true, likely or probable: have a suspicion, intimation or inkling of.
45. In Corpus Juris Seconded (Vol. 83) at page 923 the meaning of the word 'Suspect'
is given thus:
The term 'suspect', which is not technical, is defined as meaning to imagine to exist;
have some, although insufficient, grounds for inferring; also to have a vague notion of
the existence of, without adequate proof; mistrust; surmise. It has been distinguished
from 'believe.
46. In the same volume, the expression "suspicion" is defined at page 927 as follows:
The act of suspecting or the state of being suspected; the imagination, generally of
something ill; the imagination of the existence of something without proof, or upon very
slight evidence, or upon no evidence at all....
47. In words and Phrases (Permanent Edition 40A) at page 590, the word 'suspicion' is
defined thus:
Suspicion' implies a belief or opinion as to guilt, based on facts or circumstances which
do not amount to proof. Scaffido v. State 254 N.W. 651. The state of mind which in a
reasonable man would lead to inquiry is called mere 'suspicion'. Stuart v. Farmers', Bank
of Cuba City 117 N.W. 820.
Again at page 591 the said word is expounded as follows:
The word 'suspicion' is defined as being the imagination of the existence of something
without proof, or upon very slight evidence, or upon no evidence at all. Cook v. Singer
Sewing Mach. Co. 32 P. 2d 430, 431, 138 Cal. App. 418.
48. See also Emperor v. Vimlabai Deshpande ; United States v. Cortez 66 L.Ed. 2d
(US)(SCR)623 (II (A (3); and Dallison v. Caffery [1964] 2All E.R. 610.

49. One should not lose sight of the fact that Section 157(1) requires the police officer
to have reason to suspect only with regard to the commission of an offence which he is
empowered Under Section 156 to investigate, but not with regard to the involvement
of an accused in the crime. therefore, the expression "reason to suspect the
commission of an offence" would mean the sagacity of rationally inferring the
commission of a cognizable offence based on the specific articulate facts mentioned in
the First Information Report as well in the Annexures, if any, enclosed and any
attending circumstances which may not amount to proof. In other words, the meaning
of the expression "reason to suspect" has to be governed and dictated by the facts and
circumstances of each case and at that stage the question of adequate proof of facts
alleged in the first information report does not arise. In this connection, we would like
to recall an observation of this Court made in State of Gujarat v. Mohanlal J. Porwal 7 :
1987CriLJ1061 while interpreting the expression 'reasonable belief. It runs thus:
Whether or not the officer concerned had entertained reasonable belief under the
circumstances is not a matter which can be placed under legal microscope, with an overindulgent eye which sees no evil anywhere within the range of its eyesight. The
circumstances have to be viewed from the experienced eye of the officer who is well
equipped to interpret the suspicious circumstances and to form a reasonable belief in the
light of the said circumstances.
50. See also Pukhraj v. D.R. Kohli : [1962] 3 SCR 866.
51. Resultantly, the condition precedent to the commencement of the investigation
Under Section 157(1) of the Code is the existence of the reason to suspect the
commission of a cognizable offence which has to be, prima facie disclosed by the
allegations made in the first information laid before the police officer Under
Section 154(1).
52. In State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. (albeit)
Chandrachud, C.J. while agreeing with the judgment of Justice A.N. Sen with which
judgment Justice Vardarajan also agreed, has expressed his view in his separate
judgment on the above point under discussion as follows:
The position which emerges from these decisions and the other decisions which are
discussed by brother A.N. Sen is that the condition precedent to the commencement of
investigation Under Section 157 of the Code is that the FIR must disclose, prima facie,
that a cognizable offence has been committed. It is wrong to suppose that the police
have an unfettered discretion to commence investigation Under Section 157 of the Code.
Their right of enquiry is conditioned by the existence of reason to suspect the
commission of a cognizable offence and they cannot, reasonably, have reason so to
suspect unless the F.I.R., prima facie, discloses the commission of such offence.
53. As pointed out in the earlier part of this judgment, Section 157(1) is qualified by a
proviso which is in two parts (a) and (b). Clause (a) of the proviso is only an enabling
provision with which we are not very much concerned. However, Clause (b) of the said
proviso imposes a fetter on a police officer directing him not to investigate a case
where it appears to him that there is no sufficient ground in entering on an
investigation. As Clause (b) of the proviso permits the police officer to satisfy himself
about the sufficiency of the ground even before entering on an investigation, it
postulates that the police officer has to draw his satisfaction only on the materials
which were placed before him at that stage, namely, the first information together with

the documents, if any, enclosed. In other words, the police officer has to satisfy
himself only on the allegations mentioned in the first information before he enters on
an investigation as to whether those allegations do constitute a cognizable offence
warranting an investigation.
54. From the above discussion, it is pellucid that the commencement of investigation
by a police officer is subject to two conditions, firstly, the police officer should have
reason to suspect the commission of a cognizable offence as required by
Section 157(1) and secondly, the police officer should subjectively satisfy himself as to
whether there is sufficient ground for entering on an investigation even before he
starts an investigation into the facts and circumstances of the case as contemplated
under Clause (b) of the proviso to Section 157(1) of the Code.
55. The next point for consideration is whether Section 157 of the Code gives the
police officers carte blanche drawing no legal bounds in the province of investigation
and whether the powers of the police officers in the field of investigation are wholly
immune from judicial review ability.
56. The above questions have been examined by the Courts on several occasions and
they have by judicial pronouncements carved out an area, limited though it be, within
which the legality of the exercise of powers by police officers in the realm of
investigation and yet be subjected to judicial review ability and scrutiny and the
immunity enjoyed by the police officers is only a conditional immunity. The Privy
Council in Nazir Ahmad's case (albeit) though has ruled that it is of the utmost
importance that the judiciary should not interfere with the police in matters which are
within their province has provided an exception to that above observation to the effect
that if no cognizable offence or no case of any kind is disclosed, the police would have
no authority to undertake the investigation.
57. This Court on several occasions has expressed its concern for personal liberty of a
citizen and also has given warning about the serious consequences that would flow
when there is non-observance of procedure by the police while exercising their
unfettered authority. Gajendragadkar, J speaking for the Bench in R.P. Kapur v. The
State of Punjab : 1960CriLJ1239 states as follows:
It is of utmost importance that investigation into criminal offence must always be free
from any objectionable features or infirmities which may legitimately lead to the
grievance of the accused that the work of investigation is carried on unfairly and with
any ulterior motive.
58. Krishna Iyer, J. in Nandini Satpathy v. P.L. Dani and Anr. : 1978CriLJ968 has
expressed his view thus:
...a police officer who is not too precise, too sensitive and too constitutionally
conscientious is apt to trample under foot the guaranteed right of testimonials tacitness.
59. Bhargava, J. speaking for the Bench in S.N. Sharma v. Bipen Kumar Tiwari and
Ors. (albeit) has stated thus:
It appears to us that, though the CrPC gives to the police unfettered power to investigate
all cases where they suspect that a cognizable offence has been committed, in
appropriate cases an aggrieved person can always seek a remedy by invoking the power

of the High Court under Article 226 of the Constitution under which, if the High Court
could be convinced that the power of investigation has been exercised by a police officer
mala fide, the High Court can always issue a writ of mandamus restraining the police
officer from misusing his legal powers. The fact that the Code does not contain any other
provision giving power to a Magistrate to stop investigation by the police cannot be a
ground for holding that such a power must be read in Section 159 of the Code.
60. Mathew, J. in his majority judgment in Prabhu Dayal Deorath etc. etc. v. The
District Magistrate, Kamrup and Ors. : 1974CriLJ286 while emphasising the
preservation of personal liberty has expressed his view thus:
We say, and we think it is necessary to repeat, that the gravity of the evil to the
community resulting from antisocial activities can never furnish an adequate reason for
invading the personal liberty of a citizen, except in accordance with the procedure
established by the Constitution and the laws. The history of personal liberty is largely the
history of insistence on observance of procedure. Observance of procedure has been the
bastion against wanton assaults on personal liberty over the years. Under our
Constitution, the only guarantee of personal liberty for a person is that he shall not be
deprived of it except in accordance with the procedure established by law.
61. Chandrachud, C.J. in Swapan Kumar Guha's case while examining the power of a
police officer in the field of investigation of a cognizable offence has affirmed the view
expressed by Mathew, J and observed as follows:
There is no such thing like unfettered discretion in the realm of powers defined by
statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer
of personal freedom. The power to investigate into cognizable offences must, therefore,
be exercised strictly on the condition on which it is granted by the Code.
62. The sum and substance of the above deliberation results to a conclusion that the
investigation of an offence is the field exclusively reserved for the police officers whose
powers in that field are unfettered so long as the power to investigate into the
cognizable offences is legitimately exercised in strict compliance with the provisions
falling under Chapter XII of the Code and the Courts are not justified in obliterating the
track of investigation when the investigating agencies are well within their legal bounds
as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of
the Code is that a Magistrate is kept in the picture at all stages of the police
investigation but he is not authorised to interfere with the actual investigation or to
direct the police how that investigation is to be conducted. But if a police officer
transgresses the circumscribed limits and improperly and illegally exercises his
investigatory powers in breach of any statutory provision causing serious prejudice to
the personal liberty and also property of a citizen, then the Court on being approached
by the person aggrieved for the redress of any grievance, has to consider the nature
and extent of the breach and pass appropriate orders as may be called for without
leaving the citizens to the mercy of police echelons since human dignity is a dear value
of our Constitution. Needs no emphasis that no one can demand absolute immunity
even if he is wrong and claim unquestionable right and unlimited powers exercisable
upto unfathomable cosmos. Any recognition of such power will be tantamount to
recognition of 'Divine Power' which no authority on earth can enjoy.
63. Here-to-fore, we have dealt with the intendment of the various statutory provisions
relating to the registration of the First Information Report, the statutory duty cast on

the police officers to investigate the cognizable offences, the such authority of the
police officers in-the field of investigation and the circumscribed limits imposed on such
authority in the conduct of investigation.
64. The central issue involved for scrutiny is whether the order of the Court in
quashing the First Information Report and the proceeding of the investigation is legally
sustainable and if not, to what extent the said order suffers from legal infirmity.
65. Mr. K. Parasaran forcefully contended that the allegations averred in the complaint
even if taken at their face value and accepted in its entirety do not constitute an
offence demanding either the registration of a case or commencement of an
investigation; that it would be manifestly unjust to allow the procedure of criminal law
to be proceeded with against Ch. Bhajan Lal and that the High Court on a proper
appreciation of the material placed before it has come to a correct and indisputable
conclusion based on the logical reasonings that no offence is disclosed and no case is
made out. According to him the allegations of corruption wrapped in a cocoon of
ambiguity, falsity and vagueness demonstrate only the personal and old political rivalry
that existed over a period between Ch. Devi Lal and Ch. Bhajan Lal rather than
constituting a criminal offence.
66. Reverting to the severe critical charges levelled against the validity of the
impugned judgment and the recrimination made on behalf of Ch. Bhajan Lal, we shall
at the threshold anatomize the reasons imputed by the High Court for quashing the
First Information Report in the back drop of the legal principles enunciated in the
preceding part of this judgment.
67. The complainant Dharam Pal has cited as many as 20 instances in his complaint
with an exordial note that Ch. Bhajan Lal before 1969 was only a man of ordinary
means without having any definite source of income and that he after becoming a
Minister and then as Chief Minister, accumulated enormous property worth crores of
rupees under shady transactions inclusive of benami transactions in the names of his
family members, relatives and persons close to him by misusing his power and
position. Added to that in the final part of the complaint he has alleged "Besides this,
Bhajan Lal has other properties in his name or benami like shares in cinemas of Sirsa
and Adampur, trucks and cars at Adampur and Hissar and Fatehbad, petrol pump at
Agroha Mor and is possessing gold, silver and diamond ornaments valued about Rs. 5
crores which are far beyond the legal means of Ch. Bhajan Lal."
68. Both in the Writ Petition (Writ Petition No. 9172/87) filed before the High Court as
well in the counter affidavit filed before this Court, Ch. Bhajan Lal (the first respondent
herein) has attempted to answer those allegations levelled against him by (1) giving a
detailed account revealing a chronicle of the old political rivalry that existed between
him on the one hand and Ch. Devi Lal and Dharam Pal on the other and a brief
summary of a spate of criminal cases in which the parties to this proceeding and their
men were embroiled and (2) offering an explanation to some of the allegations and
emphatically abjuring the rest. In support of his assertions made on oath in the
counter affidavit, he has enclosed 11 annexures. An additional affidavit has been filed
by Dharam Pal by way of amplification alleging that Bhajan Lal is constructing a
palatial house worth about Rs. 50 lakhs, the built-in area of which is not less than
21,100sq. ft.

69. During the course of the hearing of the case, an un-numbered interlocutory
application in the Special Leave Petition enclosed with a copy of an un-numbered Writ
Petition (Civil) of 1988 preferred before the High Court of Delhi by M/s. Bhanu Steels
Pvt. Ltd., D-1028, New Friends Colony, New Delhi was filed on behalf of Dharam Pal for
establishing two facts namely (1) that the finding of the High Court relating to the
Instance No. 12 in the complaint alleging that the house No. D-1028, New Friends
Colony valuing about Rs. 75 lakhs has been bought under benami transaction, holding
'This one glaring instance shows how the mala fide and false First Information Report
is recorded against the petitioner' is falsified and (2) that Bhanu Steels Pvt. Ltd. had
entered into an agreement of sale dated 22.9.1988 with Mrs. Roshni Bishnoi (who is
the 7th respondent in the said writ petition and who is none other than the daughter of
Ch. Bhajan Lal) in respect of the above property namely D-1028, New Friends Colony,
New Delhi for a consideration of Rs. 40 lakhs plus unearned increase payable to the
D.D.A. which at present effective rates work out to Rs. 14,05,515.
70 .Mr. Chidambaram took a strong objection stating that these untested allegations
are introduced only to prejudice the Court and, therefore, the Court should refrain
from considering these allegations. We may straightaway say that we do not take note
of these new allegations as we are not called upon at this stage to embark upon an
enquiry whether the allegations in the First Information Report are reliable or not and
thereupon to render a finding whether any of the allegations is proved. These are
matters which can be examined only by the concerned Court after the entire materials
are placed before it on a thorough investigation.
71. As pointed out earlier no counter was filed before the High Court on behalf of the
first appellant (the State of Haryana), but only the second and third appellants filed
separate written statements at a later stage mainly contending that it is wholly
premature to give any reply with regard to the averments made in the Writ Petition.
The High Court went in detail of the motive alleged by Ch. Bhajan Lal and then
examined the allegations in the light of the untested explanation and denial made by
Bhajan Lal and finally concluded that "The charges levelled in the complaint Annexure
P-9 by respondent No. 5 against the petitioner are, therefore, all groundless ." Since
we have already reproduced some of the observations of the High Court in the earlier
portion of this judgment, it is unnecessary to reproduce them in this connection. The
impugned judgment spells out that the learned Judges of the High Court had felt that
the non-filing of a written statement by a competent authority of the State
Government by way of reply to the averments made in the Writ Petition is a serious
flaw on the part of appellants and as such the averments of Ch. Bhajan Lal should be
held as having disproved the entire crimination alleged in the F.I.R. The above view of
the High Court in our opinion, is neither conceivable nor comprehensible. Further no
adverse inference could be drawn on the mere non-filing of a written statement by the
State of Haryana in cases of this nature especially when the matter relates to serious
disputed facts, yet to be investigated. As rightly pointed out by Mr. Rajinder Sachhar
the stage is pre-mature and as such the Government could not be expected to have in
its possession all the details in support of the allegations made in the complaint before
any enquiry or investigation is launched and completed. Similarly, the appellants 2 and
3 who are only police officials also cannot be expected to give a detailed reply to the
averments made in the Writ Petition when the investigation has not at all proceeded
with. It will be appropriate to refer to a decision of this Court in State of Bihar and Anr.
v. J.A.C. Saldanha and Ors. : 1980CriLJ98 wherein this Court has disapproved the
exercise of the extra-ordinary power of the High Court in issuing a prerogative writ

quashing the prosecution solely on the basis of the averments made in the affidavit in
the following words:
The High Court in exercise of the extraordinary jurisdiction committed a grave error by
making observations on seriously disputed questions of facts taking its cue from
affidavits which in such a situation would hardly provide any reliable material. In our
opinion the High Court was clearly in error in giving the direction virtually amounting to a
mandamus to close the case before the investigation is complete. We say no more.
72. It is true that some of the allegations do suffer from misty vagueness and lack of
particulars. Further as urged by Mr. Parasaran, there are no specific averments that
either Ch. Bhajan Lal or his relations and friends had no source of income to
accumulate the properties now standing in their names and that Ch. Bhajan Lal
showed any favour to them by misusing his official power. In our considered view,
these are all matters which would be examined only during the course of investigation
and thereafter by the court on the materials collected and placed before it by the
investigating agencies. The question whether the relations and friends of Ch. Bhajan
Lal have independently purchased the properties out of their own funds or not also
cannot be decided by the Court at this stage on the denial statement of Bhajan Lal
alone.
73. While Mr. Rajinder Sachhar and Mr. Garg took much pain to show that the reasons
given by the High Court in respect of each of the instances are not legally sustainable,
Mr. Parasaran submitted a tabular statement by listing out each of the instances of the
alleged corruption indicted in the complaint, the explanation given in the Writ Petition
as well as in the counter affidavit related thereto and the reply in the rejoinder and
urged that the allegations in the F.I.R. are nothing but a conglomeration of calumny
and falsehood. As the entire matter stands only at the stage of the registration of the
case and the investigation has not at all proceeded with on account of the order of stay
granted by the High Court, we do not intend or propose to examine the truth or
otherwise of each of the instances in snippet form and thereafter string them together
and express any opinion either way, since in our view any such opinion may affect the
case of either party or cripple the course of investigation.
74. An argument was advanced by Mr. Parasaran submitting that the proposition of law
laid down by this Court in Swapan Kumar Guha's case (albeit) holding that "the legal
position appears to be that if an offence is disclosed, the Court will not normally
interfere with an investigation into the case" clearly shows that this Court has carved
out an area wherein the Courts can interfere in criminal proceedings at any stage if
circumstances so warrant and quash the same. Based on the above proposition of law,
he states that as the allegations in the present case which demonstrably shown to be
speculative and false the judgment of the High Court quashing the proceedings has to
be sustained. In our considered view, this submission cannot be countenanced for the
reasons-firstly we, at this premature stage, are unable to share the view expressed by
the High Court that the charges levelled against Ch. Bhajan Lal are all groundless and
secondly Swapan Kumar Guha's case cannot be availed of by the first respondent as
the question that came up for determination was entirely different. The facts in
Swapan Kumar Guha's case were as follows:
75. Sanchaita Investments, a partnership firm was carrying on business as financiers
and investors and in its business the firm accepted loans or deposits from the general
public for different periods repayable with interest, giving option to the depositors for

premature withdrawal. The firm was carrying on its business on a very extensive scale.
While so, the Parliament passed the Prize Chits and Money Circulation Schemes
(Banning) Act, 1978. On 13.12.1980, the Commercial Tax Officer, Bureau of
Investigation, lodged a complaint of violation of the said Act by the firm with the police
on the ground that the amount in excess of 12% interest so paid showed that the
Money Circulation Scheme was being promoted and conducted for the making of quick
and/or easy money. Two of the partners were arrested. Thereafter the firm and its two
partners filed the Writ Petition in the High Court challenging the validity of the First
Information Report and the proceedings arising out of the same. The question for
consideration was as to whether the First Information Report prima-facie disclosed the
offence Under Section 4 read with Section 3 of the Act of 1978 in the light of the
requirement of Section 2(c) of the Act defining the expression "Money Circulation
Scheme". This Court examined that question with reference to the facts therein and
ultimately held that the allegations did not attract the provisions of Act of 1978. The
question that arises for consideration in the present case is not the one as in Swapan
Kumar Guha's case.
76. The High Court while quashing the impugned proceedings has made certain
sweeping remarks by using the expression 'imaginary and fantastic', 'the fishing
enquiry', 'outcome of a desperate and frustrated mind'. Except expressing our view
that those remarks are not warranted, we refrain from making any more comment.
77. Mr. Parasaran made a mordacious criticism articulating that the impassioned and
impetuous police officers in order to show their loyalty to the third respondent, Ch.
Devi Lal had over-stepped their permissible limits in taking a rash decision in
registering the F.I.R, and commencing the investigation and that the said First
Information Report bears on its face 'the stamp of hurry and want of care'. He, in this
connection, drew our attention to an observation of the High Court which reads thus:
Over zealous police officers, who tried to be more loyal to the king i.e. respondent No. 2
than the king himself however fell into the trap laid by respondent No. 5 and ordered
registration of the case and its investigation without any clue....
(Respondents 2 and 5 mentioned in the above observation are Ch. Devi Lal and
Dharam Pal respectively).
78. In a perfect system of prevention and detection of crimes, undeniably the
paramount duty of a police officer to whom the commission of a cognizable offence is
reported, is to register a case without causing any delay and promptly commence the
investigation without perverting or subverting the law. When such is the accepted
principle, can it be said that the police officers in the instant case have over-zealously
taken a hasty decision by misusing their positions in registering the case and
commencing the investigation? To answer this query, let us recapitulate some salient
facts on this aspect. The complainant, Dharam Pal, presented the complaint on
12.11.1987 before Ch. Devi Lal whose officer on special duty marked it to the DGP on
the same day. The DGP sent it with his endorsement dated 12.11.1987 to the S.P.
Hissar, who received it on 21.11.1987. The S.P. on the same day made the
endorsement "Please register a case and investigate". In the affidavit filed before the
High Court, the S.P. has stated that as there were serious allegations of corruption
against Ch. Bhajan Lal in the complaint constituting a prima-facie case Under
Section 5(2) of the Act, he made his endorsement on the same day and marked it to
the SHO under his signature and that he, then, summoned the SHO and handed over

the complaint to him and the SHO also went through the contents of the complaint and
was of the opinion that a prima facie case Under Section 5(2) of the Act and Under
Sections 161 and 165 IPC has been made out and that the SHO took the complaint
and left for his station for further necessary action. The SHO in his affidavit filed before
the High Court has corroborated the version of the S.P. in its entirety. The conduct of
the SHO indicates that he without losing any time registered the case and commenced
the investigation by proceeding to the 'spot' accompanied by armed constables. The
allegations in the complaint cover the period commencing from 1969 and ending with
1986 as noted in the F.I.R. Be it noted that by June 1987, Ch. Devi Lal became the
Chief Minister. The complaint was presented by Dharam Lal nearly 5 months after Devi
Lal became the Chief Minister.
79. The gravamen of the accusation is that Ch. Bhajan Lal has amassed huge assets by
misusing his ministerial authority earlier to 1986 which assets are disproportionate to
his known and licit sources of income. It has been repeatedly pointed out that mere
possession of any pecuniary resources or property is by itself not an offence, but it is
the failure to satisfactorily account for such possession of pecuniary resources or
property that makes the possession objectionable and constitutes the offence within
the ambit of Section 5(1)(e) of the Act. therefore, a police officer with whom an
investigation of an offence Under Section 5(1)(e) of the Act is entrusted should not
proceed with a pre-conceived idea of guilt of that person indicted with such offence
and subject him to any harassment and victimisation, because in case the allegations
of illegal accumulation of wealth are found during the course of investigation as
baseless, the harm done not only to that person but also to the office, he held will be
incalculable and inestimable.
80. In this connection, it will be appropriate to recall the views expressed by Mitter, J.
in Sirajuddin v. State of Madras : 1971CriLJ523 in the following words:
Before a public servant, whatever be his status, is publicly charged with acts of
dishonesty which amount to serious misdemeanour or misconduct of the type alleged in
this case and a first information is lodged against him, there must be some suitable
preliminary enquiry into the allegations by a responsible officer. The lodging of such a
report against a person specially one who like the appellant occupied the top position in
a department, even if baseless, would do incalculable harm not only to the officer in
particular but to the department he belonged to, in general....The means adopted no less
than the end to be achieved must be impeccable.
81. Mudholkar, J in a separate judgment in The State of Uttar Pradesh v. Bhagwant
Kishore Joshi : 1964CriLJ140 while agreeing with the conclusion of Subba Rao, J (as
he then was) has expressed his opinion stating:
In the absence of any prohibition in the Code, express or implied, I am of opinion that it
is open to a police officer to make preliminary enquiries before registering an offence and
making a full scale investigation into it.
82. We are in agreement with the views, expressed by Mitter, J and Mudholker, J in the
above two decisions.
83. Now coming to the present case, we regret to note that the SP seems to have
exhibited some over-enthusiasm, presumably to please 'some one' and had directed
the SHO to register the case and investigate the same even on the very first day of the

receipt of the complaint from the DGP, in whose office the complaint was lying for
nearly 9 days. This unprecedented over-enthusiasm shown by the S.P., without
disclosing the reasons for making an order entrusting the investigation to the SHO who
is not a designated officer Under Section 5A(1), about which we shall advert to in
detail in the ensuing part of the judgment, really shocks ones' sense of justice and fair
play even though the untested allegations made in the complaint require a thorough
investigation. Still, it is an inexplicable riddle as to why the S.P. had departed from the
normal rule and hastily ordered the S.H.O to investigate the serious allegations,
levelled against a former Chief Minister and a Minister in the Cabinet of the Central
Government on the date of the registration of the case. However, this conduct of the
S.P. can never serve as a ground for quashing this F.I.R.
84. The nagging question that comes up for examination more often than not is under
what circumstances and in what categories of cases, a criminal proceeding can be
quashed either in exercise of the extraordinary powers of the High Court under
Article 226 of the Constitution of India or in the exercise of the inherent powers of the
High Court Under Section 482 of the Code. This question has often been hotly debated
before this Court and various High Courts. Though in a series of decisions, this
question has been answered on several occasions by this apex court, yet the same still
comes up for consideration and is seriously agitated.
85. Mr. Rajinder Sachhar and Mr. R.K. Garg vehemently attacked the judgment under
appeal contending that the High Court in the exercise of its extra-ordinary jurisdiction
under Article 226 should not have interfered with the unbridled power of the police
officials and quashed the entire proceedings from the stage of the registration of the
case especially when the allegations made in the complaint limpidly constitute offences
both under the Prevention of Corruption Act and the Indian Penal Code and this
unjustifiable interference is in clear violation of the principles laid down by this Court in
a host of decisions. In support of their submissions, they drew our attention to a
catena of decisions, of which we will presently refer to a few.
86. The Judicial Committee in its oft-quoted decision, namely, King Emperor v. Khwaja
Mazir Ahmad (Albeit) though strongly observed that the judiciary should not interfere
with the police in matters which are within their province, has qualified the above
statement of law by saying:
No doubt, if no cognizable offence is disclosed, and still more, if no offence of any kind is
disclosed, the police would have no authority to undertake an investigation.
87. The above observation shows that an investigation can be quashed if no cognizable
offence is disclosed by the F.I.R.
88. Gajendragadkar, J. speaking for the Court while considering the inherent powers of
the High Court in quashing the First Information Report Under Section 561-A of the old
Code (corresponding to Section 482 of the new Code) in R.P. Kapur v. The State of
Punjab (cited above) at page 393 made the following observation:
Cases may also arise where the allegations in the First Information Report or the
complaint, even if they are taken at their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases no question of appreciating evidence
arises; it is a matter merely of looking at the complaint or the First Information Report to
decide whether the offence alleged is disclosed or not. In such cases, it would be

legitimate for the High Court to hold that it would be manifestly unjust to allow the
process of the criminal court to be issued against the accused person.
89. In the case of State of West Bengal v. S.N. Basak : [1963]2SCR52 the accused
therein contended that the statutory power of investigation given to police under
Chapter XIV of the Code is not available in respect of an offence triable under the West
Bengal Criminal Law Amendment (Special Courts) Act 1949 and that being so, the
investigation undertaken by the police was without jurisdiction. The Court while
negativing that contention and holding that the application filed by the accused Under
Section 439 and Section 561-A of the old Code was liable to be dismissed, observed
that the statutory powers given to the police Under Sections 154 and 156 of the Code
to investigate into the circumstances of an alleged cognizable offence without authority
from a magistrate cannot be interfered with by the exercise of power Under
Section 439 or under the inherent power conferred by Section 561-A of the old Code.
But in that case, no question arose as to whether the allegations in the FIR disclosed
any offence at all.
90. In S.N. Sharma v. Bipen Kumar Tiwari and Ors. (supra) a First Information Report
was lodged naming an Additional District Magistrate (Judicial) as a principal accused.
His application Under Section 159 of the Code asking that the Judicial Magistrate
should himself conduct a preliminary enquiry was dismissed. However, the Court has
pointed out thus:
It appears to us that, though the CrPC gives to the police unfettered power to investigate
all cases where they suspect that a cognizable offence has been committed, in
appropriate cases an aggrieved person can always seek a remedy by invoking the power
of the High Court under Article 226 of the Constitution under which, if the High Court
could be convinced that the power of investigation has been exercised by a police officer
mala fide, the High Court can always issue a writ of mandamus restraining the police
officer from misusing his legal powers. The fact that the Code does not contain any other
provision giving power to a Magistrate to stop investigation by the police cannot be a
ground for holding that such a power must be read in Section 159 of the Code.
91. In Hazari Lal Gupta v. Rameshwar Prasad and Anr. etc. : 1972CriLJ298 , this Court
has stated thus:
In exercising jurisdiction Under Section 561-A of the Criminal Procedure Code, the High
Court can quash proceedings if there is no legal evidence or if there is any impediment
to the institution or continuance of proceedings but the High Court does not ordinarily
inquire as to whether the evidence is 'reliable or not'. Where again, investigation into the
circumstances of an alleged cognizable offence is carried on under the provisions of the
Criminal Procedure Code, the High Court does not interfere with such investigation
because it would then be the impeding investigation and jurisdiction of statutory
authorities to exercise power in accordance with the provisions of the Criminal Procedure
Code.
92. In Jehan Singh v. Delhi Administration : 1974CriLJ802 , the application filed by
the accused Under Section 561-A of the old Code for quashing the investigation was
dismissed as being premature and incompetent on the finding that prime facie, the
allegations in the FIR, if assumed to be correct, constitute a cognizable offence.

93. This Court in Amar Nath v. State of Haryana : 1977CriLJ1891 has pointed out that
the inherent powers of the Court can ordinarily be exercised when there is no express
provision on the subject matter and that when there is an express provision, barring a
particular remedy the Court cannot resort to the exercise of inherent powers.
94. In this connection Madhu Limaye v. State of Maharashtra : 1978CriLJ165 may be
referred to, as this Court has explained the principle, laid down in Amar Nath's case in
somewhat modified and modulated form.
95. In Kurukshetra University and Anr. v. State of Haryana and Anr. : 1977CriLJ1900
on which Mr. Rajinder Sachhar has placed strong reliance, Chandrachud, J as he then
was, while disapproving the quashing of a First Information Report at premature stage
has expressed his view as follows:
It surprises us in the extreme that the High Court thought that in the exercise of its
inherent powers Under Section 482 of the CrPC, it could quash a First Information
Report. The Police had not even commenced investigation into the complaint filed by the
Warden of the University and no proceeding at all was pending in any Court in pursuance
of the F.I.R. It ought to be realised that inherent powers do not confer an arbitrary
jurisdiction on he High Court to act according to whim or caprice. That statutory power
has to be exercised sparingly, with circumspection and in the rarest of rare cases.
96. The Supreme Court in State of Bihar and Anr. v. J.A.C. Saldanha and Ors. (supra)
examined the question whether, when the investigation was in progress, the High
Court was justified in interfering with the investigation and prohibiting or precluding
further investigation in exercise of its extraordinary jurisdiction under Article 226 of the
Constitution. On the facts of that case, this Court set aside the order of the High Court
quashing the order of the Magistrate in postponing the consideration of the report
submitted to him till the final report of completion of further investigation, directed by
the State Government was submitted to him and held that the High Court in exercise
of its extraordinary jurisdiction committed a grave error in giving the direction virtually
amounting to mandamus to close the case before the investigation was complete.
97. See also Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and Ors. :
1983CriLJ172 .
98. The classic exposition of the law is found in State of West Bengal and Ors. v.
Swapan Kumar Guha and Ors. (cited above). In this case, Chandrachud, CJ in his
concurring separate judgment has stated that "if the FIR does not disclose the
commission of a cognizable offence, the Court would be justified in quashing the
investigation on the basis of the information as laid or received". Justice A.N. Sen who
wrote the main judgment in that case with which Chandrachud, CJ and Varadarajan, J.
agreed has laid the legal proposition as follows:
...the legal position is well-settled. The legal position appears to be that if an
offence is disclosed, the Court will not normally interfere with an investigation
into the case and will permit investigation into the offence alleged to be
completed; if, however, the materials do not disclose an offence, no
investigation should normally be permitted....
Once an offence is disclosed, an investigation into the offence must necessarily
follow in the interests of justice. If, however, no offence is disclosed , an

investigation cannot be permitted, as any investigation, in the absence of any

offence being disclosed, will result in unnecessary harassment to a party, whose
liberty and property may be put to jeopardy for nothing. The liberty and
property of any individual are sacred and sacrosanct and the Court zealously
guards them and protects them. An investigation is carried on for the purpose of
gathering necessary materials for establishing and proving an offence which is
disclosed. When an offence is disclosed, a proper investigation in the interests
of justice becomes necessary to collect materials for establishing the offence,
and for bringing the offender to book. In the absence of a proper investigation
in a case where an offence is disclosed, the offender may succeed in escaping
from the consequences and the offender may go unpunished to the detriment of
the cause of justice and the society at large. Justice requires that a person who
commits an offence has to be brought to book and must be punished for the
same. If the Court interferes with the proper investigation in a case where an
offence has been disclosed, the offence will go unpunished to the serious
detriment of the welfare of the society and the cause of justice suffers. It is on
the basis of this principle that the Court normally does not interfere with the
investigation of a case where an offence has been disclosed....
Whether an offence has been disclosed or not must necessarily depend on the facts
and circumstances of each particular case.... If on a consideration of the relevant
materials, the Court is satisfied that an offence is disclosed, the Court will normally not
interfere with the investigation into the offence and will generally allow the
investigation into the offence to be completed for collecting materials for proving the
offence.
99. But in the above case, this Court as we have pointed out earlier, quashed the
proceedings on the ground that the allegations made in the complaint did not
constitute an offence within the ambit of the provisions of the Act under which the
respondents/accused therein were prosecuted.
100. Fazal Ali, J. reiterating his earlier view in Smt. Nagawwa v. Veer anna
Shivalingappa Konjalgi and Ors. :[1976] SCR 123 wherein he has given certain
category of cases in which an order of the Magistrate issuing process against the
accused can be quashed or set aside and further stating that the same principle laid
down in that decision would apply mutatis mutandis to a criminal complaint also, has
explained the position of law in Pratibha Rani v.Suraj Kumar and Anr. : 1985CriLJ817
as follows:
It is well settled by a long course of decisions of this Court that for the purpose of
exercising its power Under Section 482 Cr. P.C. to quash a FIR or a complaint the High
Court would have to proceed entirely on the basis of the allegations made in the
complaint or the documents accompanying the same per se. It has no jurisdiction to
examine the correctness or otherwise of the allegations.
101. Speaking for the Bench, Ranganath Mishra, J as he then was in Madhavrao Jiwaji
Rao Scindia and Ors. v. Sambhajirao Chandro-jirao Angre and Ors. 8 : 1988CriLJ853
has expounded the law as follows:
The legal position is well settled that when a prosecution at the initial stage is asked to
be quashed, the test to be applied by the court is as to whether the uncontroverted
allegations as made prima facie establish the offence. It is also for the court to take into

consideration any special features which appear in a particular case to consider whether
it is expedient and in the interest of justice to permit a prosecution to continue. This is
so on the basis that the court cannot be utilised for any oblique purpose and where in
the opinion of the court chances of an ultimate conviction is bleak and, therefore, no
useful purpose is likely to be served by allowing a criminal prosecution to continue, the
Court may while taking into consideration the special facts of a case also quash the
proceedings even though it may be at a preliminary stage.
102. Venkatachaliah, J. in State of Bihar v. Murad Ali Khan and Ors. : 1989CriLJ1005
has stated that the jurisdiction Under Section 482 of the Code has to be exercised
sparingly and with circumspection and has given the working that in exercising that
jurisdiction, the High Court should not embark upon an enquiry whether the allegations
in the complaint are likely to be established by evidence or not.
103. See also Talab Haji Hussain v. Madhukar Purshottam Mondekar and Anr. :
1958CriLJ701 ; L.U. Jadhav v. Shankarrao Abasaheb Pawar : [1983]3SCR762 and J.P.
Sharma v. Vinod Kumar Jain and Ors. : 1986CriLJ917 .
104. Mr. Parasaran, according to whom the allegations in the present case do not make
out an offence, drew our attention to a recent judgment of this Court in State of U.P.
v. V.R.K. Srivastava and Anr. : 1989CriLJ2301 to which one of us (S. Ratnavel
Pandian, J.) was a party. In that case, it has been ruled that if the allegations made in
the FIR, taken on the face value and accepted in their entirety, do not constitute an
offence, the criminal proceedings instituted on the basis of such FIR should be
quashed. The principle laid down in this case does not depart from the proposition of
law consistently propounded in a line of decisions of this Court and on the other hand
it reiterates the principle that the Court can exercise its inherent jurisdiction of
quashing a criminal proceeding only when the allegations made in the FIR, do not
constitute an offence and that it depends upon the facts and circumstances of each
particular case.
105. In the backdrop of the interpretation of the various relevant provisions of the
Code under Chapter XIV and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the extra-ordinary power under
Article 226 or the inherent powers Under Section 482 of the Code which we have
extracted and reproduced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent abuse of the
process of any Court or otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do not
prima-facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if
any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers Under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as contemplated Under
Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
accused.
6. Where there is an express legal bar engrafted in any of the provisions of the
Code or the concerned Act (under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge.
106. We also give a note of caution to the effect that the power of quashing a criminal
proceeding should be exercised very sparingly and with circumspection and that too in
the rarest of rare cases; that the Court will not be justified in embarking upon an
enquiry as to the reliability or genuineness or otherwise of the allegations made in the
F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the Court to act according to its whim or caprice.
107. It may be true, as repeatedly pointed out by Mr. Parasaran, that in a given
situation, false and vexatious charges of corruption and venality may be maliciously
attributed against any person holding a high office and enjoying a respectable status
thereby sullying his character, injuring his reputation and exposing him to social
ridicule with a view to spite him on account of some personal rancour, predilections
and past prejudices of the complaint. In such a piquant situation, the question is what
would be the remedy that would redress the grievance of the verily affected party? The
answer would be that the person who dishonestly makes such false allegations is liable
to be proceeded against under the relevant provisions of the Indian Penal Code-namely
Under Sections 182 or211 or 500 besides becoming liable to be sued for damages.
108. Reverting to the present case, the allegations made in the complaint, in our
considered opinion, do clearly constitute a cognizable offence justifying the registration
of a case and an investigation thereon and this case does not fall under any one of the
categories of cases formulated above calling for the exercise of extraordinary or
inherent powers of the High Court to quash the F.I.R. itself.
109. It was then urged by Mr. Parasaran with a considerable force and insistence that
the entire proceedings against Ch. Bhajan Lal on account of the acrimonious political
rivalry is vitiated either on being tainted with a mala fides or due to lack of bona fide

and, therefore, the judgment impugned quashing the entire proceedings should not be
interfered with. Much reliance was placed in support of the above submission on three
decisions, namely S. Pratap Singh v. The State of Punjab 3 : (1966)ILLJ458SC ; State
of Haryana v. Rajindra Sareen : (1972)ILLJ205SC and Express Newspapers Pvt. Ltd.
and Ors. v. Union of India and Ors. : [1985] 3 SCR 382.
110. We went through the entire materials very scrupulously but we are not persuaded
to hold that the allegations of mala fides or lack of bona fide are substantiated and
hence the decisions cited in this behalf cannot be availed of. It may not be out of place
to mention here that when the third respondent, Ch. Devi Lal in the SLP was given up
from the array of parties by the appellant, no objection was raised on behalf of Ch.
Bhajan Lal. In fact, the learned Judge of the High Court before whom a similar
contention was raised has rightly negatived that contention and held that the plea of
mala fide as against Ch. Devi Lal is not available. Hence there is no merit in this
contention.
111. No doubt, there was no love lost between Ch. Bhajan Lal and Dharam Pal. Based
on this strained relationship, it has been then emphatically urged by Mr. K. Parasaran
that the entire allegations made in the complaint due to political vendetta are not only
scurrilous and scandalous but also tainted with mala fides, vitiating the entire
proceedings. As it has been repeatedly pointed out earlier the entire matter is only at a
premature stage and the investigation is not yet proceeded with except some
preliminary effort taken on the date of the registration of the case, that is on
21.11.1987. The evidence has to be gathered after a thorough investigation and
placed before the Court on the basis of which alone the Court can come to a conclusion
one way or the other on the plea of mala fides. If the allegations are bereft of truth
and made maliciously, we are sure, the investigation will say so. At this stage, when
there are only allegations and recriminations but no evidence, this Court cannot
anticipate the result of the investigation and render a finding on the question of mala
fides on the materials at present available. therefore, we are unable to see any force in
the contention that the complaint should be thrown overboard on the mere
unsubstantiated plea of mala fides. Even assuming that Dharam Pal has laid the
complaint only on account of his personal animosity, that, by itself, will not be a
ground to discard the complaint containing serious allegations which have to be tested
and weighed after the evidence is collected. In this connection, the following view
expressed by Bhagwati, CJ in Sheonandan Paswan v. State of Bihar and Ors. :
1987CriLJ793 may be referred to.
It is a well established proposition of law that a criminal prosecution, if otherwise,
justifiable and based upon adequate evidence does not become vitiated on account of
mala fides or political vendetta of the first informant or the complainant.
Beyond the above, we do not wish to add anything more.
112. It was again contended that mala fides are writ large on the extra-ordinary
interest evinced by the police officers and the hasty direction given by the S.P.
Needless to say that the question of mala fide exercise of power will assume
significance only if an authority acts for unauthorised purpose. The proper test to be
applied in such a case is as to what is the dominant purpose for which the power is
exercised. The principle of dominant purpose is explained in the following decisions:

113. The King v. Minister of Health [1929] 1 K.B. 619; Rex v. Brighton Corporation exparte Shoosmith 96 L.T. 762; Earl Fitzwilliam's Wentworth Estate Co. Ltd. v. Minister of
Town and Country Planning [1951] 2 K.B. 284 and P.V. Jagannath Rao and Ors.
v. State of Orissa and Ors. : [1968]3SCR789 .
114. Applying the test, laid down in the above decisions to the present case, we are of
the opinion that the dominant purpose of registration of the case and the intended
follow up action are only to investigate the allegations and present a case before the
Court, if Sufficient evidence in support of those allegations are collected but not to
make a character assassination of Ch. Bhajan Lal and their relatives. therefore, we are
not able to see any substance in this submission.
115. We have, so far, made a detailed and searching analysis on the legal issues with
regard to the statutory duty of an Officer Incharge of a police station in registering the
First Information Report and commencing the investigation thereon as well the
principles relating to the exercise of extra-ordinary and inherent powers of the High
Court in quashing either the FIR or the entire criminal proceedings as the case may be;
and bearing in mind the enunciation of law, we have given our anxious consideration
and careful thought to all the contentions made by all the learned Counsel with
considerable force and emphasis. The resultant and inescapable logical conclusion
which we unreservedly arrive at is that the order of the High Court quashing the First
Information Report, viewed from any angle, cannot be sustained both on the question
of law and facts. Consequently, we set aside that part of the judgment of the High
Court quashing the First Information Report.
116. Lastly, a fervent, but inexorable plea was made requesting this Court to take
judicial notice of the fact that the Justice Jaswant Singh Commission, appointed to
enquire into the allegations of disproportionate assets of Ch. Bhajan Lal through
corrupt means found that these allegations were baseless. Both Ch. Devi Lal and
Dharam Pal in their affidavits filed before the High Court have stated that the
allegations in the FIR are quite different from those which was the subject matter of
enquiry before the Justice Jaswant Commission. Be that as it may, we are not inclined
to give any finding one way or other merely on the report of the Justice Jaswant Singh
Commission by taking judicial notice of the same.
117. During the course of the hearing of this appeal as we have entertained a doubt as
to the validity of the statutory power of the Inspector of Police, the third appellant
herein who is not a designated officer to investigate this case registered Under
Section 5(2) of the Act (presumably Section 5(1)(e) read with Section5(2) and Under
Sections 161 and 165 IPC in the teeth of the mandatory provisions of Section 5A and
in the light of the observations of this Court made in H.N. Rishbud and Inder Singh
v. The State of Delhi : 1955CriLJ526 and The State of Madhya Pradesh v. Mubarak
Ali :[1959] 2 SCR 201, all the learned Counsel addressed their arguments on this
point at the instance of this Court. Though initially, it was submitted on behalf of the
State (the first appellant herein) that the order of the S.P. dated 21.11.1987 directing
the Inspector to investigate the case would fall within the purview of the provisos to
Section 5A, subsequently two Government orders issued by the Government of
Haryana-one dated 26.7.1975 authorising all the Inspectors of Police under the
administrative control of the Inspector General of Police, Haryana, to investigate
offences Under Section 5 of the Act and Anr. dated 19th April 1988 authorising all the
Inspectors of Police posted in the Chief Minister's Flying Squad, Haryana, Chandigarh
for the purpose of the first proviso to Section 5A(1) of the Act. It is pertinent to note

that both the government orders were issued in exercise of the powers, conferred by
the first provisos to Sub-section (1) of Section5(A) of the Act.
118. Section 5A(1) of the Act with the relevant provisos reads thus:
Notwithstanding anything contained in the CrPC, 1898 (5 of 1898, no police
officer below the rank,(a) in the case of the Delhi Special Police Establishment, of an Inspector
of Police;
(b) in the presidency-towns of Calcutta and Madras, of an Assistant
Commissioner of Police;
(c) in the presidency town of Bombay of a Superintendent of Police; and
(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any
offence punishable Under Section 161, Section 165 or Section 165A of
the Indian Penal Code (45 of 1860) or Under Section 5 of this Act without
the order of a Presidency Magistrate or a Magistrate of the first class, as
the case may be, or make any arrest therefore without a warrant:
Provided that if a police officer not below the rank of an Inspector
of Police is authorised by the State Government in this behalf by
general or special order, he may also investigate any such offence
without the order of a Presidency Magistrate or a Magistrate of the
first class, as the case may be, or make arrest therefore without a
warrant:
Provided further that an offence referred to in Clause (e) of Subsection (1) of Section 5 shall not be investigated without the order
of a police officer not below the rank of a Superintendent of Police.
119. Section 5A of the Act as it originally stood, was inserted by the (Second
Amendment) Act 59 of 1952 based on the recommendations of the Committee of
Members of Parliament under the chairmanship of Dr. Bakshi Tek Chand. The said
section as it stands now was substituted by Act 40 of 1964, the main object of which is
to protect the public servant against harassment and victimisation. (See The State of
M.P. v. Mubarak Ali (albeit). In A.C. Sharma v. Delhi Administration : 1973CriLJ902 ,
Dua, J said that the scheme of this provision is for effectively achieving the object of
successful investigation into the serious offences mentioned in Section 5 of the Act
without unreasonably exposing the public servant concerned to frivolous and vexatious
proceedings. A Constitutional Bench of this Court in A.R. Antulay v. R.S. Nayak :
1984CriLJ647 has observed that "Section 5A is a safeguard against investigation .of
offences by public servants, by petty or lower rank police officer."
120. According to Section 5A, notwithstanding anything contained in the Code, no
police officer below the rank specified in Clauses (a) to (d) of Section 5A(1), shall
investigate any offence punishable Under Sections 161, 165 or 165A of the IPC or
Under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate
of the first class as the case may be or make arrest therefore without a warrant. There
are two provisos to that section. As per the first proviso, if a police officer not below

the rank of an Inspector of Police is authorised by the State Government, either by

general or special order, he may investigate any such offence without the order of a
Magistrate or make arrest therefore without a warrant. According to the second
proviso, an offence referred to in Clause (e) of Sub-section (1) of Section 5 shall not
be investigated without the order of a police officer not below the rank of a
Superintendent of Police.
121. It means that a police officer not below the rank of an Inspector of Police
authorised by the State Government in terms of the first provisos can take up the
investigation of an offence referred to in Clause (e) of Section 5(1) only on a separate
and independent order of a police officer not below the rank of a Superintendent of
Police. To say in other words, a strict compliance of the second proviso is an additional
legal requirement to that of the first proviso for conferring a valid authority on a police
officer not below the rank of an Inspector of Police to investigate an offence falling
under Clause (e) of Section 5(1) of the Act. This is clearly spelt out from the
expression "further provided" occurring in the second proviso.
122. A conjoint reading of the main provision, 5A(1) and the two provisos thereto,
shows that the investigation by the designated police officers is the rule and the
investigation by an officer of a lower rank is an exception.
123. It has been ruled by this Court in several decisions that Section 5A of the Act is
mandatory and not directory and the investigation conducted in violation thereof bears
the stamp of illegality but that illegality committed in the course of an investigation
does not affect the competence and the jurisdiction of the Court for trial and where the
cognizance of the case has in fact been taken and the case is proceeded to termination
the validity of the proceedings with the preceding investigation does not vitiate the
result unless miscarriage of justice has been caused thereby. See H.N. Rishbud and
Inder Singh v. The State of Delhi (supra); Major E.G. Barsay v. The State of Bombay:
1961CriLJ828 ; Munna Lal v. State of Uttar Pradesh : 1964CriLJ11 ; S.N. Bose v. State
of Bihar : 1968CriLJ1484a ; Muni Lal v Delhi Administration: 1971CriLJ1153 and
Khandu Sonu Dhobi and Anr. v. State of Maharashtra : 1972CriLJ593 . However, in
Rishbud's case and Muni Lal's case it has been ruled that if any breach of the said
mandatory provision relating to investigation is brought to the notice of the Court at an
early stage of the trial, the Court will have to consider the nature and extent of the
violation and pass appropriate orders as may be called for to rectify the illegality and
cure the defects in the investigation.
124. Coming to the facts of the present case under consideration, the investigation did
not proceed and could not be proceeded with, since the High Court by an interlocutory
order restrained the investigation even at the initial stage, i.e. on the date when Rule
Nisi was issued in the Writ Petition. therefore, it is the appropriate stage for
examination of the question as to whether the necessary requirements contemplated
Under Section 5A(1) in permitting the Inspector of Police, are strictly complied with or
not.
125. For the proper understanding of the reasoning which we would like to give
touching the question of the validity of the authority of the third appellant, we would
like to reproduce the Government order dated 26th July 1975 which reads as follows:

HARYANA GOVERNMENT
HOME DEPARTMENT
ORDER

Conferred by the first proviso to Sub-section (1) of Section 5A of the Prevention

of Corruption Act, 1947, the Governor of Haryana hereby authorises all the
Inspectors of Police under the administrative control of the Inspector General of
Police, Haryana to investigate offences Under Section 5 of the said Act.
S.D. Bhandari
Secretary to Government, Haryana
Home Department.
126. The subsequent Government Order dated 19.4.1988 is on the same line of the
above Government Order.
127. On the strength of the above Government Order of 1975, it has been rightly
contended that the third appellant (Inspector of Police), though not a designated
officer has been legally authorised by the State Government in exercise of its powers
under the first proviso of Section 5A(1) to investigate the offences falling Under
Section 5 of the Act, namely, the offences enumerated in Clauses (a) to (e) of
Section 5(1) of the Act.
128. Now what remains for consideration is whether there is any valid order of the S.P.
permitting the third appellant to investigate the offence falling under Clause (e) of
Sub-section (1) of Section 5. As we have already mentioned in the earlier part of this
judgment, the S.P. (the second appellant) has given the one word direction on
21.11.1987 'investigate'. The question is whether the one word direction 'investigate'
would amount to an 'Order' within the meaning of second proviso of Section 5A(1).
129. In H.N. Rishbud's case (supra) at page 1165 while examining the order of a
Magistrate contemplated Under Section 5A(1), it has been observed:
When a Magistrate is approached for granting such permission he is expected to satisfy
himself that there are good and sufficient reasons for authorising an officer of a lower
rank to conduct the investigation. The granting of such permission is not to be treated by
a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion
having regard to the policy underlying it. In our opinion, therefore, when such a breach
is brought to the notice of the Court at an early stage of the trial the Court will have to
consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly....
130. The above dictum has been approved in Mubarak Ali's case the facts of which
disclose that the District Magistrate before whom an application was submitted by the
Sub-Inspector seeking permission Under Section 5A passed the order reading
"permission granted". Subba Rao, J. as he then was while speaking for the Bench
disapproved such casual order and expressed that the Magistrate did not realise the
significance of this order giving permission but only mechanically issued the order and
stated thus:

...in a case where an officer rather than the designated officer, seeks to make an
investigation, he should get the order of a Magistrate empowering him to do so before he
proceeds to investigate and it is desirable that the order giving the permission should
ordinarily, on the face of it, disclose the reasons for giving the permission.
131. Hegde, J in S.N. Bose's case following the maxim in Mubarak Ali's case has
expressed his opinion in the following words:
It is surprising that even after this Court pointed out the significance of Section 5A in
several decisions there are still some Magistrates and police officers who continue to act
in a casual manner. It is obvious that they are ignorant of the decisions of this Court.
132. The conspectus of the above decisions clearly that the granting of permission
Under Section 5A authorising an officer of lower rank to conduct the investigation is
not to be treated by a Magistrate as a mere matter of routine, but it is an exercise of
his judicial discretion having regard to the policy underlying and the order giving the
permission should, on the face of it, disclose the reasons for granting such permission.
It is, therefore, clear in the light of the above principle of law that the Superintendent
of Police or any police officer of above rank while granting permission to a nondesignated police officer in exercise of his power under the second proviso to Section
5A(1), should satisfy himself that there are good and sufficient reasons to entrust the
investigation with such police officer of a lower rank and record his reasons for doing
so; because the very object of the legislature in enacting Section 5 A is to see that the
investigation of offences punishable Under Section 161, 165 or 165A of Indian Penal
Code as well as those Under Section 5 of the Act should be done ordinarily by the
officers designated in Clauses (a) to (d) of Section 5A(1). The exception should be for
adequate reasons which should be disclosed on the face of the order. In this
connection, it is worthy to note that the strict compliance with Section 5A(1) becomes
absolutely necessary, because Section 5A(1) expressly prohibits police officers, below
certain ranks, from investigating into offences Under Sections 161, 165 and 165A, IPC
and Under Section 5 of the Act without orders of Magistrates specified therein or
without authorisation of the State Government in this behalf and from effecting arrests
for those offences without a warrant. See also AC. Sharma v. Delhi Administration
(supra).
133. In the present case, there is absolutely no reason, given by the S.P. in directing
the SHO to investigate and as such the order of the S.P. is directly in violation of the
dictum laid down by this Court in several decisions which we have referred to above.
Resultantly, we hold that the third appellant, SHO is not clothed with the requisite legal
authority within the meaning of the second proviso of Section 5A(1) of the Act to
investigate the offence under Clause (e) of Section 5(1) of the Act.
134. There is also one more legal hurdle which the prosecution has to overcome in
entrusting this investigation with the SHO. As has been repeatedly mentioned the case
under consideration is not only registered Under Section 5(2) but also Under
Section 161 and 165 IPC. The Government Order authorises the Inspector General of
Police of Haryana state to investigate only the offences falling Under Section 5 of the
Act. therefore, the SHO who has taken up the investigation of the offences inclusive of
those Under Section 161 and 165 IPC is not at all clothed with any authority to
investigate these two offences, registered under the IPC, apart from the offence Under
Section 5(2) of the Act. When Mr. Sachhar was confronted with this legal issue, he
tried to extricate himself from this situation saying that the prosecution would

approach the Magistrate of the first class for obtaining an order Under Section 5A(1)
authorising SHO to investigate the offences under the provisions of the IPC. However,
as the question relating to the legal authority of the SHO is raised even at this initial
stage, we feel that it would be proper and also desirable that the investigation, if at 'all
to be proceeded with in the opinion of the State Government, should proceed only on
the basis of a valid order in strict compliance with the mandatory provision of Section
5A(1).
135. From the above discussion, we hold that (1) as the salutary legal requirement of
disclosing the reasons for according the permission is not complied with; (2) as the
prosecution is not satisfactorily explaining the circumstances which impelled the S.P. to
pass the order directing the SHO to investigate the case; (3) as the said direction
manifestly seems to have been granted mechanically and in a very casual manner,
regardless of the principles of law enunciated by this Court, probably due to blissful
ignorance of the legal mandate and (4) as, above all, the SHO has got neither any
order from the Magistrate to investigate the offences Under Sections 161 and 165 IPC
nor any order from the S.P. for investigation of the offence Under Section 5(1)(e) of
the Prevention of Corruption Act in the manner known to law, we have no other option,
save to quash that order of direction, reading "investigate" which direction suffers from
legal infirmity and also the investigation, if any, so far carried out. Nevertheless, our
order of quashing the direction of the S.P. and the investigation thereupon will not in
any way deter the first appellant, the State of Haryana to pursue the matter and direct
an investigation afresh in pursuance of the F.I.R., the quashing of which we have set
aside, if the State so desires, through a competent police officer, clothed with the legal
authority in strict compliance with Section 5A(1) of the Act.
136. The learned Judges of the High Court before parting with their conclusions not
being "able to resist temptation" of making an observation with a textual passage
which is more or less suggestive of an advice have expressed as follows:
Besides what has been said and observed above, before parting with this case, we have
not been able to resist the temptation of saying that every politician in Haryana may be
the Chief Minister or otherwise, should not while holding office act on the maxim,
'Everything is fair in love and war' but should be sanguine and careful to meet out to his
predecessor, a treatment in the words of Porus, uttered while in chains, on being brought
before Alexander the Great, 'a treatment which a king should meet out to another king'
because it is often said 'as you sow, so shall you reap'.
137. Mr. Rajinder Sachhar and Mr. R.K. Garg submitted with strong intensity of
conviction that the above observation of the learned Judges should not be
countenanced because if such observations, especially in the context of this case
receive judicial recognition, it will lead only to the catastrophe of our democratic
system to the detriment of the welfare of the country and if such observations are
accepted then every successor Government should bury its head like an Ostrich
thereby freely allowing the malfeasance and misfeasance of the former Government to
go un-noticed, un-rectified and the offenders unpunished. According to them there is
absolutely no material for holding that there was any campaign of vilification for
political gain based on personal animus by the successor Government as against the
outgoing Government, particularly when the criminal proceedings are initiated by an
individual.

138. To buttress their submission, they relied on the following decisions dealing with
similar contentions attacking the institution of criminal proceedings characterising
them as the outcome of political vendetta. Those observations being P.V. Jagannath
Rao and Ors. v. State of Orissa and Ors.: [1968]3SCR789 ; Krishna Ballabh Sahay and
Ors. v. Commissioner of Enquiry and Ors. : 1969CriLJ520 ; Sheonandan Paswan
v. State of Bihar and Ors. : 1983CriLJ348 ; Sheonandan Pawan v. State of Bihar and
Ors. : 1987CriLJ793 and A.R. Antulay v. R.S. Nayak and Anr. : 1988CriLJ1661 .
139. It would be appropriate to refer to the observation made by this Court in two of
the above decisions.
140. In Krishna Ballabh Sahay's case at page 393, Hidayatullah, C.J. speaking for the
Constitutional Bench has pointed out:
It hardly needs any authority to state that the inquiry will be ordered not by the Minister
against himself but by some one else. When a Ministry goes out of office, its successor
may consider any glaring charges and may, if justified, order an inquiry. Otherwise, each
Ministry will become a law unto itself and the corrupt conduct of its Ministers will remain
beyond scrutiny.
141. In A.R. Antulay's case at page 673, Sabyasachi Mukharji, J (as he then was)
speaking for himself and two other learned Judges expressed his opinion on a similar
issue in the following words:
...we must remained ourselves that purity of public life is one of the cardinal principles
which must be upheld as a matter of public policy. Allegations of legal infractions and
criminal infractions must be investigated in accordance with law and procedure
established under the Constitution. Even if he has been wronged, if he is allowed to be
left in doubt that would cause more serious damage to the appellant. Public confidence
in public administration should not be eroded any further. One wrong cannot be
remedied by another wrong.
142. We feel that the following observation made by Krishna Iyer, J in State of Punjab
v. Gurdial Singh : [1980]1SCR1071 may be recapitulated in this connection, that
being:
If the use of the power is for the fulfilment of a legitimate object the actuation or
catalysation by malice is not legicidal.
143. In the light of the above decisions of this Court, we feel that the said observations
made in the impugned judgment are unwarranted and the historical anecdote is out of
context and inappropriate. We are afraid if such a view is to be judicially accepted and
approved, then it will be tantamount to laying down as alarming proposition that an
incoming Government under all circumstances, should put its seal of approval to all the
commissions and omissions of the outgoing Government ignoring even glaring lapses
and serious misdeeds and the deleterious and destructive consequences that may
follow therefrom. Hence we are constrained to express our disapproval since the text,
tenor and tone of the above observations leave us with the feeling that such misplaced
sympathy indicated therein appears to have considerably weighed with the learned
Judges in taking the extreme step in quashing the First Information Report. We do not
like to make any more comment except saying that as we have pointed out in our
exordial note, in our democratic polity where the 'Rule of Law' regions no one-however

highly placed he may be-can claim immunity, much-less absolute immunity from the
Law, but he is always under the Law.
144. We set aside the judgment of the High Court quashing the First Information
Report as not being legally and factually sustainable in law for the reasons
aforementioned; but, however, we quash the commencement as well as the entire
investigation, if any, so far done for the reasons given by us in the instant judgment on
the ground that the third appellant (SHO) is not clothed with valid legal authority to
take up the investigation and proceed with the same within the meaning of Section
5A(1) of the Prevention of Corruption Act as indicated in this judgment. Further we set
aside the order of the High Court awarding costs with a direction that the said costs is
payable to the first respondent (Ch. Bhajan Lal) by the second respondent (Dharam
Pal).
145. In the result, the appeal is disposed of accordingly but at the same time giving
liberty to the State Government to direct an investigation afresh, if it so desires,
through a competent Police Officer empowered with valid legal authority in strict
compliance with Section 5 A(1) of the Act as indicated supra. No order as to costs.

Equivalent Citation: 2013XII AD (S.C.) 209, AIR2014SC187, 2014 (1) ALD(Crl.) 159
(SC), 2014 (84) ALLCC 719, 2013ALLMR(Cri)4444, 2013ALLMR(Cri)4444(SC), 2014
(1) ALT (Crl.) 100 (A.P.), 2013BomCR(Cri)680, 2013(4)BomCR(Cri)680, 2014(2) CHN
(SC) 7, 2014CriLJ470, 2013(6)CTC353, 2014(2)GLD355 (SC), 2014(2)GLT(SC)1,
2013(4)J.L.J.R.505, 2014(1)JCC1, JT2013(14)SC399, 2014(2)KCCR1305, 2013 (4)
KHC
552,
2013(4)KLJ686,
2013(4)KLT632(SC),
2014-1-LW(Crl)1,
2013(4)MLJ(Crl)579,
2013(5)MPHT336(SC),
2014(1)N.C.C.161,
2014(I)OLR5,
2014(1)OLR(SC)5, 2013(4)PLJR504, 2013(4)RCR(Criminal)979, 2013(13)SCALE559,
(2014)2SCC1, 2014 (1) SCJ 68, 2013(3)UC2017
IN THE SUPREME COURT OF INDIA
Writ Petition (Criminal) No. 68 of 2008, Contempt Petition (C) No. D26722 of 2008 in
Writ Petition (Criminal) No. 68 of 2008, S.L.P. (Crl.) No. 5986 of 2006, S.L.P. (Crl.) No.
5200 of 2009, Criminal Appeal No. 1410 of 2011 and Criminal Appeal No. 1267 of
2007 (Under Article 32 of the Constitution of India)

Decided On: 12.11.2013

Appellants: Lalita Kumari
Vs.
Respondent: Govt. of U.P. and Ors.
Hon'ble
Judges/Coram:
P. Sathasivam, C.J.I., B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi and S.A.
Bobde, JJ.
Counsels:
For
Appearing
Parties: Mohan
Parasaran,
SG, K.V.
Vishwanathan, A.S.
Chandhiok, Sidharth
Luthra,
ASG, S.B.
Upadhyay, R.K.
Dash, Vibha
Datta
Makhija, Shekhar Naphade, Sr. Advs., Krishna Sarma, V. Madhukar, Subramonium
Prasad, Manjit Singh, Manish Singhvi, AAG, Mona K. Rajvanshi, B.K. Shahi, Anurag
Kashyap, B.P.
Gupta, Ashwani
Kumar, G.
Sivabalamurugan, Anis
Mohammad, Dayanandan
Pandey, L.K.
Pandey, Abhijat
P.
Medh, Shalu
Sharma, Sudarshan
Singh
Rawat,Debasis
Misra, Satya
Siddiqui, Sarfraz
A.
Siddiqui, S.K. Mishra, D.S. Mahra, Ashok Dhamija, Rajiv Nanda, Sonia Dhamija, P.K.
Dey, T.A.
Khan, B.V. Balram
Das,Gaurav
Srivastava, Archana
Singh, Abhisth
Kumar, Vikrant
Yadav, Kamalendra
Mishra, C.D.
Singh, Arjun
Dewan, Supriya
Juneja, Gurmohan Singh Bedi, Anandana Handa, Charul Sarin, Mishra Saurabh, Sanjay
Kharde, Shankar Chillarge, Sachin Patil, Shubhangi Tuli, Asha G. Nair, Ravindra
Keshavrao
Adsure,
Advs.
for
M/s.
Arputham
Aruna
and
Co., Sharmila
Upadhyay, Debasis Mishra, Ena Toli Sema, Hemantika Wahi, Parul Kumari, Anil
Shrivastav, Rituraj Biswas, Sapam Biswajit Meitei, Khwairakpam Nobin Singh, Kamini
Jaiswal, Jatinder Kumar Bhatia, Mukesh Verma, Naresh K. Sharma, P.V. Dinesh, Anitha
Shenoy, Gopal Singh, Manish Kumar, Chandan Kumar, Ritu Raj Biswas, Anil K.
Jha, Riku Sarma, Navnit Kumar, Advs. for M/s. Corporate Law Group, Sumita
Hazarika, Satish Vig, Aruneshwar Gupta, D. Bharathi Reddy, V.G. Pragasam, S.J.
Aristotle, Prabhu
Ramasubramanian, Dharmendra
Kumar
Sinha, Ajay
Pal, R.
Nedumaran, Ranjan
Mukherjee, A.
Subhashini, Monika
Gusain, S.
Thannanjayan, Sudharshan
Singh
Rawat, Rameshwar
Prasad
Goyal, Dinesh
Sharma, Paritosh Anil, Anvita Cowshish, Kuldip Singh,M. Yogesh Kanna, Vanita
Chandrakant
Giri, A.
Shanta
Kumar, Sasikala, K.N.
Madhusoodhanan, R.
Sathish, Vivekta Singh, Tarjit Singh, Vikas Sharma, Vinay Kuhar, Kamal Mohan
Gupta, Amit Lubhaya and Irshad Ahmad, Advs.
Subject: Criminal
Catch Words
Mentioned IN
Relevant
Code of Criminal Procedure, 1973 - Section 154

Section:

Acts/Rules/Orders:
Prevention of Corruption Act; Criminal Law (Amendment) Act, 2013 - Section
13; Police Act, 1861 - Section 44; Delhi Special Police Establishment Act, 1946; Code
of Criminal Procedure, 1973 (CrPC) - Section 2, Code of Criminal Procedure, 1973
(CrPC) - Section 2(4), Code of Criminal Procedure, 1973 (CrPC) - Section 4(2),Code of

Criminal Procedure, 1973 (CrPC) - Section 5, Code of Criminal Procedure, 1973 (CrPC)
- Section 39, Code of Criminal Procedure, 1973 (CrPC) - Section 41, Code of Criminal
Procedure, 1973 (CrPC) - Section 41(1), Code of Criminal Procedure, 1973 (CrPC) Section 55, Code of Criminal Procedure, 1973 (CrPC) - Section 57, Code of Criminal
Procedure, 1973 (CrPC) - Section 91, Code of Criminal Procedure, 1973 (CrPC) Section 151, Code of Criminal Procedure, 1973 (CrPC) - Section 154, Code of Criminal
Procedure, 1973 (CrPC) - Section 154(1), Code of Criminal Procedure, 1973 (CrPC) Section 154(2), Code of Criminal Procedure, 1973 (CrPC) - Section 154(3), Code of
Criminal Procedure, 1973 (CrPC) - Section 155, Code of Criminal Procedure, 1973
(CrPC) - Section 156, Code of Criminal Procedure, 1973 (CrPC) - Section 156(1), Code
of Criminal Procedure, 1973 (CrPC) - Section 156(3), Code of Criminal Procedure,
1973 (CrPC) - Section 157, Code of Criminal Procedure, 1973 (CrPC) - Section
157(1), Code of Criminal Procedure, 1973 (CrPC) - Section 158, Code of Criminal
Procedure, 1973 (CrPC) - Section 159, Code of Criminal Procedure, 1973 (CrPC) Section 160, Code of Criminal Procedure, 1973 (CrPC) - Section 162, Code of Criminal
Procedure, 1973 (CrPC) - Section 163, Code of Criminal Procedure, 1973 (CrPC) Section 164, Code of Criminal Procedure, 1973 (CrPC) - Section 164(5A), Code of
Criminal Procedure, 1973 (CrPC) - Section 165, Code of Criminal Procedure, 1973
(CrPC) - Section 166, Code of Criminal Procedure, 1973 (CrPC) - Section 167, Code of
Criminal Procedure, 1973 (CrPC) - Section 168, Code of Criminal Procedure, 1973
(CrPC) - Section 169, Code of Criminal Procedure, 1973 (CrPC) - Section 170,Code of
Criminal Procedure, 1973 (CrPC) - Section 171, Code of Criminal Procedure, 1973
(CrPC) - Section 172, Code of Criminal Procedure, 1973 (CrPC) - Section 173, Code of
Criminal Procedure, 1973 (CrPC) - Section 173(1), Code of Criminal Procedure, 1973
(CrPC) - Section 173(2), Code of Criminal Procedure, 1973 (CrPC) - Section
173(3), Code of Criminal Procedure, 1973 (CrPC) - Section 173(4), Code of Criminal
Procedure, 1973 (CrPC) - Section 173(5), Code of Criminal Procedure, 1973 (CrPC) Section 173(6), Code of Criminal Procedure, 1973 (CrPC) - Section 173(8), Code of
Criminal Procedure, 1973 (CrPC) - Section 174, Code of Criminal Procedure, 1973
(CrPC) - Section 175, Code of Criminal Procedure, 1973 (CrPC) - Section 176, Code of
Criminal Procedure, 1973 (CrPC) - Section 190, Code of Criminal Procedure, 1973
(CrPC) - Section 190(1), Code of Criminal Procedure, 1973 (CrPC) - Section 200, Code
of Criminal Procedure, 1973 (CrPC) - Section 202, Code of Criminal Procedure, 1973
(CrPC) - Section 202(1), Code of Criminal Procedure, 1973 (CrPC) - Section 204, Code
of Criminal Procedure, 1973 (CrPC) - Section 340, Code of Criminal Procedure, 1973
(CrPC) - Section 438, Code of Criminal Procedure, 1973 (CrPC) - Section 491; Code of
Criminal Procedure, 1898 (CrPC) - Section 154; Code of Criminal Procedure (CrPC),
1861 - Section 139; Code of Criminal Procedure (CrPC), 1872 - Section 112;Indian
Penal Code 1860, (IPC) - Section 64A, Indian Penal Code 1860, (IPC) - Section
121, Indian Penal Code 1860, (IPC) - Section 122, Indian Penal Code 1860, (IPC) Section 123, Indian Penal Code 1860, (IPC) - Section 124, Indian Penal Code 1860,
(IPC) - Section 125, Indian Penal Code 1860, (IPC) - Section 126,Indian Penal Code
1860, (IPC) - Section 166A, Indian Penal Code 1860, (IPC) - Section 302, Indian Penal
Code 1860, (IPC) - Section 326A, Indian Penal Code 1860, (IPC) - Section
326B, Indian Penal Code 1860, (IPC) - Section 354, Indian Penal Code 1860, (IPC) Section 354A, Indian Penal Code 1860, (IPC) - Section 354B, Indian Penal Code 1860,
(IPC) - Section 354C, Indian Penal Code 1860, (IPC) - Section 354D, Indian Penal
Code 1860, (IPC) - Section 370, Indian Penal Code 1860, (IPC) - Section 370A, Indian
Penal Code 1860, (IPC) - Section 376, Indian Penal Code 1860, (IPC) - Section
376A, Indian Penal Code 1860, (IPC) - Section 376B, Indian Penal Code 1860, (IPC) Section 376C, Indian Penal Code 1860, (IPC) - Section 376D, Indian Penal Code 1860,
(IPC) - Section 376E, Indian Penal Code 1860, (IPC) - Section 382, Indian Penal Code

1860, (IPC) - Section 392, Indian Penal Code 1860, (IPC) - Section 498A, Indian Penal
Code 1860, (IPC) - Section 509; Punjab Police Rules, 1934 - Rule 24.1, Punjab Police
Rules, 1934 - Rule 24.5; Uttar Pradesh Police Regulations; State Government
Regulations;Constitution of India - Article 14, Constitution of India - Article
19, Constitution of India - Article 21, Constitution of India - Article 32, Constitution of
India - Article 254(1)
Cases
Referred:
Lalita Kumari v. Government of Uttar Pradesh and Ors. : (2008) 7 SCC 164 : (2008)
14 SCC 337; Lalita Kumari v. Government of Uttar Pradesh and Ors. : (2012) 4 SCC
1; State of Haryana v. Bhajan Lal : 1992 Supp. (1) SCC 335; Ramesh Kumari v. State
(NCT of Delhi) : (2006) 2 SCC 677; Parkash Singh Badal v. State of Punjab : (2007)
1 SCC 1; P. Sirajuddin v. State of Madras : (1970) 1 SCC 595; Sevi v. State of Tamil
Nadu : 1981 Supp SCC 43; Shashikant v. Central Bureau of Investigation : (2007) 1
SCC 630; Rajinder Singh Katoch v. Chandigarh Admn. : (2007) 10 SCC 69; B.
Premanand and Ors. v. Mohan Koikal and Ors. 1 : (2011) 4 SCC 266; Hiralal Rattanlal
Etc. Etc. v. State of U.P. and Anr. Etc. Etc. : (1973) 1 SCC 216; Govindlal Chhaganlal
Patel v. Agricultural Produce Market Committee, Godhra and Ors. : (1975) 2 SCC
482; Ganesh Bhavan Patel and Anr. v. State of Maharashtra : (1978) 4 SCC
371; Aleque Padamsee and Ors. v. Union of India and Ors. : (2007) 6 SCC 171; Ram
Lal Narang v. State (Delhi Administration) : (1979) 2 SCC 322; Lallan Chaudhary and
Ors. v. State of Bihar and Anr. : (2006) 12 SCC 229; State of Uttar Pradesh v.
Bhagwant Kishore Joshi: (1964) 3 SCR 71; Jacob Mathew v. State of Punjab and Anr. :
(2005) 6 SCC 1; Superintendent of Police, CBI v. Tapan Kumar Singh : (2003) 6 SCC
175; Khub Chand v. State of Rajasthan : AIR 1967 SC 1074; State of West Bengal v.
Committee for Protection of Democratic Rights, West Bengal : (2010) 3 SCC 571; H.N.
Rishbud and Inder Singh v. State of Delhi : AIR 1955 SC 196; S.N. Sharma v. Bipen
Kumar
Tiwari :
(1970)
1
SCC
653; Union
of
India
v.
Prakash
P.
HindujaMANU/SC/0446/2003 : (2003) 6 SCC 195; Sheikh Hasib alias Tabarak v.
State of Bihar MANU/SC/0180/1971 : (1972) 4 SCC 773; Ashok Kumar Todi v.
Kishwar Jahan and Ors. MANU/SC/0162/2011 : (2011) 3 SCC 758; Padma Sundara
Rao (Dead) and Ors. v. State of T.N. and Ors. MANU/SC/0182/2002 : (2002) 3 SCC
533; Mannalal Khatic v. The State MANU/WB/0117/1967 : AIR 1967 Cal
478; Mohindro v. State of Punjab MANU/SC/1010/2001 : (2001) 9 SCC 581; Munna
Lal v. State of Himachal Pradesh MANU/HP/0033/1991 : 1992 Crl. L.J.
1558; Giridhari Lal Kanak v. State and Ors. MANU/MP/0620/2001 : 2002 Crl. L.J.
2113; Katteri Moideen Kutty Haji v. State of Kerala MANU/KE/0071/2002 : 2002 (2)
Crimes 143; Maneka Gandhi v. Union of India MANU/SC/0133/1978 : (1978) 1 SCC
248; Chairman Board of Mining Examination and Chief Inspector of Mines and Anr. v.
Ramjee MANU/SC/0061/1977 : (1977) 2 SCC 256; Lalit Mohan Pandey v. Pooran
Singh MANU/SC/0422/2004 : (2004) 6 SCC 626; Prativa Bose v. Kumar Rupendra
Deb Raikat MANU/SC/0251/1963 : (1964) 4 SCR 69; State of Maharashtra v.
Sarangdharsingh Shivdassingh Chavan and Anr. MANU/SC/1055/2010 : (2011) 1
SCC 577; Preeti Gupta v. State of JharkhandMANU/SC/0592/2010 : (2010) 7 SCC
667; Swedish Match AB v. SEBI MANU/SC/0693/2004 : (2004) 11 SCC 641; Madhu
Bala v. Suresh KumarMANU/SC/0806/1997 : (1997) 8 SCC 476; E.P. Royappa v.
State of Tamil Nadu MANU/SC/0380/1973 : (1974) 4 SCC 3; S.M.D. Kiran Pasha v.
Government of Andhra Pradesh MANU/SC/0473/1989 : (1990) 1 SCC 328; D.K. Basu
v. State of W.B. MANU/SC/0157/1997 : (1997) 1 SCC 416; Uma Shankar Sitani v.
Commissioner of Police, Delhi and Ors. : (1996) 11 SCC 714; Francis Coralie Mullin v.
Administrator, Union Territory of Delhi MANU/SC/0517/1981 : (1981) 1 SCC
608; Common Cause, A Registered Society v. Union of India MANU/SC/0437/1999 :

(1999) 6 SCC 667; District Registrar and Collector, Hyderabad v. Canara

Bank MANU/SC/0935/2004 : (2005) 1 SCC 496; Ranjitsing Brahmajeetsing Sharma
v. State of Maharashtra MANU/SC/0268/2005 : (2005) 5 SCC 294;Vineet Narain v.
Union of India MANU/SC/0827/1998 : (1998) 1 SCC 226; Elumalai v. State of Tamil
Nadu MANU/TN/0610/1983 : 1983 LW (CRL) 121; A. Lakshmanarao v. Judicial
Magistrate, Parvatipuram MANU/SC/0076/1970 : AIR 1971 SC 186; State of Uttar
Pradesh v. Ram Sagar Yadav and Ors.MANU/SC/0118/1985 : (1985) 1 SCC
552; Mona Panwar v. High Court of Judicature of Allahabad MANU/SC/0087/2011 :
(2011) 3 SCC 496; Apren Joseph v. State of Kerala MANU/SC/0078/1972 : (1973) 3
SCC 114; King Emperor v. Khwaja Nazir Ahmad MANU/PR/0007/1944 : AIR 1945 PC
18; Thulia Kali v. State of Tamil Nadu MANU/SC/0276/1972 : (1972) 3 SCC
393; Joginder Kumar v. State of U.P. and Ors. MANU/SC/0311/1994 : (1994) 4 SCC
260
Disposition:
Disposed off
Citing

Reference:

Discussed
18
Mentioned
35
Relied On
2

Case
Note:
Criminal Procedure Code, 1973 - Sec. 154 - Whether "a police officer is bound
to register a First Information Report (FIR) upon receiving any information
relating to commission of a cognizable offence under the section or the police
officer has the power to conduct a "preliminary inquiry" in order to test the
veracity of such information before registering the same"? Reference
answered
Details
stated.
(i) Registration of FIR is mandatory under Section 154 of the Code, if the
information discloses commission of a cognizable offence and no preliminary
inquiry
is
permissible
in
such
a
situation.
(ii) If the information received does not disclose a cognizable offence but
indicates the necessity for an inquiry, a preliminary inquiry may be conducted
only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR
must be registered. In cases where preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure must be supplied to the first
informant forthwith and not later than one week. It must disclose reasons in
brief
for
closing
the
complaint
and
not
proceeding
further.
(iv) The police officer cannot avoid his duty of registering offence if
cognizable offence is disclosed. Action must be taken against erring officers
who do not register the FIR if information received by him discloses a
cognizable
offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise
of the information received but only to ascertain whether the information
reveals
any
cognizable
offence.
(vi) As to what type and in which cases preliminary inquiry is to be conducted
will depend on the facts and circumstances of each case. The category of
cases in which preliminary inquiry may be made are as under:
(a)

Matrimonial

(b)
(c)
(d)

disputes/family
Commercial

Medical

disputes
offences

negligence
Corruption

(e) Cases where there is abnormal delay/laches

prosecution, for example, over 3 months delay in
without satisfactorily explaining the reasons for delay.
illustrations and not exhaustive of all conditions
preliminary

cases
cases
in initiating criminal
reporting the matter
The aforesaid are only
which may warrant
inquiry.

(vii) While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time bound and in any
case it should not exceed 7 days. The fact of such delay and the causes of it
must
be
reflected
in
the
General
Diary
entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all
information received in a police station, we direct that all information relating
to cognizable offences, whether resulting in registration of FIR or leading to
an inquiry, must be mandatorily and meticulously reflected in the said Diary
and the decision to conduct a preliminary inquiry must also be reflected, as
mentioned
above.
2. Criminal Procedure Code, 1973 - Sec. 154 - The provision of the section is
mandatory and the concerned officer is duty bound to register the case on the
basis
of
information
disclosing
a
cognizable
offence.
The condition that is sine qua non for recording an FIR under Section 154 of
the Code is that there must be information and that information must disclose

a cognizable offence. If any information disclosing a cognizable offence is led

before an officer in charge of the police station satisfying the requirement of
Section 154(1), the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register a case on
the
basis
of
such
information.
3. Interpretation of Statute - If the provision is unambiguous and the
legislative intent is clear, the Court need not call into it any other rules of
construction - The golden rule of interpretation can be given a go-by only in
cases where the language of the section is ambiguous and/or leads to an
absurdity.
4. Criminal Procedure Code, 1973 - Sec. 39 - The section casts a statutory
duty on every person to inform about commission of certain offences which
includes offences covered by Secs. 121 to 126, 302, 64-A, 382, 392 etc. of the
IPC.
5. Constitution of India, 1950 - Art. 254(1) - Police Act, 1861 - If there is any
inconsistency between the provisions of the Code and the Act, the provisions
of the Code will prevail and the provisions of the Police Act would be void to
the
extent
of
the
repugnancy.
6. F.I.R. - Registration of FIR is mandatory and also that it is to be recorded in
the FIR Book by giving a unique annual number to each FIR to enable strict
tracking of each and every registered FIR by the Superior Police Officers as
well as the competent Court to which copies of each FIR are required to be
sent.
7. Maxim - "Unius est exclusion alterius" - Expression of one thing is the
exclusion
of
another.
8. Criminal Procedure Code, 1973 - Secs. 154, 41 - While registration of FIR is
mandatory, arrest of the accused immediately on registration of FIR is not at
all
mandatory.
The registration of FIR under Section 154 of the Code and arrest of an
accused person under Section 41 are two entirely different things. It is not
correct to say that just because FIR is registered, the accused person can be
arrested immediately. It is the imaginary fear that "merely because FIR has
been registered, it would require arrest of the accused and thereby leading to
loss of his reputation" and it should not be allowed by this Court to hold that
registration of FIR is not mandatory to avoid such inconvenience to some
persons. The remedy lies in strictly enforcing the safeguards available against
arbitrary arrests made by the police and not in allowing the police to avoid
mandatory registration of FIR when the information discloses commission of
a
cognizable
offence.
The condition that is sine qua non for recording an FIR under Section 154 of
the Code is that there must be information and that information must disclose
a cognizable offence. If any information disclosing a cognizable offence.
JUDGMENT

P. Sathasivam, C.J.I.
1. The important issue which arises for consideration in the referred matter is whether
"a police officer is bound to register a First Information Report (FIR) upon receiving
any information relating to commission of a cognizable offence under Section 154 of
the Code of Criminal Procedure, 1973 (in short 'the Code') or the police officer has the
power to conduct a "preliminary inquiry" in order to test the veracity of such
information before registering the same?"
2. The present writ petition, under Article 32 of the Constitution, has been filed by one
Lalita Kumari (minor) through her father, viz., Shri Bhola Kamat for the issuance of a
writ of Habeas Corpus or direction(s) of like nature against the Respondents herein for
the protection of his minor daughter who has been kidnapped. The grievance in the
said writ petition is that on 11.05.2008, a written report was submitted by the
Petitioner before the officer in-charge of the police station concerned who did not take
any action on the same. Thereafter, when the Superintendent of Police was moved, an
FIR was registered. According to the Petitioner, even thereafter, steps were not taken
either for apprehending the accused or for the recovery of the minor girl child.
3. A two-Judge Bench of this Court in, Lalita Kumari v. Government of Uttar
Pradesh and Ors. (2008) 7 SCC 164, after noticing the disparity in registration of
FIRs by police officers on case to case basis across the country, issued notice to the
Union of India, the Chief Secretaries of all the States and Union Territories and Director
Generals of Police/Commissioners of Police to the effect that if steps are not taken for
registration of FIRs immediately and the copies thereof are not handed over to the
complainants, they may move the Magistrates concerned by filing complaint petitions
for appropriate direction(s) to the police to register the case immediately and for
apprehending the accused persons, failing which, contempt proceedings must be
initiated against such delinquent police officers if no sufficient cause is shown.
4. Pursuant to the above directions, when the matter was heard by the very same
Bench in Lalita Kumari v. Government of Uttar Pradesh and Ors. (2008) 14 SCC
337, Mr. S.B. Upadhyay, learned senior counsel for the Petitioner, projected his claim
that upon receipt of information by a police officer in-charge of a police station
disclosing a cognizable offence, it is imperative for him to register a case under
Section 154 of the Code and placed reliance upon two-Judge Bench decisions of this
Court in State of Haryana v. Bhajan Lal MANU/SC/0115/1992 : 1992 Supp. (1)
SCC 335, Ramesh Kumari v. State (NCT of Delhi)MANU/SC/8037/2006 : (2006)
2 SCC 677 and Parkash Singh Badal v. State of Punjab MANU/SC/5415/2006 :
(2007) 1 SCC 1. On the other hand, Mr. Shekhar Naphade, learned senior Counsel for
the State of Maharashtra submitted that an officer in-charge of a police station is not
obliged under law, upon receipt of information disclosing commission of a cognizable
offence, to register a case rather the discretion lies with him, in appropriate cases, to
hold some sort of preliminary inquiry in relation to the veracity or otherwise of the
accusations made in the report. In support of his submission, he placed reliance upon
two-Judge Bench decisions of this Court in P. Sirajuddin v. State of
Madras MANU/SC/0158/1970 : (1970) 1 SCC 595, Sevi v. State of Tamil
NaduMANU/SC/0218/1981 : 1981 Supp SCC 43, Shashikant v. Central Bureau of
Investigation MANU/SC/8639/2006 : (2007) 1 SCC 630, and Rajinder Singh
Katoch v. Chandigarh Admn. MANU/SC/8052/2007 : (2007) 10 SCC 69. In view of
the conflicting decisions of this Court on the issue, the said bench, vide order dated
16.09.2008, referred the same to a larger bench.

5. Ensuing compliance to the above direction, the matter pertaining to Lalita Kumari
was heard by a Bench of three-Judges in Lalita Kumari v. Government of Uttar
Pradesh and Ors. MANU/SC/0157/2012 : (2012) 4 SCC 1 wherein, this Court, after
hearing various counsel representing Union of India, States and Union Territories and
also after adverting to all the conflicting decisions extensively, referred the matter to a
Constitution Bench while concluding as under:
97. We have carefully analysed various judgments delivered by this Court in the
last several decades. We clearly discern divergent judicial opinions of this Court
on the main issue: whether under Section 154 Code of Criminal Procedure, a
police officer is bound to register an FIR when a cognizable offence is made out
or he (police officer) has an option, discretion or latitude of conducting some
kind of preliminary inquiry before registering the FIR.
98. The learned Counsel appearing for the Union of India and different States
have expressed totally divergent views even before this Court. This Court also
carved out a special category in the case of medical doctors in the
aforementioned cases of Santosh Kumarand Suresh Gupta where preliminary
inquiry had been postulated before registering an FIR. Some counsel also
submitted that the CBI Manual also envisages some kind of preliminary inquiry
before registering the FIR.
99. The issue which has arisen for consideration in these cases is of great public
importance. In view of the divergent opinions in a large number of cases
decided by this Court, it has become extremely important to have a clear
enunciation of law and adjudication by a larger Bench of this Court for the
benefit of all concerned--the courts, the investigating agencies and the citizens.
100. Consequently, we request the Hon'ble the Chief Justice to refer these
matters to a Constitution Bench of at least five Judges of this Court for an
authoritative judgment.
6. Therefore, the only question before this Constitution Bench relates to the
interpretation
of
Section 154 of
the
Code
and
incidentally
to
consider
Sections 156 and157 also.
7. Heard Mr. S.B. Upadhyay, learned senior counsel for the Petitioner, Mr. K.V.
Vishwanathan, learned Additional Solicitor General for the Union of India, Mr. Sidharth
Luthra, learned Additional Solicitor General for the State of Chhattisgarh, Mr. Shekhar
Naphade, Mr. R.K. Dash, Ms. Vibha Datta Makhija, learned senior counsel for the State
of Maharashtra, U.P. and M.P. respectively, Mr. G. Sivabalamurugan, learned Counsel
for the accused, Dr. Ashok Dhamija, learned Counsel for the CBI, Mr. Kalyan
Bandopodhya, learned senior counsel for the State of West Bengal, Dr. Manish Singhvi,
learned AAG for the State of Rajasthan and Mr. Sudarshan Singh Rawat.
8. In order to answer the main issue posed before this Bench, it is useful to refer the
following Sections of the Code:
154. Information in cognizable cases.-- (1) Every information relating to
the commission of a cognizable offence, if given orally to an officer in charge of
a police station, shall be reduced to writing by him or under his direction, and
be read over to the informant; and every such information, whether given in

writing or reduced to writing as aforesaid, shall be signed by the person giving

it, and the substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under Sub-section (1) shall be given
forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a
police station to record the information referred to in Sub-section (1) may send
the substance of such information, in writing and by post, to the Superintendent
of Police concerned who, if satisfied that such information discloses the
commission of a cognizable offence, shall either investigate the case himself or
direct an investigation to be made by any police officer subordinate to him, in
the manner provided by this Code, and such officer shall have all the powers of
an officer in charge of the police station in relation to that offence.
156. Police officer's power to investigate cognizable case. (1) Any officer
in charge of a police station may, without the order of a Magistrate, investigate
any cognizable case which a Court having jurisdiction over the local area within
the limits of such station would have power to inquire into or try under the
provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be
called in question on the ground that the case was one which such officer was
not empowered under this section to investigate.
(3) Any Magistrate empowered
investigation as above-mentioned.

under

Section 190 may

order

such

an

157. Procedure for investigation: (1) If, from information received or

otherwise, an officer in charge of a police station has reason to suspect the
commission of an offence which he is empowered under Section 156 to
investigate, he shall forthwith send a report of the same to a Magistrate
empowered to take cognizance of such offence upon a police report and shall
proceed in person, or shall depute one of his subordinate officers not being
below such rank as the State Government may, by general or special order,
prescribe in this behalf, to proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary, to take measures for the discovery
and arrest of the offender:
Provided that(a) when information as to the commission of any such offence is given
against any person by name and the case is not of a serious nature, the
officer in charge of a police station need not proceed in person or depute
a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no
sufficient ground for entering on an investigation, he shall not investigate
the case.

Provided further that in relation to an offence of rape, the recording of

statement of the victim shall be conducted at the residence of the victim
or in the place of her choice and as far as practicable by a woman police
officer in the presence of her parents or guardian or near relatives or
social worker of the locality.
(2) In each of the cases mentioned in Clauses (a) and (b) of the proviso
to Sub-section (1), the officer in charge of the police station shall state in
his report his reasons for not fully complying with the requirements of
that subsection, and, in the case mentioned in Clause (b) of the said
proviso, the officer shall also forthwith notify to the informant, if any, in
such manner as may be prescribed by the State Government, the fact
that he will not investigate the case or cause it to be investigated.
Contentions:
9. At the foremost, Mr. S.B. Upadhyay, learned senior counsel, while explaining the
conditions mentioned in Section 154 submitted that Section 154(1) is mandatory as
the use of the word 'shall' is indicative of the statutory intent of the legislature. He also
contended that there is no discretion left to the police officer except to register an FIR.
In support of the above proposition, he relied on the following decisions, viz., B.
Premanand and Ors. v. Mohan Koikal and Ors. MANU/SC/0249/2011 : (2011) 4
SCC 266, M/s. Hiralal Rattanlal Etc. Etc. v. State of U.P. and Anr. Etc.
Etc. MANU/SC/0553/1972 : (1973) 1 SCC 216 and Govindlal Chhaganlal
Patel v. Agricultural
Produce
Market
Committee,
Godhra
and
Ors. MANU/SC/0125/1975 : (1975) 2 SCC 482.
10. Mr. Upadhyay, by further drawing our attention to the language used in
Section 154(1) of the Code, contended that it merely mentions 'information' without
prefixing the words 'reasonable' or 'credible'. In order to substantiate this claim, he
relied on the following decisions, viz., Bhajan Lal (supra), Ganesh Bhavan Patel
and Anr. v. State of Maharashtra MANU/SC/0083/1978 : (1978) 4 SCC
371, Aleque Padamsee and Ors. v. Union of India and Ors.MANU/SC/2975/2007
: (2007) 6 SCC 171, Ramesh Kumari (supra), Ram Lal Narang v. State (Delhi
Administration) MANU/SC/0216/1979 : (1979) 2 SCC 322 and Lallan Chaudhary
and Ors. v. State of Bihar and Anr. MANU/SC/4524/2006 : (2006) 12 SCC 229.
Besides, he also brought to light various adverse impacts of allowing police officers to
hold preliminary inquiry before registering an FIR.
11. Mr. K.V. Viswanathan, learned Additional Solicitor General appearing on behalf
of Union of India submitted that in all the cases where information is received under
Section 154 of the Code, it is mandatory for the police to forthwith enter the same into
the register maintained for the said purpose, if the same relates to commission of a
cognizable offence. According to learned ASG, the police authorities have no discretion
or authority, whatsoever, to ascertain the veracity of such information before deciding
to register it. He also pointed out that a police officer, who proceeds to the spot under
Sections 156 and 157 of the Code, on the basis of either a cryptic information or
source information, or a rumour etc., has to immediately, on gathering information
relating to the commission of a cognizable offence, send a report (ruqqa) to the police
station so that the same can be registered as FIR. He also highlighted the scheme of
the Code relating to the registration of FIR, arrest, various protections provided to the
accused and the power of police to close investigation. In support of his claim, he

relied on various decisions of this Court viz., Bhajan Lal (supra), Ramesh Kumari
(supra) and Aleque Padamsee (supra). He also deliberated upon the
distinguishable judgments in conflict with the mandatory proposition, viz., State of
Uttar Pradesh v. Bhagwant Kishore Joshi MANU/SC/0066/1963 : (1964) 3 SCR
71, P. Sirajuddin (supra), Sevi (supra), Shashikant (supra), Rajinder Singh
Katoch (supra), Jacob Mathew v. State of Punjab and Anr.MANU/SC/0457/2005
: (2005) 6 SCC 1. He concluded his arguments by saying that if any information
disclosing a cognizable offence is led before an officer in-charge of a police station
satisfying the requirements of Section 154(1) of the Code, the said police officer has
no other option except to enter the substance thereof in the prescribed form, that is to
say, to register a case on the basis of such information. Further, he emphasized upon
various safeguards provided under the Code against filing a false case.
12. Dr. Ashok Dhamija, learned Counsel for the CBI, submitted that the use of the
word "shall" under Section 154(1) of the Code clearly mandates that if the information
given to a police officer relates to the commission of a cognizable offence, then it is
mandatory for him to register the offence. According to learned Counsel, in such
circumstances, there is no option or discretion given to the police. He further
contended that the word "shall" clearly implies a mandate and is unmistakably
indicative of the statutory intent. What is necessary, according to him, is only that the
information given to the police must disclose commission of a cognizable offence. He
also contended that Section 154 of the Code uses the word "information" simpliciter
and does not use the qualified words such as "credible information" or "reasonable
complaint". Thus, the intention of the Parliament is unequivocally clear from the
language employed that a mere information relating to commission of a cognizable
offence is sufficient to register an FIR. He also relied on Bhajan Lal (supra),
Ramesh Kumari (supra), Aleque Padamsee (supra), Lallan Chaudhary
(supra),
Superintendent
of
Police,
CBI v. Tapan
Kumar
Singh MANU/SC/0299/2003 : (2003) 6 SCC 175, M/s. Hiralal Rattanlal (supra),
B. Premanand (supra), Khub Chand v. State of Rajasthan MANU/SC/0015/1966
: AIR 1967 SC 1074, P. Sirajuddin (supra), Rajinder Singh Katoch (supra),
Bhagwant Kishore Joshi (supra), State of West Bengal v. Committee for
Protection of Democratic Rights, West Bengal MANU/SC/0121/2010 : (2010) 3
SCC 571. He also pointed out various safeguards provided in the Code against filing a
false case. In the end, he concluded by reiterating that the registration of FIR is
mandatory under Section 154 of the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is permissible in such a situation.
Further, he also clarified that the preliminary inquiry conducted by the CBI, under
certain situations, as provided under the CBI Crime Manual, stands on a different
footing due to the special provisions relating to the CBI contained in the Delhi Special
Police Establishment Act, 1946, which is saved under Sections 4(2) and 5 of the Code.
13. Mr. Kalyan Bandopadhyay, learned senior Counsel appearing on behalf of the
State of West Bengal, submitted that whenever any information relating to commission
of a cognizable offence is received, it is the duty of the officer in-charge of a police
station to record the same and a copy of such information, shall be given forthwith,
free of cost, to the informant under Section 154(2) of the Code. According to him, a
police officer has no other alternative but to record the information in relation to a
cognizable offence in the first instance. He also highlighted various subsequent steps
to be followed by the police officer pursuant to the registration of an FIR. With regard
to the scope of Section 154 of the Code, he relied on H.N. Rishbud and Inder
Singh v. State of DelhiMANU/SC/0049/1954 : AIR 1955 SC 196, Bhajan Lal

(supra), S.N. Sharma v. Bipen Kumar Tiwari MANU/SC/0182/1970 : (1970) 1

SCC 653, Union of India v. Prakash P. Hinduja MANU/SC/0446/2003 : (2003) 6
SCC 195, Sheikh Hasib alias Tabarak v. State of Bihar MANU/SC/0180/1971 :
(1972) 4 SCC 773, Shashikant (supra), Ashok Kumar Todi v. Kishwar Jahan and
Ors. MANU/SC/0162/2011 : (2011) 3 SCC 758, Padma Sundara Rao (Dead) and
Ors. v. State of T.N. and Ors. MANU/SC/0182/2002 : (2002) 3 SCC 533, P.
Sirajuddin (supra), Rajinder Singh Katoch (supra), Bhagwant Kishore Joshi
(supra) and Mannalal Khatic v. The State MANU/WB/0117/1967 : AIR 1967 Cal
478.
14. Dr. Manish Singhvi, learned Additional Advocate General for the State of
Rajasthan, submitted that Section 154(1) of the Code mandates compulsory
registration of FIR. He also highlighted various safeguards inbuilt in the Code for
lodging of false FIRs. He also pointed out that the only exception relates to cases
arising under the Prevention of Corruption Act as, in those cases, sanction is necessary
before taking cognizance by the Magistrates and the public servants are accorded
some kind of protection so that vexatious cases cannot be filed to harass them.
15. Mr. G. Sivabalamurugan, learned Counsel for the Appellant in Criminal Appeal
No. 1410 of 2011, after tracing the earlier history, viz., the relevant provisions in the
Code of Criminal Procedure of 1861, 1872, 1882 and 1898 stressed as to why the
compulsory registration of FIR is mandatory. He also highlighted the recommendations
of the Report of the 41 st Law Commission and insertion of Section 13 of the Criminal
Law (Amendment) Act, 2013 with effect from 03.02.2013.
16. Mr. R.K. Dash, learned senior counsel appearing for the State of Uttar Pradesh,
though initially commenced his arguments by asserting that in order to check
unnecessary harassment to innocent persons at the behest of unscrupulous
complainants, it is desirable that a preliminary inquiry into the allegations should
precede with the registration of FIR but subsequently after considering the salient
features of the Code, various provisions like Sections 2(4)(h), 156(1), 202(1),164,
various provisions from the U.P. Police Regulations, learned senior counsel contended
that in no case recording of FIR should be deferred till verification of its truth or
otherwise in case of information relating to a cognizable offence. In addition to the
same, he also relied on various pronouncements of this Court, such
as, Mohindro v. State
of
Punjab MANU/SC/1010/2001 :
(2001)
9
SCC
581, Ramesh Kumari (supra), Bhajan Lal (supra), Parkash Singh Badal
(supra), Munna Lal v. State of Himachal Pradesh MANU/HP/0033/1991 : 1992
Crl. L.J. 1558, Giridhari Lal Kanak v. State and Ors. MANU/MP/0620/2001 : 2002
Crl.
L.J.
2113
and Katteri
Moideen
Kutty
Haji v. State
of
Kerala MANU/KE/0071/2002 : 2002 (2) Crimes 143. Finally, he concluded that when
the statutory provisions, as envisaged in Chapter XII of the Code, are clear and
unambiguous, it would not be legally permissible to allow the police to make a
preliminary inquiry into the allegations before registering an FIR under Section 154 of
the Code.
17. Mr. Sidharth Luthra, learned Additional Solicitor General appearing for the State
of Chhattisgarh, commenced his arguments by emphasizing the scope of reference
before the Constitution Bench. Subsequently, he elaborated on various judgments
which held that an investigating officer, on receiving information of commission of a
cognizable offence under Section 154 of the Code, has power to conduct preliminary
inquiry before registration of FIR, viz., Bhagwant Kishore Joshi (supra), P.

Sirajuddin (supra), Sevi (supra) and Rajinder Singh Katoch (supra).

Concurrently, he also brought to our notice the following decisions, viz., Bhajan Lal
(supra), Ramesh Kumari (supra), Parkash Singh Badal (supra), and Aleque
Padamsee (supra), which held that a police officer is duty bound to register an FIR,
upon receipt of information disclosing commission of a cognizable offence and the
power of preliminary inquiry does not exist under the mandate of Section 154. Learned
ASG has put forth a comparative analysis of Section 154 of the Code of Criminal
Procedure of 1898 and of 1973. He also highlighted that every activity which occurs in
a police station [Section 2(s)] is entered in a diary maintained at the police station
which may be called as the General Diary, Station Diary or Daily Diary. He underlined
the relevance of General Diary by referring to various judicial decisions such as Tapan
Kumar Singh (supra), Re: Subbaratnam and Ors. AIR 1949 Madras 663. He
further pointed out that, presently, throughout the country, in matrimonial,
commercial, medical negligence and corruption related offences, there exist provisions
for conducting an inquiry or preliminary inquiry by the police, without/before
registering an FIR under Section 154 of the Code. He also brought to our notice
various police rules prevailing in the States of Punjab, Rajasthan, U.P., Madhya
Pradesh, Kolkata, Bombay, etc., for conducting an inquiry before registering an FIR.
Besides, he also attempted to draw an inference from the Crime Manual of the CBI to
highlight that a preliminary inquiry before registering a case is permissible and
legitimate in the eyes of law. Adverting to the above contentions, he concluded by
pleading that preliminary inquiry before registration of an FIR should be held
permissible. Further, he emphasized that the power to carry out an inquiry or
preliminary inquiry by the police, which precedes the registration of FIR will eliminate
the misuse of the process, as the registration of FIR serves as an impediment against a
person for various important activities like applying for a job or a passport, etc.
Learned ASG further requested this Court to frame guidelines for certain category of
cases in which preliminary inquiry should be made.
18. Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the State of
Maharashtra, submitted that ordinarily the Station House Officer (SHO) should record
an FIR upon receiving a complaint disclosing the ingredients of a cognizable offence,
but in certain situations, in case of doubt about the correctness or credibility of the
information, he should have the discretion of holding a preliminary inquiry and
thereafter, if he is satisfied that there is a prima facie case for investigation, register
the FIR. A mandatory duty of registering FIR should not be cast upon him. According
to him, this interpretation would harmonize two extreme positions, viz., the proposition
that the moment the complaint disclosing ingredients of a cognizable offence is lodged,
the police officer must register an FIR without any scrutiny whatsoever is an extreme
proposition and is contrary to the mandate of Article 21 of the Constitution of India,
similarly, the other extreme point of view is that the police officer must investigate the
case substantially before registering an FIR. Accordingly, he pointed out that both must
be rejected and a middle path must be chosen. He also submitted the following
judgments, viz., Bhajan Lal (supra), Ramesh Kumari (supra), Parkash Singh
Badal (supra), and Aleque Padamsee (supra) wherein it has been held that if a
complaint alleging commission of a cognizable offence is received in the police station,
then the SHO has no other option but to register an FIR under Section 154 of the
Code. According to learned senior counsel, these verdicts require reconsideration as
they have interpreted Section 154 de hors the other provisions of the Code and have
failed to consider the impact of Article 21 on Section 154of the Code.

19. Alongside, he pointed out the following decisions, viz., Rajinder Singh Katoch
(supra), P. Sirajuddin (supra), Bhagwant Kishore Joshi (supra) andSevi
(supra), which hold that before registering an FIR under Section 154 of the Code, it is
open to the police officer to hold a preliminary inquiry to ascertain whether there is
a prima facie case of commission of a cognizable offence or not. According to learned
senior counsel, Section 154 of the Code forms part of a chain of statutory provisions
relating to investigation and, therefore, the scheme of provisions of
Sections 41, 157, 167, 169, etc., must have a bearing on the interpretation of
Section 154. In addition, he emphasized that giving a literal interpretation would
reduce the registration of FIR to a mechanical act. Parallelly, he underscored the
impact of Article 21 on Section 154 of the Code by referring to Maneka
Gandhi v. Union of India MANU/SC/0133/1978 : (1978) 1 SCC 248, wherein this
Court has applied Article 21 to several provisions relating to criminal law. This Court
has also stated that the expression "law" contained in Article 21necessarily postulates
law which is reasonable and not merely statutory provisions irrespective of its
reasonableness or otherwise. Learned senior counsel pleaded that in the light of
Article 21, provisions of Section 154 of the Code must be read down to mean that
before registering an FIR, the police officer must be satisfied that there is a prima
facie case for investigation. He also emphasized that Section 154 contains implied
power of the police officer to hold preliminary inquiry if he bona fide possess serious
doubts about the credibility of the information given to him. By pointing out Criminal
Law (Amendment) Act, 2013, particularly, Section 166A, Mr. Naphade contended that
as far as other cognizable offences (apart from those mentioned in Section 166A) are
concerned, police has a discretion to hold preliminary inquiry if there is some doubt
about the correctness of the information.
20. In case of allegations relating to medical negligence on the part of the doctors, it is
pointed out by drawing our attention to some of the decisions of this Court viz., Tapan
Kumar Singh (supra), Jacob Mathew (supra) etc., that no medical professional
should be prosecuted merely on the basis of the allegations in the complaint. By
pointing out various decisions, Mr. Naphade emphasized that in appropriate cases, it
would be proper for a police officer, on receipt of a complaint of a cognizable offence,
to satisfy himself that at least prima facie allegations levelled against the accused in
the complaint are credible. He also contended that no single provision of a statute can
be read and interpreted in isolation, but the statute must be read as a whole.
Accordingly,
he
prayed
that
the
provisions
of
Sections 41, 57, 156, 157, 159, 167, 190, 200 and 202 of the Code must be read
together. He also pointed out that Section 154(3) of the Code enables any complainant
whose complaint is not registered as an FIR by the officer in-charge of the police
station to approach the higher police officer for the purpose of getting his complaint
registered as an FIR and in such a case, the higher police officer has all the powers of
recording an FIR and directing investigation into the matter. In addition to the remedy
available to an aggrieved person of approaching higher police officer, he can also move
the concerned Magistrate by making a complaint under Section 190 thereof. He further
emphasized that the fact that the legislature has provided adequate remedies against
refusal to register FIR and to hold investigation in cognizable offences, is indicative of
legislative intent that the police officer is not bound to record FIR merely because the
ingredients of a cognizable offence are disclosed in the complaint, if he has doubts
about the veracity of the complaint. He also pointed out that the word "shall" used in
the statute does not always mean absence of any discretion in the matter. For the said
proposition, he also highlighted that this Court has preferred the rule of purposive
interpretation to the rule of literal interpretation for which he relied on Chairman

Board of Mining Examination and Chief Inspector of Mines and

Anr. v. Ramjee MANU/SC/0061/1977 :
(1977)
2
SCC
256, Lalit
Mohan
Pandey v. Pooran Singh MANU/SC/0422/2004 : (2004) 6 SCC 626, Prativa
Bose v. Kumar Rupendra Deb Raikat MANU/SC/0251/1963 : (1964) 4 SCR 69.
He further pointed out that it is impossible to put the provisions of Section 154of the
Code in a straightjacket formula. He also prayed for framing of some guidelines as
regards registration or non-registration of FIR. Finally, he pointed out that the
requirement of Article 21 is that the procedure should be fair and just. According to
him, if the police officer has doubts in the matter, it is imperative that he should have
the discretion of holding a preliminary inquiry in the matter. If he is debarred from
holding such a preliminary inquiry, the procedure would then suffer from the vice of
arbitrariness and unreasonableness. Thus, he concluded his arguments by pleading
that Section 154 of the Code must be interpreted in the light of Article 21.
21. Ms. Vibha Datta Makhija, learned senior counsel appearing for the State of
Madhya Pradesh submitted that a plain reading of Section 154 and other provisions of
the Code shows that it may not be mandatory but is absolutely obligatory on the part
of the police officer to register an FIR prior to taking any steps or conducting
investigation into a cognizable offence. She further pointed out that after receiving the
first information of an offence and prior to the registration of the said report (whether
oral or written) in the First Information Book maintained at the police station under
various State Government Regulations, only some preliminary inquiry or investigative
steps are permissible under the statutory framework of the Code to the extent as is
justifiable and is within the window of statutory discretion granted strictly for the
purpose of ascertaining whether there has been a commission or not of a cognizable
offence. Hence, an investigation, culminating into a Final Report under Section 173 of
the Code, cannot be called into question and be quashed due to the reason that a part
of the inquiry, investigation or steps taken during investigation are conducted after
receiving the first information but prior to registering the same unless it is found that
the said investigation is unfair, illegal, mala fide and has resulted in grave prejudice to
the right of the accused to fair investigation. In support of the above contentions, she
traced the earlier provisions of the Code and current statutory framework, viz.,
Criminal Law (Amendment) Act, 2013 with reference to various decisions of this Court.
She concluded that Section 154 of the Code leaves no area of doubt that where a
cognizable offence is disclosed, there is no discretion on the part of the police to record
or not to record the said information, however, it may differ from case to case.
22. The issues before the Constitution Bench of this Court arise out of two main
conflicting areas of concern, viz.,
(i) Whether the immediate non-registration of FIR leads to scope for
manipulation by the police which affects the right of the victim/complainant to
have a complaint immediately investigated upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose
the commission of a cognizable offence but the FIR is compulsorily registered
then does it infringe the rights of an accused.
Discussion:
23. The FIR is a pertinent document in the criminal law procedure of our country and
its main object from the point of view of the informant is to set the criminal law in

motion and from the point of view of the investigating authorities is to obtain
information about the alleged criminal activity so as to be able to take suitable steps to
trace and to bring to book the guilty.
24. Historical experience has thrown up cases from both the sides where the grievance
of the victim/informant of non-registration of valid FIRs as well as that of the accused
of being unnecessarily harassed and investigated upon false charges have been found
to be correct.
25. An example of the first category of cases is found in State of
Maharashtra v. Sarangdharsingh
Shivdassingh
Chavan
and
Anr. MANU/SC/1055/2010 : (2011) 1 SCC 577 wherein a writ petition was filed
challenging the order of the Collector in the District of Buldhana directing not to
register any crime against Mr. Gokulchand Sananda, without obtaining clearance from
the District Anti-Money Lending Committee and the District Government Pleader. From
the record, it was revealed that out of 74 cases, only in seven cases, charge sheets
were filed alleging illegal moneylending. This Court found that upon instructions given
by the Chief Minister to the District Collector, there was no registration of FIR of the
poor farmers. In these circumstances, this Court held the said instructions to beultra
vires and quashed the same. It is argued that cases like above exhibit the mandatory
character of Section 154, and if it is held otherwise, it shall lead to grave injustice.
26. In Aleque Padamsee (supra), while dealing with the issue whether it is within
the powers of courts to issue a writ directing the police to register a First Information
Report in a case where it was alleged that the accused had made speeches likely to
disturb communal harmony, this Court held that "the police officials ought to register
the FIR whenever facts brought to their notice show that a cognizable offence has
been made out. In case the police officials fail to do so, the modalities to be adopted
are as set out in Section 190 read with Section 200 of the Code." As such, the Code
itself provides several checks for refusal on the part of the police authorities under
Section 154 of the Code.
27. However, on the other hand, there are a number of cases which exhibit that there
are instances where the power of the police to register an FIR and initiate an
investigation thereto are misused where a cognizable offence is not made out from the
contents of the complaint. A significant case in this context is the case of Preeti
Gupta v. State of Jharkhand MANU/SC/0592/2010 : (2010) 7 SCC 667 wherein
this Court has expressed its anxiety over misuse of Section 498A of the Indian Penal
Code, 1860 (in short 'the Indian Penal Code') with respect to which a large number of
frivolous reports were lodged. This Court expressed its desire that the legislature must
take into consideration the informed public opinion and the pragmatic realities to make
necessary changes in law.
28. The above said judgment resulted in the 243 rd Report of the Law Commission of
India submitted on 30th August, 2012. The Law Commission, in its Report, concluded
that though the offence under Section 498A could be made compoundable, however,
the extent of misuse was not established by empirical data, and, thus, could not be a
ground to denude the provision of its efficacy. The Law Commission also observed that
the law on the question whether the registration of FIR could be postponed for a
reasonable time is in a state of uncertainty and can be crystallized only upon this Court
putting at rest the present controversy.

29. In order to arrive at a conclusion in the light of divergent views on the point and
also to answer the above contentions, it is pertinent to have a look at the historical
background of the Section and corresponding provisions that existed in the previous
enactments of the Code of Criminal Procedure.
Code of Criminal Procedure, 1861
139. Every complaint or information preferred to an officer in charge of a police station,
shall be reduced into writing and the substance thereof shall be entered in a diary to be
kept by such officer, in such form as shall be prescribed by the local government.
Code of Criminal Procedure, 1872
112. Every complaint preferred to an officer in charge of a police station, shall be
reduced into writing, and shall be signed, sealed or marked by the person making it; and
the substance thereof shall be entered in a book to be kept by such officer in the form
prescribed by the local government.
Code of Criminal Procedure, 1882
154. Every information relating to the commission of a cognizable offence if given orally
to an officer in charge of a police station, shall be reduced to writing by him, or under his
direction, and be read over to the informant; and every such information, whether given
in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and
the substance thereof shall be entered in a book to be kept by such form as the
government may prescribe in this behalf.
Code of Criminal Procedure, 1898
154. Every information relating to the commission of a cognizable offence if given orally
to an officer in charge of a police station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every such information, whether given
in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and
the substance thereof shall be entered in a book to be kept by such officer in such form
as the Government may prescribe in this behalf.
Code of Criminal Procedure, 1973
154. Information in cognizable cases: 1) Every information relating to the
commission of a cognizable offence, it given orally to an officer in charge of a
police station, shall be reduced to writing by him or under his direction, and be
read over to the informant; and every such information, whether given in
writing or reduced to writing as aforesaid, shall be signed by the person giving
it, and the substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this behalf.
[Provided that if the information is given by the woman against whom an
offence
under
Sections 326A, 326B, 354, 354A, 354B, 354C,354D, 376, 376A, 376B, 376C, 37
6D, 376E or Section 509 of the Indian Penal Code is alleged to have been
committed or attempted, then such information shall be recorded by a woman
police officer or any woman officer:

Provided further that:

(a) in the event that the person against whom an offence under
Sections 354, 354A, 354B, 354C, 354D, 376, 376A, 376B,376C, 376D, 3
76E or Section 509 of the Indian Penal code is alleged to have been
committed or attempted is temporarily or permanently mentally or
physically disabled then such information shall be recorded by a police
officer, at the residence of the person seeking to report such offence or at
a convenient place of such person's choice, in the presence of an
interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a
Judicial Magistrate under Clause (a) of Sub-section (5A) of
Section 164 as soon as possible.]
(Inserted by Section 13 of 'The Criminal Law (Amendment) Act, 2013 w.e.f.
03.02.2013)
(2) A copy of the information as recorded under Sub-section (1) shall be given
forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a
police station to record the information referred to in Sub-section (1) may send
the substance of such information, in writing and by post, to the Superintendent
of Police concerned who, if satisfied that such information discloses the
commission of a cognizable offence, shall either investigate the case himself or
direct an investigation to be made by any police officer subordinate to him, in
the manner provided by this Code, and such officer shall have all the powers of
an officer in charge of the police station in relation to that offence.
A perusal of the above said provisions manifests the legislative intent in both old codes
and the new code for compulsory registration of FIR in a case of cognizable offence
without conducting any Preliminary Inquiry.
30. The precursor to the present Code of 1973 is the Code of 1898 wherein substantial
changes were made in the powers and procedure of the police to investigate. The
starting point of the powers of police was changed from the power of the officer incharge of a police station to investigate into a cognizable offence without the order of a
Magistrate, to the reduction of the first information regarding commission of a
cognizable offence, whether received orally or in writing, into writing and into the book
separately prescribed by the Provincial government for recording such first
information.
31. As such, a significant change that took place by way of the 1898 Code was with
respect to the placement of Section 154, i.e., the provision imposing requirement of
recording the first information regarding commission of a cognizable offence in the
special book prior to Section 156, i.e., the provision empowering the police officer to
investigate a cognizable offence. As such, the objective of such placement of
provisions was clear which was to ensure that the recording of the first information
should be the starting point of any investigation by the police. In the interest of

expediency of investigation since there was no safeguard of obtaining permission from

the Magistrate to commence an investigation, the said procedure of recording first
information in their books along with the signature/seal of the informant, would act as
an "extremely valuable safeguard" against the excessive, mala fide and illegal exercise
of investigative powers by the police.
32. Provisions contained in Chapter XII of the Code deal with information to the police
and their powers to investigate. The said Chapter sets out the procedure to be followed
during investigation. The objective to be achieved by the procedure prescribed in the
said Chapter is to set the criminal law in motion and to provide for all procedural
safeguards so as to ensure that the investigation is fair and is not mala fide and there
is no scope of tampering with the evidence collected during the investigation.
33. In addition, Mr. Shekhar Naphade, learned senior counsel contended that insertion
of Section 166A in Indian Penal Code indicates that registration of FIR is not
compulsory for all offences other than what is specified in the said Section. By Criminal
Law (Amendment) Act 2013, Section 166A was inserted in Indian Penal Code which
reads as under:
Section 166A--Whoever, being a public servant.(a) knowingly disobeys any direction of the law which prohibits him from
requiring the attendance at any place of any person for the purpose of
investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other
direction of the law regulating the manner in which he shall conduct such
investigation, or
(c) fails to record any information given to him under Sub-section (1) of
Section 154 of the Code of Criminal Procedure, 1973, in relation to
cognizable offence punishable under Section 326A, Section 326B,
Section 354, Section 354B, Section370, Section 370A, Section 376,
Section 376A, Section 376B, Section 376C, Section 376D, Section 376E,
Section 509 shall be punished with rigorous imprisonment for a term
which shall not be less than six months but which may extend to two
years and shall also be liable to fine.
Section 166A(c) lays down that if a public servant (Police Officer) fails to record any
information given to him under Section 154(1) of the Code in relation to cognizable
offences
punishable
under
Sections 326A, 326B, 354, 354B, 370, 370A, 376, 376A, 376B, 376C, 376D, 376E or
Section 509, he shall be punished with rigorous imprisonment for a term which shall
not be less than six months but may extend to two years and shall also be liable to
fine. Thus, it is the stand of learned Counsel that this provision clearly indicates that
registration of FIR is imperative and police officer has no discretion in the matter in
respect of offences specified in the said section. Therefore, according to him, the
legislature accepts that as far as other cognizable offences are concerned, police has
discretion to hold a preliminary inquiry if there is doubt about the correctness of the
information.

34. Although, the argument is as persuasive as it appears, yet, we doubt whether such
a presumption can be drawn in contravention to the unambiguous words employed in
the said provision. Hence, insertion of Section 166A in the Indian Penal Code vide
Criminal Law (Amendment) Act 2013, must be read in consonance with the provision
and not contrary to it. The insertion of Section 166A was in the light of recent
unfortunate occurrence of offences against women. The intention of the legislature in
putting forth this amendment was to tighten the already existing provisions to provide
enhanced safeguards to women. Therefore, the legislature, after noticing the
increasing crimes against women in our country, thought it appropriate to expressly
punish the police officers for their failure to register FIRs in these cases. No other
meaning than this can be assigned to for the insertion of the same.
35. With this background, let us discuss the submissions in the light of various
decisions both in favour and against the referred issue.
Interpretation of Section 154:
36. It may be mentioned in this connection that the first and foremost principle of
interpretation of a statute in every system of interpretation is the literal rule of
interpretation. All that we have to see at the very outset is what does the provision
say? As a result, the language employed in Section 154 is the determinative factor of
the legislative intent. A plain reading of Section 154(1) of the Code provides that any
information relating to the commission of a cognizable offence if given orally to an
officer-in-charge of a police station shall be reduced into writing by him or under his
direction. There is no ambiguity in the language of Section154(1) of the Code.
37. At this juncture, it is apposite to refer to the following observations of this Court
in M/s. Hiralal Rattanlal (supra) which are as under:
22...In construing a statutory provision, the first and the foremost rule of construction is
the literary construction. All that we have to see at the very outset is what does that
provision say? If the provision is unambiguous and if from that provision, the legislative
intent is clear, we need not call into aid the other rules of construction of statutes. The
other rules of construction of statutes are called into aid only when the legislative
intention is not clear....
The above decision was followed by this Court in B. Premanand (supra) and after
referring the abovesaid observations in the case of Hiralal Rattanlal (supra), this
Court observed as under:
9. It may be mentioned in this connection that the first and foremost principle of
interpretation of a statute in every system of interpretation is the literal rule of
interpretation. The other rules of interpretation e.g. the mischief rule, purposive
interpretation, etc. can only be resorted to when the plain words of a statute are
ambiguous or lead to no intelligible results or if read literally would nullify the very object
of the statute. Where the words of a statute are absolutely clear and unambiguous,
recourse cannot be had to the principles of interpretation other than the literal rule,
vide Swedish Match AB v. SEBI MANU/SC/0693/2004 : (2004) 11 SCC 641.
The language of Section 154(1), therefore, admits of no other construction but the
literal construction.

38. The legislative intent

(supra) which is as under:

of

Section 154 is

vividly

elaborated

in Bhajan

30. The legal mandate enshrined in Section 154(1) is that every information
relating to the commission of a "cognizable offence" (as defined Under
Section 2(c) of the Code) if given orally (in which case it is to be reduced into
writing) or in writing to "an officer incharge of a police station" (within the
meaning of Section 2(o) of the Code) and signed by the informant should be
entered in a book to be kept by such officer in such form as the State
Government may prescribe which form is commonly called as "First Information
Report" and which act of entering the information in the said form is known as
registration of a crime or a case.
31. At the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence in compliance with the mandate of
Section 154(1) of the Code, the concerned police officer cannot embark upon an
inquiry as to whether the information, laid by the informant is reliable and
genuine or otherwise and refuse to register a case on the ground that the
information is not reliable or credible. On the other hand, the officer in charge of
a police station is statutorily obliged to register a case and then to proceed with
the investigation if he has reason to suspect the commission of an offence which
he is empowered under Section 156 of the Code to investigate, subject to the
proviso to Section 157. (As we have proposed to make a detailed discussion
about the power of a police officer in the field of investigation of a cognizable
offence within the ambit of Sections 156 and 157 of the Code in the ensuing
part of this judgment, we do not propose to deal with those sections in extenso
in the present context.) In case, an officer in charge of a police station refuses
to exercise the jurisdiction vested in him and to register a case on the
information of a cognizable offence reported and thereby violates the statutory
duty cast upon him, the person aggrieved by such refusal can send the
substance of the information in writing and by post to the Superintendent of
Police concerned who if satisfied that the information forwarded to him discloses
a cognizable offence, should either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him in the manner
provided by Sub-section (3) of Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the legislature in its
collective wisdom has carefully and cautiously used the expression "information"
without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein
the expressions, "reasonable complaint" and "credible information" are used.
Evidently,
the
non
qualification
of
the
word
"information"
in
Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the
reason that the police officer should not refuse to record an information relating
to the commission of a cognizable offence and to register a case thereon on the
ground that he is not satisfied with the reasonableness or credibility of the
information. In other words, 'reasonableness' or 'credibility' of the said
information is not a condition precedent for registration of a case. A comparison
of the present Section 154 with those of the earlier Codes will indicate that the
legislature had purposely thought it fit to employ only the word "information"
without qualifying the said word. Section 139of the Code of Criminal Procedure
of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that
'every complaint or information' preferred to an officer in charge of a police

Lal

station should be reduced into writing which provision was subsequently

modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter
read that 'every complaint' preferred to an officer in charge of a police station
shall be reduced in writing. The word 'complaint' which occurred in previous two
Codes of 1861 and 1872 was deleted and in that place the word 'information'
was used in the Codes of 1882 and 1898 which word is now used in
Sections 154,155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974).
An overall reading of all the Codes makes it clear that the condition which is sine
qua non for recording a first information report is that there must be
information and that information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer in charge of a police station satisfying
the requirements of Section 154(1) of the Code, the said police officer has no
other option except to enter the substance thereof in the prescribed form, that
is to say, to register a case on the basis of such information.
39. Consequently, the condition that is sine qua non for recording an FIR under
Section 154 of the Code is that there must be information and that information must
disclose a cognizable offence. If any information disclosing a cognizable offence is led
before an officer in charge of the police station satisfying the requirement of
Section 154(1), the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register a case on the basis
of such information. The provision of Section 154 of the Code is mandatory and the
concerned officer is duty bound to register the case on the basis of information
disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code
have to be given their literal meaning.
'Shall'
40. The use of the word "shall" in Section 154(1) of the Code clearly shows the
legislative intent that it is mandatory to register an FIR if the information given to the
police discloses the commission of a cognizable offence.
41. In Khub Chand (supra), this Court observed as under:
7...The term "shall" in its ordinary significance is mandatory and the court shall
ordinarily give that interpretation to that term unless such an interpretation leads to
some absurd or inconvenient consequence or be at variance with the intent of the
legislature, to be collected from other parts of the Act. The construction of the said
expression depends on the provisions of a particular Act, the setting in which the
expression appears, the object for which the direction is given, the consequences that
would flow from the infringement of the direction and such other considerations....
42. It is relevant to mention that the object of using the word "shall" in the context of
Section 154(1) of the Code is to ensure that all information relating to all cognizable
offences is promptly registered by the police and investigated in accordance with the
provisions of law.
43. Investigation of offences and prosecution of offenders are the duties of the State.
For "cognizable offences", a duty has been cast upon the police to register FIR and to
conduct investigation except as otherwise permitted specifically under Section 157 of

the Code. If a discretion, option or latitude is allowed to the police in the matter of
registration of FIRs, it can have serious consequences on the public order situation and
can also adversely affect the rights of the victims including violating their fundamental
right to equality.
44. Therefore, the context in which the word "shall" appears in Section 154(1) of the
Code, the object for which it has been used and the consequences that will follow from
the infringement of the direction to register FIRs, all these factors clearly show that the
word "shall" used in Section 154(1) needs to be given its ordinary meaning of being of
"mandatory" character. The provisions of Section 154(1) of the Code, read in the light
of the statutory scheme, do not admit of conferring any discretion on the officer incharge of the police station for embarking upon a preliminary inquiry prior to the
registration of an FIR. It is settled position of law that if the provision is unambiguous
and the legislative intent is clear, the court need not call into it any other rules of
construction.
45. In view of the above, the use of the word 'shall' coupled with the Scheme of the
Act lead to the conclusion that the legislators intended that if an information relating to
commission of a cognizable offence is given, then it would mandatorily be registered
by the officer in-charge of the police station. Reading 'shall' as 'may', as contended by
some counsel, would be against the Scheme of the Code. Section 154 of the Code
should be strictly construed and the word 'shall' should be given its natural meaning.
The golden rule of interpretation can be given a go-by only in cases where the
language of the section is ambiguous and/or leads to an absurdity.
46. In view of the above, we are satisfied that Section 154(1) of the Code does not
have any ambiguity in this regard and is in clear terms. It is relevant to mention that
Section 39 of the Code casts a statutory duty on every person to inform about
commission of certain offences which includes offences covered by Sections 121 to
126, 302, 64A, 382, 392 etc., of the Indian Penal Code. It would be incongruous to
suggest that though it is the duty of every citizen to inform about commission of an
offence, but it is not obligatory on the officer-incharge of a Police Station to register
the report. The word 'shall' occurring in Section 39of the Code has to be given the
same meaning as the word 'shall' occurring in Section 154(1) of the Code.
'Book'/'Diary'
47. It is contented by learned ASG appearing for the State of Chhattisgarh that the
recording of first information under Section 154 in the 'book' is subsequent to the
entry in the General Diary/Station Diary/Daily Diary, which is maintained in police
station. Therefore, according to learned ASG, first information is a document at the
earliest in the general diary, then if any preliminary inquiry is needed the police officer
may conduct the same and thereafter the information will be registered as FIR.
48. This interpretation is wholly unfounded. The First Information Report is in fact the
"information" that is received first in point of time, which is either given in writing or is
reduced to writing. It is not the "substance" of it, which is to be entered in the diary
prescribed by the State Government. The term 'General Diary' (also called as 'Station
Diary' or 'Daily Diary' in some States) is maintained not under Section 154 of the Code
but under the provisions of Section 44 of the Police Act, 1861 in the States to which it
applies, or under the respective provisions of the Police Act(s) applicable to a State or

under the Police Manual of a State, as the case may be. Section 44 of the Police Act,
1861 is reproduced below:
44. Police-officers to keep diary.--It shall be the duty of every officer in charge of a
police-station to keep a general diary in such form as shall, from time to time, be
prescribed by the State Government and to record therein all complaints and charged
preferred, the names of all persons arrested, the names of the complainants, the
offences charged against them, the weapons or property that shall have been taken from
their possession or otherwise, and the names of the witnesses who shall have been
examined. The Magistrate of the district shall be at liberty to call for any inspect such
diary.
49. It is pertinent to note that during the year 1861, when the aforesaid Police Act,
1861 was passed, the Code of Criminal Procedure, 1861 was also passed.
Section 139 of that Code dealt with registration of FIR and this Section is also referred
to the word "diary", as can be seen from the language of this Section, as reproduced
below:
139. Every complaint or information preferred to an officer in charge of a Police Station,
shall be reduced into writing, and the substance thereof shall be entered in a diary to be
kept by such officer, in such form as shall be prescribed by the local government.
Thus, Police Act, 1861 and the Code of Criminal Procedure, 1861, both of which were
passed in the same year, used the same word "diary".
50. However, in the year 1872, a new Code came to be passed which was called the
Code of Criminal Procedure, 1872. Section 112 of the Code dealt with the issue of
registration of FIR and is reproduced below:
112. Every complaint preferred to an officer in charge of a Police station shall be reduced
into writing, and shall be signed, sealed, or marked by the person making it; and the
substance thereof shall be entered in a book to be kept by such officer in the form
prescribed by the Local Government.
51. It is, thus, clear that in the Code of Criminal Procedure, 1872, a departure was
made and the word 'book' was used in place of 'diary'. The word 'book' clearly referred
to FIR book to be maintained under the Code for registration of FIRs.
52. The question that whether the FIR is to be recorded in the FIR Book or in General
Diary, is no more res integra. This issue has already been decided authoritatively by
this Court.
53. In Madhu Bala v. Suresh Kumar MANU/SC/0806/1997 : (1997) 8 SCC 476,
this Court has held that FIR must be registered in the FIR Register which shall be a
book consisting of 200 pages. It is true that the substance of the information is also to
be mentioned in the Daily diary (or the general diary). But, the basic requirement is to
register the FIR in the FIR Book or Register. Even in Bhajan Lal (supra), this Court
held that FIR has to be entered in a book in a form which is commonly called the First
Information Report.
54. It is thus clear that registration of FIR is to be done in a book called FIR book or
FIR Register. of course, in addition, the gist of the FIR or the substance of the FIR may

also be mentioned simultaneously in the General Diary as mandated in the respective

Police Act or Rules, as the case may be, under the relevant State provisions.
55. The General Diary is a record of all important transactions/events taking place in a
police station, including departure and arrival of police staff, handing over or taking
over of charge, arrest of a person, details of law and order duties, visit of senior
officers etc. It is in this context that gist or substance of each FIR being registered in
the police station is also mentioned in the General Diary since registration of FIR also
happens to be a very important event in the police station. Since General Diary is a
record that is maintained chronologically on day-today basis (on each day, starting
with new number 1), the General Diary entry reference is also mentioned
simultaneously in the FIR Book, while FIR number is mentioned in the General Diary
entry since both of these are prepared simultaneously.
56. It is relevant to point out that FIR Book is maintained with its number given on an
annual basis. This means that each FIR has a unique annual number given to it. This is
on similar lines as the Case Numbers given in courts. Due to this reason, it is possible
to keep a strict control and track over the registration of FIRs by the supervisory police
officers and by the courts, wherever necessary. Copy of each FIR is sent to the
superior officers and to the concerned Judicial Magistrate.
57. On the other hand, General Diary contains a huge number of other details of the
proceedings of each day. Copy of General Diary is not sent to the Judicial Magistrate
having jurisdiction over the police station, though its copy is sent to a superior police
officer. Thus, it is not possible to keep strict control of each and every FIR recorded in
the General Diary by superior police officers and/or the court in view of enormous
amount of other details mentioned therein and the numbers changing every day.
58. The signature of the complainant is obtained in the FIR Book as and when the
complaint is given to the police station. On the other hand, there is no such
requirement of obtaining signature of the complainant in the general diary. Moreover,
at times, the complaint given may consist of large number of pages, in which case it is
only the gist of the complaint which is to be recorded in the General Diary and not the
full complaint. This does not fit in with the suggestion that what is recorded in General
Diary should be considered to be the fulfillment/compliance of the requirement of
Section 154 of registration of FIR. In fact, the usual practice is to record the complete
complaint in the FIR book (or annex it with the FIR form) but record only about one or
two paragraphs (gist of the information) in the General Diary.
59. In view of the above, it is useful to point out that the Code was enacted under
Entry 2 of the Concurrent List of the Seventh Schedule to the Constitution which is
reproduced below:
2. Criminal procedure, including all matters included in the Code of Criminal Procedure at
the commencement of this Constitution.
On the other hand, Police Act, 1861 (or other similar Acts in respective States) were
enacted under Entry 2 of the State List of the Seventh Schedule to the Constitution,
which is reproduced below:
2. Police (including railway and village police) subject to the provisions of Entry 2A of List
I.

60. Now, at this juncture, it is pertinent to refer Article 254(1) of the Constitution,
which lays down the provisions relating to inconsistencies between the laws made by
the Parliament and the State Legislatures. Article 254(1) is reproduced as under:
254. Inconsistency between laws made by Parliament and laws made
by the Legislatures of States
(1) If any provision of a law made by the Legislature of a State is repugnant to
any provision of a law made by Parliament which Parliament is competent to
enact, or to any provision of an existing law with respect to one of the matters
enumerated in the Concurrent List, then, subject to the provisions of Clause (2),
the law made by Parliament, whether passed before or after the law made by
the Legislature of such State, or, as the case may be, the existing law, shall
prevail and the law made by the Legislature of the State shall, to the extent of
the repugnancy, be void.
Thus it is clear from the mandate of Article 254(1) of the Constitution that if there is
any inconsistency between the provisions of the Code and the Police Act, 1861, the
provisions of the Code will prevail and the provisions of the Police Act would be void to
the extent of the repugnancy.
61. If at all, there is any inconsistency in the provisions of Section 154 of the Code and
Section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to
be registered in the FIR book or in the General Diary, the provisions of Section 154 of
the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar
provisions of the respective corresponding Police Act or Rules in other respective
States) shall be void to the extent of the repugnancy. Thus, FIR is to be recorded in
the FIR Book, as mandated under Section 154 of the Code, and it is not correct to
state that information will be first recorded in the General Diary and only after
preliminary inquiry, if required, the information will be registered as FIR.
62. However, this Court in Tapan Kumar Singh (supra), held that a GD entry may
be treated as First information in an appropriate case, where it discloses the
commission of a cognizable offence. It was held as under:
15. It is the correctness of this finding which is assailed before us by the
Appellants. They contend that the information recorded in the GD entry does
disclose the commission of a cognizable offence. They submitted that even if
their contention, that after recording the GD entry only a preliminary inquiry
was made, is not accepted, they are still entitled to sustain the legality of the
investigation on the basis that the GD entry may be treated as a first
information report, since it disclosed the commission of a cognizable offence.
16. The parties before us did not dispute the legal position that a GD entry may
be treated as a first information report in an appropriate case, where it discloses
the commission of a cognizable offence. If the contention of the Appellants is
upheld, the order of the High Court must be set aside because if there was in
law a first information report disclosing the commission of a cognizable offence,
the police had the power and jurisdiction to investigate, and in the process of
investigation to conduct search and seizure. It is, therefore, not necessary for
us to consider the authorities cited at the Bar on the question of validity of the
preliminary inquiry and the validity of the search and seizure.

Xxx
19. The High Court fell into an error in thinking that the information received by
the police could not be treated as a first information report since the allegation
was vague inasmuch as it was not stated from whom the sum of rupees one
lakh was demanded and accepted. Nor was it stated that such demand or
acceptance was made as motive or reward for doing or forbearing to do any
official act, or for showing or forbearing to show in exercise of his official
function, favour or disfavour to any person or for rendering, attempting to
render any service or disservice to any person. Thus there was no basis for a
police officer to suspect the commission of an offence which he was empowered
under Section 156 of the Code to investigate.
63. It is thus unequivocally clear that registration of FIR is mandatory and also that it
is to be recorded in the FIR Book by giving a unique annual number to each FIR to
enable strict tracking of each and every registered FIR by the superior police officers
as well as by the competent court to which copies of each FIR are required to be sent.
'Information'
64. The legislature has consciously used the expression "information" in
Section 154(1) of the Code as against the expression used in Section 41(1)(a) and (g)
where the expression used for arresting a person without warrant is "reasonable
complaint" or "credible information". The expression under Section 154(1) of the Code
is not qualified by the prefix "reasonable" or "credible". The non qualification of the
word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code is
for the reason that the police officer should not refuse to record any information
relating to the commission of a cognizable offence on the ground that he is not
satisfied with the reasonableness or credibility of the information. In other words,
reasonableness or credibility of the said information is not a condition precedent for
the registration of a case.
65. The above view has been expressed by this Court in Bhajan Lal (supra) which is
as under:
32...in Section 154(1) of the Code, the legislature in its collective wisdom has carefully
and cautiously used the expression "information" without qualifying the same as in
Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and
"credible information" are used. Evidently, the non-qualification of the word "information"
in Section 154(1) unlike in Section 41(1)(a)and (g) of the Code may be for the reason
that the police officer should not refuse to record an information relating to the
commission of a cognizable offence and to register a case thereon on the ground that he
is not satisfied with the reasonableness or credibility of the information. In other words,
'reasonableness' or 'credibility' of the said information is not a condition precedent for
registration of a case. A comparison of the present Section 154 with those of the earlier
Codes will indicate that the legislature had purposely thought it fit to employ only the
word "information" without qualifying the said word.
66. In Parkash Singh Badal (supra), this Court held as under:
65. The legal mandate enshrined in Section 154(1) is that every information
relating to the commission of a "cognizable offence" [as defined under

Section 2(c) of the Code] if given orally (in which case it is to be reduced into
writing) or in writing to "an officer in charge of a police station" [within the
meaning of Section 2(o) of the Code] and signed by the informant should be
entered in a book to be kept by such officer in such form as the State
Government may prescribe which form is commonly called as "first information
report" and which act of entering the information in the said form is known as
registration of a crime or a case.
66. At the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence in compliance with the mandate of
Section 154(1) of the Code, the police officer concerned cannot embark upon an
inquiry as to whether the information laid by the informant is reliable and
genuine or otherwise and refuse to register a case on the ground that the
information is not reliable or credible. On the other hand, the officer in charge of
a police station is statutorily obliged to register a case and then to proceed with
the investigation if he has reason to suspect the commission of an offence which
he is empowered under Section 156 of the Code to investigate, subject to the
proviso to Section 157 thereof. In case an officer in charge of a police station
refuses to exercise the jurisdiction vested in him and to register a case on the
information of a cognizable offence reported and thereby violates the statutory
duty cast upon him, the person aggrieved by such refusal can send the
substance of the information in writing and by post to the Superintendent of
Police concerned who if satisfied that the information forwarded to him discloses
a cognizable offence, should either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him in the manner
provided by Sub-section (3) of Section 154 of the Code.
67. It has to be noted that in Section 154(1) of the Code, the legislature in its
collective wisdom has carefully and cautiously used the expression "information"
without qualifying the same as in Sections 41(1)(a) or (g) of the Code wherein
the expressions "reasonable complaint" and "credible information" are used.
Evidently,
the
non
qualification
of
the
word
"information"
in
Section 154(1) unlike in Sections 41(1)(a) and (g) of the Code may be for the
reason that the police officer should not refuse to record an information relating
to the commission of a cognizable offence and to register a case thereon on the
ground that he is not satisfied with the reasonableness or credibility of the
information. In other words, "reasonableness" or "credibility" of the said
information is not a condition precedent for registration of a case. A comparison
of the present Section 154 with those of the earlier Codes will indicate that the
legislature had purposely thought it fit to employ only the word "information"
without qualifying the said word. Section 139of the Code of Criminal Procedure
of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that
"every complaint or information" preferred to an officer in charge of a police
station should be reduced into writing which provision was subsequently
modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter
read that "every complaint" preferred to an officer in charge of a police station
shall be reduced in writing. The word "complaint" which occurred in previous
two Codes of 1861 and 1872 was deleted and in that place the word
"information" was used in the Codes of 1882 and 1898 which word is now used
in Sections154, 155, 157 and 190(c) of the Code. An overall reading of all the
Codes makes it clear that the condition which is sine qua non for recording a

first information report is that there must be an information and that

information must disclose a cognizable offence.
68. It is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer in charge of a police station satisfying
the requirements of Section 154(1) of the Code, the said police officer has no
other option except to enter the substance thereof in the prescribed form, that
is to say, to register a case on the basis of such information.
67. In Ramesh Kumari (supra), this Court held as under:
4. That a police officer mandatorily registers a case on a complaint of a
cognizable offence by the citizen under Section 154 of the Code is no more res
integra. The point of law has been set at rest by this Court in State of Haryana
v. Bhajan Lal. This Court after examining the whole gamut and intricacies of the
mandatory nature of Section 154 of the Code has arrived at the finding in paras
31 and 32 of the judgment as under:
31. At the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence in compliance with the
mandate of Section 154(1) of the Code, the police officer concerned
cannot embark upon an inquiry as to whether the information, laid by the
informant is reliable and genuine or otherwise and refuse to register a
case on the ground that the information is not reliable or credible. On the
other hand, the officer in charge of a police station is statutorily obliged
to register a case and then to proceed with the investigation if he has
reason to suspect the commission of an offence which he is empowered
under Section 156 of the Code to investigate, subject to the proviso to
Section 157. (As we have proposed to make a detailed discussion about
the power of a police officer in the field of investigation of a cognizable
offence within the ambit of Sections 156 and 157 of the Code in the
ensuing part of this judgment, we do not propose to deal with those
sections in extenso in the present context.) In case, an officer in charge
of a police station refuses to exercise the jurisdiction vested in him and to
register a case on the information of a cognizable offence reported and
thereby violates the statutory duty cast upon him, the person aggrieved
by such refusal can send the substance of the information in writing and
by post to the Superintendent of Police concerned who if satisfied that
the information forwarded to him discloses a cognizable offence, should
either investigate the case himself or direct an investigation to be made
by any police officer subordinate to him in the manner provided by Subsection (3) of Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the legislature in its
collective
wisdom
has
carefully
and
cautiously
used
the
expression 'information' without qualifying the same as in Section 41(1)
(a) or (g) of the Code wherein the expressions, 'reasonable
complaint' and 'credible information' are used. Evidently, the non
qualification of the word 'information' in Section 154(1) unlike in
Section 41(1)(a) and (g) of the Code may be for the reason that the
police officer should not refuse to record an information relating to the
commission of a cognizable offence and to register a case thereon on the

ground that he is not satisfied with the reasonableness or credibility of

the information. In other words, 'reasonableness' or 'credibility' of the
said information is not a condition precedent for registration of a case. A
comparison of the present Section 154 with those of the earlier Codes will
indicate that the legislature had purposely thought it fit to employ only
the word 'information' without qualifying the said word. Section 139 of
the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the
Legislative
Council
of
India
read
that 'every
complaint
or
information'preferred to an officer in charge of a police station should be
reduced into writing which provision was subsequently modified by
Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read
that 'every complaint' preferred to an officer in charge of a police station
shall be reduced in writing. The word 'complaint' which occurred in
previous two Codes of 1861 and 1872 was deleted and in that place the
word 'information' was used in the Codes of 1882 and 1898 which word is
now used in Sections 154, 155, 157 and 190(c) of the present Code of
1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear
that the condition which is sine qua non for recording a first information
report is that there must be information and that information must
disclose a cognizable offence.
(Emphasis in original)
Finally, this Court in para 33 said:
33. It is, therefore, manifestly clear that if any information disclosing a cognizable
offence is laid before an officer in charge of a police station satisfying the requirements
of Section 154(1) of the Code, the said police officer has no other option except to enter
the substance thereof in the prescribed form, that is to say, to register a case on the
basis of such information.
5. The views expressed by this Court in paras 31, 32 and 33 as quoted above
leave no manner of doubt that the provision of Section154 of the Code is
mandatory and the officer concerned is duty-bound to register the case on the
basis of such information disclosing cognizable offence.
68. In Ram Lal Narang (supra), this Court held as under:
14. Under the Code of Criminal Procedure, 1898, whenever an officer in charge
of the police station received information relating to the commission of a
cognizable offence, he was required to enter the substance thereof in a book
kept by him, for that purpose, in the prescribed form (Section 154 Code of
Criminal Procedure). Section 156 of the Code of Criminal Procedure invested the
Police with the power to investigate into cognizable offences without the order of
a Court. If, from the information received or otherwise, the officer in charge of a
police station suspected the commission of a cognizable offence, he was
required to send forthwith a report of the same to a Magistrate empowered to
take cognizance of such offence upon a police report and then to proceed in
person or depute one of his subordinate officers to proceed to the spot, to
investigate the facts and circumstances of the case and to take measures for
the discovery and arrest of the offender (Section 157 Code of Criminal
Procedure). He was required to complete the investigation without unnecessary

delay, and, as soon as it was completed, to forward to a Magistrate empowered

to take cognizance of the offence upon a police report, a report in the prescribed
form, setting forth the names of the parties, the nature of the information and
the names of the persons who appeared to be acquainted with the
circumstances of the case [Section 173(1)Code of Criminal Procedure]. He was
also required to state whether the accused had been forwarded in custody or
had been released on bail. Upon receipt of the report submitted under
Section 173(1) Code of Criminal Procedure by the officer in charge of the police
station, the Magistrate empowered to take cognizance of an offence upon a
police report might take cognizance of the offence [Section 190(1)(b) Code of
Criminal Procedure]. Thereafter, if, in the opinion of the Magistrate taking
cognizance of the offence, there was sufficient ground for proceeding, the
Magistrate was required to issue the necessary process to secure the
attendance of the accused (Section 204 Code of Criminal Procedure). The
scheme of the Code thus was that the FIR was followed by investigation, the
investigation led to the submission of a report to the Magistrate, the Magistrate
took cognizance of the offence on receipt of the police report and, finally, the
Magistrate taking cognizance issued process to the accused.
15. The police thus had the statutory right and duty to "register" every
information relating to the commission of a cognizable offence. The police also
had the statutory right and duty to investigate the facts and circumstances of
the case where the commission of a cognizable offence was suspected and to
submit the report of such investigation to the Magistrate having jurisdiction to
take cognizance of the offence upon a police report. These statutory rights and
duties of the police were not circumscribed by any power of superintendence or
interference in the Magistrate; nor was any sanction required from a Magistrate
to empower the Police to investigate into a cognizable offence. This position in
law was well-established. In King Emperor v. Khwaja Nazir Ahmad the Privy
Council observed as follows:
Just as it is essential that everyone accused of a crime should have free access to a
Court of justice, so that he may be duly acquitted if found not guilty of the offence with
which he is charged, so it is of the utmost importance that the judiciary should not
interfere with the police in matters which are within their province and into which the law
imposes on them the duty of inquiry. In India, as has been shown, 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, as Their
Lordships think, be an unfortunate result if it should be held possible to interfere with
those statutory rules by an exercise of the inherent jurisdiction of the Court. The
functions of the judiciary and the police are complementary, not overlapping, and the
combination of individual liberty with a due observance of law and order is only to be
obtained by leaving each to exercise its own function, always of course, subject to the
right of the Courts to intervene in an appropriate case when moved under Section 491 of
the Code of Criminal Procedure to give directions in the nature of Habeas Corpus. In
such a case as the present, however, the Court's functions begin when a charge is
preferred before it and not until then... In the present case, the police have under
Sections 154 and 156 of the Code of Criminal Procedure, a statutory right to investigate
a cognizable offence without requiring the sanction of the Court....
Ordinarily, the right and duty of the police would end with the submission of a
report under Section 173(1) Code of Criminal Procedure upon receipt of which it

was up to the Magistrate to take or not to take cognizance of the offence. There
was no provision in the 1898 Code prescribing the procedure to be followed by
the police, where, after the submission of a report under Section 173(1) Code of
Criminal Procedure and after the Magistrate had taken cognizance of the
offence, fresh facts came to light which required further investigation. There
was, of course, no express provision prohibiting the police from launching upon
an investigation into the fresh facts coming to light after the submission of the
report under Section 173(1) or after the Magistrate had taken cognizance of the
offence. As we shall presently point out, it was generally thought by many High
Courts, though doubted by a few, that the police were not barred from further
investigation by the circumstance that a report under Section 173(1) had
already been submitted and a Magistrate had already taken cognizance of the
offence. The Law Commission in its 41st report recognized the position and
recommended that the right of the police to make further investigation should
be statutorily affirmed. The Law Commission said:
14.23. A report under Section 173 is normally the end of the investigation. Sometimes,
however, the police officer after submitting the report under Section 173 comes upon
evidence bearing on the guilt or innocence of the accused. We should have thought that
the police officer can collect that evidence and send it to the Magistrate concerned. It
appears, however, that Courts have sometimes taken the narrow view that once a final
report under Section 173 has been sent, the police cannot touch the case again and
cannot re-open the investigation. This view places a hindrance in the way of the
investigating agency, which can be very unfair to the prosecution and, for that matter,
even to the accused. It should be made clear in Section 173 that the competent police
officer can examine such evidence and send a report to the Magistrate. Copies
concerning the fresh material must of course be furnished to the accused.
Accordingly, in the Code of Criminal Procedure, 1973, a new provision,
Section 173(8), was introduced and it says:
Nothing in this section shall be deemed to preclude further investigation in respect of an
offence after a report under Sub-section (2) has been forwarded to the Magistrate and,
where upon such investigation, the officer in charge of the police station obtains further
evidence, oral or documentary, he shall forward to the Magistrate a further report or
reports regarding such evidence in the form prescribed; and the provisions of Subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as
they apply in relation to a report forwarded under Sub-section (2).
69. In Lallan Chaudhary (supra), this Court held as under:
8. Section 154 of the Code thus casts a statutory duty upon the police officer to
register the case, as disclosed in the complaint, and then to proceed with the
investigation. The mandate of Section 154 is manifestly clear that if any
information disclosing a cognizable offence is laid before an officer in charge of a
police station, such police officer has no other option except to register the case
on the basis of such information.
9. In Ramesh Kumari v. State (NCT of Delhi) this Court has held that the
provision of Section 154 is mandatory. Hence, the police officer concerned is
duty-bound to register the case on receiving information disclosing cognizable
offence. Genuineness or credibility of the information is not a condition

precedent for registration of a case. That can only be considered after

registration of the case.
10. The mandate of Section 154 of the Code is that at the stage of registration
of a crime or a case on the basis of the information disclosing a cognizable
offence, the police officer concerned cannot embark upon an inquiry as to
whether the information, laid by the informant is reliable and genuine or
otherwise and refuse to register a case on the ground that the information is not
relevant or credible. In other words, reliability, genuineness and credibility of
the information are not the conditions precedent for registering a case under
Section 154 of the Code.
A perusal of the above-referred judgments clarify that the reasonableness or
creditability of the information is not a condition precedent for the registration of a
case.
Preliminary Inquiry
70. Mr. Naphade relied on the following decisions in support of his arguments that if
the police officer has a doubt about the veracity of the accusation, he has to conduct
preliminary inquiry, viz., E.P. Royappa v. State of Tamil Nadu MANU/SC/0380/1973
: (1974) 4 SCC 3, Maneka Gandhi (supra), S.M.D. Kiran Pasha v. Government
of Andhra Pradesh MANU/SC/0473/1989 : (1990) 1 SCC 328, D.K. Basu v. State
of
W.B. MANU/SC/0157/1997 :
(1997)
1
SCC
416, Uma
Shankar
Sitani v. Commissioner of Police, Delhi and Ors. : (1996) 11 SCC 714, Preeti
Gupta (supra), Francis Coralie Mullin v.Administrator, Union Territory of
Delhi MANU/SC/0517/1981 : (1981) 1 SCC 608, Common Cause, A Registered
Society v. Union of IndiaMANU/SC/0437/1999 : (1999) 6 SCC 667, District
Registrar and Collector, Hyderabad v. Canara Bank MANU/SC/0935/2004 :
(2005) 1 SCC 496 andRanjitsing Brahmajeetsing Sharma v. State of
Maharashtra MANU/SC/0268/2005 : (2005) 5 SCC 294.
71. Learned senior counsel for the State further vehemently contended that in
appropriate cases, it would be proper for a police officer, on receipt of a complaint of a
cognizable offence, to satisfy himself that prima facie the allegations levelled against
the accused in the complaint are credible. In this regard, Mr. Naphade cited the
following decisions, viz. Tapan Kumar Singh (supra), Bhagwant Kishore Joshi
(supra), P. Sirajuddin (supra), Sevi (supra), Shashikant (supra), Rajinder
Singh Katoch (supra), Vineet Narain v. Union of India MANU/SC/0827/1998 :
(1998) 1 SCC 226, Elumalai v. State of Tamil NaduMANU/TN/0610/1983 : 1983
LW
(CRL)
121, A.
Lakshmanarao v. Judicial
Magistrate,
Parvatipuram MANU/SC/0076/1970 : AIR 1971 SC 186, State of Uttar
Pradesh v. Ram Sagar Yadav and Ors. MANU/SC/0118/1985 : (1985) 1 SCC
552, Mona Panwar v. High Court of Judicature of AllahabadMANU/SC/0087/2011
: (2011) 3 SCC 496, Apren Joseph v. State of Kerala MANU/SC/0078/1972 :
(1973) 3 SCC 114, King Emperor v. Khwaja Nazir Ahmad MANU/PR/0007/1944 :
AIR 1945 PC 18 and Sarangdharsingh Shivdassingh Chavan (supra).
72. He further pointed out that the provisions have to be read in the light of the
principle of malicious prosecution and the fundamental rights guaranteed under
Articles 14, 19 and 21. It is the stand of learned senior counsel that every citizen has a
right not to be subjected to malicious prosecution and every police officer has an in-

built duty under Section 154 to ensure that an innocent person is not falsely implicated
in a criminal case. If despite the fact that the police officer is not prima facie satisfied,
as regards commission of a cognizable offence and proceeds to register an FIR and
carries out an investigation, it would result in putting the liberty of a citizen in
jeopardy. Therefore, learned senior counsel vehemently pleaded for a preliminary
inquiry before registration of FIR.
73. In terms of the language used in Section 154 of the Code, the police is duty bound
to proceed to conduct investigation into a cognizable offence even without receiving
information (i.e. FIR) about commission of such an offence, if the officer in charge of
the police station otherwise suspects the commission of such an offence. The
legislative intent is therefore quite clear, i.e., to ensure that every cognizable offence is
promptly investigated in accordance with law. This being the legal position, there is no
reason that there should be any discretion or option left with the police to register or
not to register an FIR when information is given about the commission of a cognizable
offence. Every cognizable offence must be investigated promptly in accordance with
law and all information provided under Section 154 of the Code about the commission
of a cognizable offence must be registered as an FIR so as to initiate an offence. The
requirement of Section 154of the Code is only that the report must disclose the
commission of a cognizable offence and that is sufficient to set the investigating
machinery into action.
74. The insertion of Sub-section (3) of Section 154, by way of an amendment, reveals
the intention of the legislature to ensure that no information of commission of a
cognizable offence must be ignored or not acted upon which would result in unjustified
protection of the alleged offender/accused.
75. The maxim expression unius est exclusion alterius (expression of one thing is the
exclusion of another) applies in the interpretation of Section 154 of the Code, where
the mandate of recording the information in writing excludes the possibility of not
recording an information of commission of a cognizable crime in the special register.
76. Therefore, conducting an investigation into an offence after registration of FIR
under Section 154 of the Code is the "procedure established by law" and, thus, is in
conformity with Article 21 of the Constitution. Accordingly, the right of the accused
under Article 21 of the Constitution is protected if the FIR is registered first and then
the investigation is conducted in accordance with the provisions of law.
77. The term inquiry as per Section 2(g) of the Code reads as under:
2(g) - "inquiry" means every inquiry, other than a trial, conducted under this Code by
a Magistrate or Court.
Hence, it is clear that inquiry under the Code is relatable to a judicial act and not to
the steps taken by the Police which are either investigation after the stage of
Section 154 of the Code or termed as 'Preliminary Inquiry' and which are prior to the
registration of FIR, even though, no entry in the General Diary/Station Diary/Daily
Diary has been made.
78. Though there is reference to the term 'preliminary inquiry' and 'inquiry' under
Sections 159 and Sections 202 and 340 of the Code, that is a judicial exercise

undertaken by the Court and not by the Police and is not relevant for the purpose of
the present reference.
79. Besides, learned senior counsel relied on the special procedures prescribed under
the CBI manual to be read into Section 154. It is true that the concept of "preliminary
inquiry" is contained in Chapter IX of the Crime Manual of the CBI. However, this Crime
Manual is not a statute and has not been enacted by the legislature. It is a set of
administrative orders issued for internal guidance of the CBI officers. It cannot
supersede the Code. Moreover, in the absence of any indication to the contrary in the
Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the
concept of holding of preliminary inquiry in the scheme of the Code of Criminal
Procedure. At this juncture, it is also pertinent to submit that the CBI is constituted
under a Special Act, namely, the Delhi Special Police Establishment Act, 1946 and it
derive its power to investigate from this Act.
80. It may be submitted that Sections 4(2) and 5 of the Code permit special
procedures to be followed for special Acts. Section 4 of the Code lays down as under:
Section 4. Trial of offences under the Indian Penal Code and other
laws. (1) All offences under the Indian Penal Code (45 of 1860) shall be
investigated, inquired into, tried, and otherwise dealt with according to the
provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried,
and otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such offences.
It is thus clear that for offences under laws other than Indian Penal Code, different
provisions can be laid down under a special Act to regulate the investigation, inquiry,
trial etc., of those offences. Section 4(2) of the Code protects such special provisions.
81. Moreover, Section 5 of the Code lays down as under:
Section 5. Saving-Nothing contained in this Code shall, in the absence of a specific
provision to the contrary, affect any special or local law for the time being in force, or
any special jurisdiction or power conferred, or any special form of procedure prescribed,
by any other law for the time being in force.
Thus, special provisions contained in the DSPE Act relating to the powers of the CBI
are protected also by Section 5 of the Code.
82. In view of the above specific provisions in the Code, the powers of the CBI under
the DSPE Act, cannot be equated with the powers of the regular State Police under the
Code.
Significance and Compelling reasons for registration of FIR at the earliest
83. The object sought to be achieved by registering the earliest information as FIR is
inter alia two fold: one, that the criminal process is set into motion and is well
documented from the very start; and second, that the earliest information received in

relation to the commission of a cognizable offence is recorded so that there cannot be

any embellishment etc., later.
84. Principles of democracy and liberty demand a regular and efficient check on police
powers. One way of keeping check on authorities with such powers is by documenting
every action of theirs. Accordingly, under the Code, actions of the police etc., are
provided to be written and documented. For example, in case of arrest under
Section 41(1)(b) of the Code, arrest memo along with the grounds has to be in writing
mandatorily; under Section 55 of the Code, if an officer is deputed to make an arrest,
then the superior officer has to write down and record the offence etc., for which the
person is to be arrested; under Section 91 of the Code, a written order has to be
passed by the concerned officer to seek documents; under Section 160 of the Code, a
written notice has to be issued to the witness so that he can be called for recording of
his/her statement, seizure memo/panchnama has to be drawn for every article seized
etc.
85. The police is required to maintain several records including Case Diary as provided
under Section 172 of the Code, General Diary as provided under Section44 of the
Police Act etc., which helps in documenting every information collected, spot visited
and all the actions of the police officers so that their activities can be documented.
Moreover, every information received relating to commission of a non-cognizable
offence also has to be registered under Section 155 of the Code.
86. The underpinnings of compulsory registration of FIR is not only to ensure
transparency in the criminal justice delivery system but also to ensure 'judicial
oversight'. Section 157(1) deploys the word 'forthwith'. Thus, any information received
under Section 154(1) or otherwise has to be duly informed in the form of a report to
the Magistrate. Thus, the commission of a cognizable offence is not only brought to the
knowledge of the investigating agency but also to the subordinate judiciary.
87. The Code contemplates two kinds of FIRs. The duly signed FIR under
Section 154(1) is by the informant to the concerned officer at the police station. The
second kind of FIR could be which is registered by the police itself on any information
received or other than by way of an informant [Section 157(1)] and even this
information has to be duly recorded and the copy should be sent to the Magistrate
forthwith.
88. The registration of FIR either on the basis of the information furnished by the
informant under Section 154(1) of the Code or otherwise under Section 157(1)of the
Code is obligatory. The obligation to register FIR has inherent advantages:
a) It is the first step to 'access to justice' for a victim.
b) It upholds the 'Rule of Law' inasmuch as the ordinary person brings forth the
commission of a cognizable crime in the knowledge of the State.
c) It also facilitates swift investigation and sometimes even prevention of the
crime. In both cases, it only effectuates the regime of law.
d) It leads to less manipulation in criminal cases and lessens incidents of 'antedates' FIR or deliberately delayed FIR.

89. In Thulia Kali v. State of Tamil Nadu MANU/SC/0276/1972

393, this Court held as under:

: (1972) 3 SCC

12...First information report in a criminal case is an extremely vital and valuable piece of
evidence for the purpose of corroborating the oral evidence adduced at the trial. The
importance of the above report can hardly be overestimated from the standpoint of the
accused. The object of insisting upon prompt lodging of the report to the police in
respect of commission of an offence is to obtain early information regarding the
circumstances in which the crime was committed, the names of the actual culprits and
the part played by them as well as the names of eyewitnesses present at the scene of
occurrence. Delay in lodging the first information report quite often results in
embellishment which is a creature of afterthought. On account of delay, the report not
only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of
coloured version, exaggerated account or concocted story as a result of deliberation and
consultation. It is, therefore, essential that the delay in the lodging of the first
information report should be satisfactorily explained....
90. In Tapan Kumar Singh (supra), it was held as under:
20. It is well settled that a first information report is not an encyclopaedia, which must
disclose all facts and details relating to the offence reported. An informant may lodge a
report about the commission of an offence though he may not know the name of the
victim or his assailant. He may not even know how the occurrence took place. A first
informant need not necessarily be an eyewitness so as to be able to disclose in great
detail all aspects of the offence committed. What is of significance is that the information
given must disclose the commission of a cognizable offence and the information so
lodged must provide a basis for the police officer to suspect the commission of a
cognizable offence. At this stage it is enough if the police officer on the basis of the
information given suspects the commission of a cognizable offence, and not that he must
be convinced or satisfied that a cognizable offence has been committed. If he has
reasons to suspect, on the basis of information received, that a cognizable offence may
have been committed, he is bound to record the information and conduct an
investigation. At this stage it is also not necessary for him to satisfy himself about the
truthfulness of the information. It is only after a complete investigation that he may be
able to report on the truthfulness or otherwise of the information. Similarly, even if the
information does not furnish all the details he must find out those details in the course of
investigation and collect all the necessary evidence. The information given disclosing the
commission of a cognizable offence only sets in motion the investigative machinery, with
a view to collect all necessary evidence, and thereafter to take action in accordance with
law. The true test is whether the information furnished provides a reason to suspect the
commission of an offence, which the police officer concerned is empowered under
Section 156 of the Code to investigate. If it does, he has no option but to record the
information and proceed to investigate the case either himself or depute any other
competent officer to conduct the investigation. The question as to whether the report is
true, whether it discloses full details regarding the manner of occurrence, whether the
accused is named, and whether there is sufficient evidence to support the allegations are
all matters which are alien to the consideration of the question whether the report
discloses the commission of a cognizable offence. Even if the information does not give
full details regarding these matters, the investigating officer is not absolved of his duty
to investigate the case and discover the true facts, if he can.
91. In Madhu Bala (supra), this Court held:

6. Coming first to the relevant provisions of the Code, Section 2(d) defines
"complaint" to mean any allegation made orally or in writing to a Magistrate,
with a view to his taking action under the Code, that some person, whether
known or unknown has committed an offence, but does not include a police
report. Under Section 2(c) "cognizable offence" means an offence for which, and
"cognizable case" means a case in which a police officer may in accordance with
the First Schedule (of the Code) or under any other law for the time being in
force, arrest without a warrant. Under Section 2(r) "police report" means a
report forwarded by a police officer to a Magistrate under Sub-section (2) of
Section 173 of the Code. Chapter XII of the Code comprising Sections 154 to
176relates to information to the police and their powers to investigate.
Section 154 provides, inter alia, that the officer in charge of a police station
shall reduce into writing every information relating to the commission of a
cognizable offence given to him orally and every such information if given in
writing shall be signed by the person giving it and the substance thereof shall be
entered in a book to be kept by such officer in such form as the State
Government may prescribe in this behalf. Section 156 of the Code with which
we are primarily concerned in these appeals reads as under....
9. The mode and manner of registration of such cases are laid down in the
Rules framed by the different State Governments under the Indian Police Act,
1861. As in the instant case we are concerned with Punjab Police Rules, 1934
(which are applicable to Punjab, Haryana, Himachal Pradesh and Delhi) framed
under the said Act we may now refer to the relevant provisions of those Rules.
Chapter XXIV of the said Rules lays down the procedure an officer in charge of a
police station has to follow on receipt of information of commission of crime.
Under Rule 24.1 appearing in the Chapter every information covered by
Section 154 of the Code must be entered in the First Information Report
Register and the substance thereof in the daily diary. Rule 24.5 says that the
First Information Report Register shall be a printed book in Form 24.5(1)
consisting of 200 pages and shall be completely filled before a new one is
commenced. It further requires that the cases shall bear an annual serial
number in each police station for each calendar year. The other requirements of
the said Rules need not be detailed as they have no relevance to the point at
issue.
10. From the foregoing discussion it is evident that whenever a Magistrate
directs an investigation on a "complaint" the police has to register a cognizable
case on that complaint treating the same as the FIR and comply with the
requirements of the above Rules. It, therefore, passes our comprehension as to
how the direction of a Magistrate asking the police to "register a case" makes an
order of investigation under Section 156(3) legally unsustainable. Indeed, even
if a Magistrate does not pass a direction to register a case, still in view of the
provisions of Section 156(1) of the Code which empowers the police to
investigate into a cognizable "case" and the Rules framed under the Indian
Police Act, 1861 it (the police) is duty-bound to formally register a case and
then investigate into the same. The provisions of the Code, therefore, do not in
any way stand in the way of a Magistrate to direct the police to register a case
at the police station and then investigate into the same. In our opinion when an
order for investigation under Section 156(3) of the Code is to be made the
proper direction to the police would be "to register a case at the police station

treating the complaint as the first information report and investigate into the
same.
92. According to the Statement of Objects and Reasons, protection of the interests of
the poor is clearly one of the main objects of the Code. Making registration of
information relating to commission of a cognizable offence mandatory would help the
society, especially, the poor in rural and remote areas of the country.
93. The Committee on Reforms of Criminal Justice System headed by Dr. Justice V.S.
Malimath also noticed the plight faced by several people due to non-registration of
FIRs and recommended that action should be taken against police officers who refuse
to register such information. The Committee observed:
7.19.1 According to the Section 154 of the Code of Criminal Procedure, the
office incharge of a police station is mandated to register every information oral
or written relating to the commission of a cognizable offence. Non-registration
of cases is a serious complaint against the police. The National Police
Commission in its 4th report lamented that the police "evade registering cases
for taking up investigation where specific complaints are lodged at the police
stations". It referred to a study conducted by the Indian Institute of Public
Opinion, New Delhi regarding "Image of the Police in India" which observed that
over 50% of the Respondents mention non-registration of complaints as a
common practice in police stations.
7.19.2 The Committee recommends that all complaints should be registered
promptly, failing which appropriate action should be taken. This would
necessitate change in the mind - set of the political executive and that of senior
officers.
7.19.4 There are two more aspects relating to registration. The first is
minimization of offences by the police by way of not invoking appropriate
sections of law. We disapprove of this tendency. Appropriate sections of law
should be invoked in each case unmindful of the gravity of offences involved.
The second issue is relating to the registration of written complaints. There is an
increasing tendency amongst the police station officers to advise the
informants, who come to give oral complaints, to bring written complaints. This
is wrong. Registration is delayed resulting in valuable loss of time in launching
the investigation and apprehension of criminals. Besides, the complainant gets
an opportunity to consult his friends, relatives and sometimes even lawyers and
often tends to exaggerate the crime and implicate innocent persons. This
eventually has adverse effect at the trial. The information should be reduced in
writing by the SH, if given orally, without any loss of time so that the first
version of the alleged crime comes on record.
7.20.11 It has come to the notice of the Committee that even in cognizable
cases quite often the Police officers do not entertain the complaint and send the
complainant away saying that the offence is not cognizable. Sometimes the
police twist facts to bring the case within the cognizable category even though it
is non-cognizable, due to political or other pressures or corruption. This menace
can be stopped by making it obligatory on the police officer to register every
complaint received by him. Breach of this duty should become an offence
punishable in law to prevent misuse of the power by the police officer.

94. It means that the number of FIRs not registered is approximately equivalent to the
number of FIRs actually registered. Keeping in view the NCRB figures that show that
about 60 lakh cognizable offences were registered in India during the year 2012, the
burking of crime may itself be in the range of about 60 lakh every year. Thus, it is seen
that such a large number of FIRs are not registered every year, which is a clear
violation of the rights of the victims of such a large number of crimes.
95. Burking of crime leads to dilution of the rule of law in the short run; and also has a
very negative impact on the rule of law in the long run since people stop having
respect for rule of law. Thus, non-registration of such a large number of FIRs leads to a
definite lawlessness in the society.
96. Therefore, reading Section 154 in any other form would not only be detrimental to
the Scheme of the Code but also to the society as a whole. It is thus seen that this
Court has repeatedly held in various decided cases that registration of FIR is
mandatory if the information given to the police under Section 154 of the Code
discloses the commission of a cognizable offence.
Is there a likelihood of misuse of the provision?
97. Another, stimulating argument raised in support of preliminary inquiry is that
mandatory registration of FIRs will lead to arbitrary arrest, which will directly be in
contravention of Article 21 of the Constitution.
98. While registration of FIR is mandatory, arrest of the accused immediately on
registration of FIR is not at all mandatory. In fact, registration of FIR and arrest of an
accused person are two entirely different concepts under the law, and there are
several safeguards available against arrest. Moreover, it is also pertinent to mention
that an accused person also has a right to apply for "anticipatory bail" under the
provisions of Section 438 of the Code if the conditions mentioned therein are satisfied.
Thus, in appropriate cases, he can avoid the arrest under that provision by obtaining
an order from the Court.
99. It is also relevant to note that in Joginder Kumar v. State of U.P. and
Ors. MANU/SC/0311/1994 : (1994) 4 SCC 260, this Court has held that arrest
cannot be made by police in a routine manner. Some important observations are
reproduced as under:
20...No arrest can be made in a routine manner on a mere allegation of commission of
an offence made against a person. It would be prudent for a police officer in the interest
of protection of the constitutional rights of a citizen and perhaps in his own interest that
no arrest should be made without a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a complaint and a reasonable belief
both as to the person's complicity and even so as to the need to effect arrest. Denying a
person of his liberty is a serious matter. The recommendations of the Police Commission
merely reflect the constitutional concomitants of the fundamental right to personal
liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity
in an offence. There must be some reasonable justification in the opinion of the officer
effecting the arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues notice to person to attend
the Station House and not to leave the Station without permission would do.

100. The registration of FIR under Section 154 of the Code and arrest of an accused
person under Section 41 are two entirely different things. It is not correct to say that
just because FIR is registered, the accused person can be arrested immediately. It is
the imaginary fear that "merely because FIR has been registered, it would require
arrest of the accused and thereby leading to loss of his reputation" and it should not
be allowed by this Court to hold that registration of FIR is not mandatory to avoid such
inconvenience to some persons. The remedy lies in strictly enforcing the safeguards
available against arbitrary arrests made by the police and not in allowing the police to
avoid mandatory registration of FIR when the information discloses commission of a
cognizable offence.
101. This can also be seen from the fact that Section 151 of the Code allows a police
officer to arrest a person, even before the commission of a cognizable offence, in order
to prevent the commission of that offence, if it cannot be prevented otherwise. Such
preventive arrests can be valid for 24 hours. However, a Maharashtra State
amendment to Section 151 allows the custody of a person in that State even for up to
a period of 30 days (with the order of the Judicial Magistrate) even before a cognizable
offence is committed in order to prevent commission of such offence. Thus, the arrest
of a person and registration of FIR are not directly and/or irreversibly linked and they
are entirely different concepts operating under entirely different parameters. On the
other hand, if a police officer misuses his power of arrest, he can be tried and punished
under Section 166.
102. Besides, the Code gives power to the police to close a matter both before and
after investigation. A police officer can foreclose an FIR before an investigation under
Section 157 of the Code, if it appears to him that there is no sufficient ground to
investigate the same. The Section itself states that a police officer can start
investigation when he has a 'reason to suspect the commission of an offence'.
Therefore, the requirements of launching an investigation under Section 157 of the
Code are higher than the requirement under Section 154 of the Code. The police
officer can also, in a given case, investigate the matter and then file a final report
under Section 173 of the Code seeking closure of the matter. Therefore, the police is
not liable to launch an investigation in every FIR which is mandatorily registered on
receiving information relating to commission of a cognizable offence.
103. Likewise, giving power to the police to close an investigation, Section 157 of the
Code also acts like a check on the police to make sure that it is dispensing its function
of investigating cognizable offences. This has been recorded in the 41 st Report of the
Law Commission of India on the Code of Criminal Procedure, 1898 as follows:
14.1...If the offence does not appear to be serious and if the station-house
officer thinks there is no sufficient ground for starting an investigation, he need
not investigate but, here again, he has to send a report to the Magistrate who
can direct the police to investigate, or if the Magistrate thinks fit, hold an inquiry
himself.
14.2. A noticeable feature of the scheme as outlined above is that a Magistrate
is kept in the picture at all stages of the police investigation, but he is not
authorized to interfere with the actual investigation or to direct the police how
that investigation is to be conducted.

Therefore, the Scheme of the Code not only ensures that the time of the police should
not be wasted on false and frivolous information but also that the police should not
intentionally refrain from doing their duty of investigating cognizable offences. As a
result, the apprehension of misuse of the provision of mandatory registration of FIR is
unfounded and speculative in nature.
104. It is the stand of Mr. Naphade, learned senior Counsel for the State of
Maharashtra that when an innocent person is falsely implicated, he not only suffers
from loss of reputation but also from mental tension and his personal liberty is
seriously impaired. He relied on the Maneka Gandhi (supra), which held the
proposition that the law which deprives a person of his personal liberty must be
reasonable both from the stand point of substantive as well as procedural aspect is
now firmly established in our Constitutional law. Therefore, he pleaded for a fresh look
at Section 154 of the Code, which interprets Section 154 of the Code in conformity
with the mandate of Article 21.
105. It is true that a delicate balance has to be maintained between the interest of the
society and protecting the liberty of an individual. As already discussed above, there
are already sufficient safeguards provided in the Code which duly protect the liberty of
an individual in case of registration of false FIR. At the same time, Section 154 was
drafted keeping in mind the interest of the victim and the society. Therefore, we are of
the cogent view that mandatory registration of FIRs under Section 154 of the Code will
not be in contravention of Article 21 of the Constitution as purported by various
counsel.
Exceptions:
106. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates
the mandatory registration of FIRs on receipt of all cognizable offence, yet, there may
be instances where preliminary inquiry may be required owing to the change in genesis
and novelty of crimes with the passage of time. One such instance is in the case of
allegations relating to medical negligence on the part of doctors. It will be unfair and
inequitable to prosecute a medical professional only on the basis of the allegations in
the complaint.
107. In the context of medical negligence cases, in Jacob Mathew (supra), it was
held by this Court as under:
51. We may not be understood as holding that doctors can never be prosecuted
for an offence of which rashness or negligence is an essential ingredient. All that
we are doing is to emphasise the need for care and caution in the interest of
society; for, the service which the medical profession renders to human beings
is probably the noblest of all, and hence there is a need for protecting doctors
from frivolous or unjust prosecutions. Many a complainant prefer recourse to
criminal process as a tool for pressurising the medical professional for extracting
uncalled for or unjust compensation. Such malicious proceedings have to be
guarded against.
52. Statutory rules or executive instructions incorporating certain guidelines
need to be framed and issued by the Government of India and/or the State
Governments in consultation with the Medical Council of India. So long as it is
not done, we propose to lay down certain guidelines for the future which should

govern the prosecution of doctors for offences of which criminal rashness or

criminal negligence is an ingredient. A private complaint may not be entertained
unless the complainant has produced prima facie evidence before the court in
the form of a credible opinion given by another competent doctor to support the
charge of rashness or negligence on the part of the accused doctor. The
investigating officer should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and competent medical
opinion preferably from a doctor in government service, qualified in that branch
of medical practice who can normally be expected to give an impartial and
unbiased opinion applying the Bolam test to the facts collected in the
investigation. A doctor accused of rashness or negligence, may not be arrested
in a routine manner (simply because a charge has been levelled against him).
Unless his arrest is necessary for furthering the investigation or for collecting
evidence or unless the investigating officer feels satisfied that the doctor
proceeded against would not make himself available to face the prosecution
unless arrested, the arrest may be withheld.
108. In the context of offences relating to corruption, this Court in P. Sirajuddin
(supra) expressed the need for a preliminary inquiry before proceeding against public
servants.
109. Similarly, in Tapan Kumar Singh (supra), this Court has validated a preliminary
inquiry prior to registering an FIR only on the ground that at the time the first
information is received, the same does not disclose a cognizable offence.
110. Therefore, in view of various counter claims regarding registration or nonregistration, what is necessary is only that the information given to the police must
disclose the commission of a cognizable offence. In such a situation, registration of an
FIR is mandatory. However, if no cognizable offence is made out in the information
given, then the FIR need not be registered immediately and perhaps the police can
conduct a sort of preliminary verification or inquiry for the limited purpose of
ascertaining as to whether a cognizable offence has been committed. But, if the
information given clearly mentions the commission of a cognizable offence, there is no
other option but to register an FIR forthwith. Other considerations are not relevant at
the stage of registration of FIR, such as, whether the information is falsely given,
whether the information is genuine, whether the information is credible etc. These are
the issues that have to be verified during the investigation of the FIR. At the stage of
registration of FIR, what is to be seen is merely whether the information given ex facie
discloses the commission of a cognizable offence. If, after investigation, the
information given is found to be false, there is always an option to prosecute the
complainant for filing a false FIR.
Conclusion/Directions:
111. In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the
information discloses commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but
indicates the necessity for an inquiry, a preliminary inquiry may be conducted
only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR
must be registered. In cases where preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure must be supplied to the first
informant forthwith and not later than one week. It must disclose reasons in
brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable
offence is disclosed. Action must be taken against erring officers who do not
register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of
the information received but only to ascertain whether the information reveals
any cognizable offence.
(vi) As to what type and in which cases preliminary inquiry is to be conducted
will depend on the facts and circumstances of each case. The category of cases
in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months delay in reporting the matter
without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which
may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time bound and in any case
it should not exceed 7 days. The fact of such delay and the causes of it must be
reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all
information received in a police station, we direct that all information relating to
cognizable offences, whether resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously reflected in the said Diary and
the decision to conduct a preliminary inquiry must also be reflected, as
mentioned above.
112. With the above directions, we dispose of the reference made to us. List all the
matters before the appropriate Bench for disposal on merits.

Equivalent

Citation: AIR1970SC786,

1970(2)AnWR81,

1971(19)BLJR49,

1970CriLJ764, (1970)1SCC653, (1970)1SCC(Cri)258, [1970]3SCR946

IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 256 of 1969
Decided On: 10.03.1970
Appellants:S.N. Sharma
Vs.
Respondent:Bipen Kumar Tiwari and Ors.

Hon'ble
C.A. Vaidialingam, S.M. Sikri and Vashishtha Bhargava, JJ.
Counsels:
For
Appellant/Petitioner/Plaintiff: R.K.
Francis and S. Chakravarty, Advs

Garg, S.C.

Judges/Coram:

Agrawal, D.P.

Singh, V.J.

For Respondents/Defendant: O.P. Rana, Adv. for respondent No. 2

Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Criminal Procedure (CrPC) - Section 156, Code of Criminal Procedure (CrPC) Section 156(1), Code of Criminal Procedure (CrPC) - Section 156(2), Code of Criminal
Procedure (CrPC) - Section 156(3), Code of Criminal Procedure (CrPC) - Section
157, Code of Criminal Procedure (CrPC) - Section 157(1), Code of Criminal Procedure
(CrPC) - Section 159, Code of Criminal Procedure (CrPC) - Section 190 Constitution of
India - Article 226
Prior
History:
Appeal by special leave from the judgment and order dated January 15, 1969 of the
Allahabad High Court in Criminal Misc. Case 1770 of 1968-Citing

Reference:

Discussed
1
Mentioned
2

Case
Note:
Criminal - Investigation by police - Section 159 of Criminal Procedure Code At the instigation of appellant goondas stabbed respondent with knife and
caused injuries to others - Appellant filed application before Magistrate to
stop the police from investigation alleging a false report had been lodged
against him at the connivance and instance of the local police - Magistrate
directed the police to stop the investigation and decided to hold the enquiry
himself - On appeal High Court quashed the Order of Judicial Magistrate and
held that police was at liberty to conclude the investigation and submits it
report - Hence, present appeal - Under scheme of the Criminal Procedure

Code power of the police to investigate a cognizable offence was not to be

interfered with by the judiciary - Section 159 was intended to give a limited
power to the Magistrate to ensure that the police investigate all cognizable
offences and do not refuse to do so by abusing the right granted for certain
limited cases of not proceeding with the investigation of the offence - Held,
Code of Criminal Procedure gives to the police unfettered power to
investigate all cases where they suspect that a cognizable offence has been
committed - If the High Court could be convinced that the power of
investigation has been exercised by a police officer mala fide, the High Court
can always issue a writ of mandamus restraining the police officer from
misusing his legal powers - Decision of High court upheld - Appeal dismissed.
JUDGMENT
Vashishtha Bhargava, J.
1. A first information report was lodged by one Vijay Shanker Nigam in Police Station
Cantonment, Gorakhpur, in respect of an incident alleged to have taken place at about
7 p.m. on 10th April, 1968 in front of his house. The report stated that one Bipen
Kumar Tiwari had been attacked by certain goondas who also stabbed him with a knife
and further caused injuries of Vijay Shankar Nigam also. One of the principal accused
named in that report was S. N. Sharma, Additional District Magistrate (Judicial),
Gorakhpur, who is the appellant in this appeal. The allegation against him was that it
was at his instigation that the goondas had attacked Bipen Kumar Tiwari and
attempted to murder him. The offences made out by the report lodged by Vijay
Shankar Nigam were cognizable and the Police, after registering the case, started
investigation. On the 13th April, 1968, the appellant moved an application before the
Judicial Magistrate having jurisdiction to take cognizance of the offence, alleging that a
false report had been lodged against him at the connivance and instance of the local
police. It was urged that it would, therefore, be desirable in the interest of justice that
provisions of Section 159 of the Cr. PC be invoiced and the preliminary enquiry may be
conducted by the Court itself and necessary directions may be issued to the Police to
stop the investigation. The Magistrate, after hearing both parties, passed an order
directing the police to stop investigation and decided to hold the enquiry himself.
Thereupon, on 2nd May, 1968, an application was moved in the High Court of
Allahabad under Section 561A, Cr. PC, to quash the order passed by the Magistrate on
13th April, 1968, on the ground that he had no jurisdiction to pass such an order
under Section 159, Cr. P.C. This application was allowed by the High Court by its
judgment dated 15th January, 1969, so that the High Court quashed the order of the
Judicial Magistrate and held that the police of Gorakhpur was at liberty to conclude the
investigation and submit its report to the Magistrate after which the case could
proceed in accordance with law. The appellant has challenged this order of the High
Court in this appeal brought up by special leave.
2. Section 156(1) of the Cr. PC empowers an officer in charge of a police-station to
investigate any cognizable case without the order of a Magistrate. Sub-section (2) of
Section 156 lays down that no proceeding of a police-officer in any such case shall at
any stage be called in question on the ground that the case was one which such officer
was not empowered under this section to investigate, while Sub-section (3) gives
power to any Magistrate empowered under Section 190 of the Code to order such an
investigation in any case as mentioned in Sub-section (1). Section 157 requires that,
whenever such information in received by an officer in charge of a police-station that

he has reason to suspect the commission of an offence which he is empowered to

investigate under Section 156, he must forthwith send a report of it to the Magistrate
empowered to take cognizance of such an offence upon a police report and, at the
same time, he must either proceed in person, or depute one of his subordinate officers
to proceed, to the spot to investigate the facts and circumstances of the case, and, if
necessary, to take measures for discovery and arrest of the offender. This provision is
qualified by a proviso which is in two parts. The first clause of the proviso enables an
officer in charge of a police station not to proceed to make an investigation on the spot
or to depute a subordinate officer for that purpose if the information received is given
against a person by name and the case is not of a serious nature. The second clause of
the proviso permits the officer in charge of a police station not to investigate the case
if it appears to him that there is no sufficient ground for entering on an investigation.
The report to be sent to the Magistrate under Sub-section (1) of Section 157 requires
that in each of the cases where the officer in charge of the police station decides to act
under the two clauses of the proviso, he must state in his report his reasons for not
fully complying with the requirements of Sub-section (1) and, in addition, in cases
where he decided not to investigate on the ground mentioned in the second clause of
the proviso, he is required to notify to the informant the fact that he will not
investigate the case or cause it to be investigated. These provisions are followed by
Section 159 which is as follows:159. Such Magistrate, on receiving such report, may direct an investigation or, if he
thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to
hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided
in this Code.
3. The High Court has held that, under Section 159, the only power, which the
Magistrate can exercise on receiving a report from the officer in charge of a police
station, is to make an order in those cases which are covered by the proviso to Subsection (1) of Section 157, viz., cases in which the officer in charge of the police
station does not proceed to investigate the case. The High Court has further held that
this Section 159 does not empower a Magistrate to stop investigation by the police in
exercise of the power conferred on it by Section 156. It is the correctness of this
decision which has been challenged by the appellant, and the ground taken is that
Section 159 should be interpreted as being wide enough to permit the Magistrate to
proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary
enquiry into, or otherwise to dispose of, the-case in the manner provided in this Code,
even if the report from the police, submitted under Section 157, states that the police
is proceeding with the investigation of the offence. It was urged by counsel for the
appellant that the narrower interpretation of Section 159 accepted by the High Court
will leave persons at the mercy of the police who can harass any one by having a false
report lodged and starting investigation on the basis of such a report without any
control by the judiciary. He has particularly emphasised the case of the appellant who
was himself a Judicial Officer working as Additional District - Magistrate and who
moved the Magistrate on the ground that the police had engineered the case against
him.
4. We, however, feel constrained to hold that the language used in Section 159 does
not permit the wider interpretation put forward by counsel for the appellant. This
section first mentions the power of the Magistrate to direct an investigation on
receiving the report under Section 157, and then states the alternative that, if he
thinks fit, he may at once proceed, or depute any Magistrate subordinate to him to

proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case. On
the face of it, the first alternative of directing an investigation cannot arise in a case
where the report itself shows that investigation by the police is going on in accordance
with Section 156. It is to be noticed that the second alternative does not give the
Magistrate an unqualified power to proceed himself or depute any Magistrate to hold
the preliminary enquiry. That power is preceded by the condition that he may do so, "if
he thinks fit". The use of this expression makes it clear that Section 159 is primarily
meant to give to the Magistrate the power of directing an investigation in cases where
the police decide not to investigate the case under the proviso to Section 157(1), and
it is in those cases that, if he thinks fit, he can choose the second alternative. If the
expression "if he thinks fit" had not been used, it might have been argued that this
section was intended to give in wide terms the power to the Magistrate to adopt any of
the two courses of either directing an investigation, or of proceeding himself or
deputing any Magistrate subordinate to him to proceed to hold a preliminary enquiry
as the circumstances of the case may require. Without the use of the expression "if he
thinks fit", the second alternative could have been held to be independent of the first;
but the use of this expression, in our opinion, makes it plain that the power conferred
by the second clause of this section is only an alternative to the power given by the
first clause and can, therefore, be exercised only in those cases in which the first
clause is applicable.
5. It may also be further noticed that, even in Sub-section (3) of Section 156, the only
power given to the Magistrate, who can take cognizance of an offence under
Section 190, is to order an investigation; there is no mention of any power to stop an
investigation by the police. The scheme of these sections, thus, clearly is that the
power of the police to investigate any cognizable offence is uncontrolled by the
Magistrate, and it is only in cases where the police decide not to investigate the case
that the Magistrate can intervene and either direct an investigation, or, in the
alternative, himself proceed or depute a Magistrate subordinate to him to proceed to
enquire into the case. The power of the police to investigate has been made
independent of any control by the Magistrate.
6. The High Court of Lahore in The Crown v. Mohammad Sadiq Niaz A.I.R. 1949 Lah.
204, and the High Court of Patina in Pancham Singh v. The State A.I.R. 1967 Pat
418 interpreted Section 159 to the same effect as held by us above. The reasons given
were different. Both the Courts based their decisions primarily on the view expressed
by the Privy Council in King-Emperor v. Khwaja Nazir Ahmad 71 I.A. 203. That case,
however, was not quite to the point that has come up for decision before us. The Privy
Council was concerned with the question whether the High Court had power under
Section 561A of the Cr. PC to quash proceedings being taken by the police in
pursuance of first information reports made to the police. However, the Privy Council
made some remarks which have been relied upon by the High Courts and are to the
following effect:In India, as has been shown, 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, as their Lordships think, 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. The functions of the judiciary and
the police are complementary, not overlapping, and the combination of individual liberty
with a due observance of law and order is only to be obtained by leaving each to
exercise its own function, always, of course, subject to the right of the court to intervene

in an appropriate case when moved under Section 491 of the Criminal Procedure Code to
give directions in the nature of habeas corpus.
7. This interpretation, to some extent, supports the view that the scheme of the
Criminal Procedure Code is that the power of the police to investigate a cognizable
offence is not to be interfered with by the judiciary. Their Lordships of the Privy Council
were, of course, concerned only with the powers of the High Court under
Section 561A, Cr. P.C., while we have to interpret Section 159 of the Code which
defines the powers of a Magistrate which he can exercise on receiving a report from
the police of the cognizable offence under Section 157 of the Code. In our opinion,
Section 159 was really intended to give, a limited power to the Magistrate to ensure
that the police investigate all cognizable offences and do not refuse to do so by
abusing the right granted for certain limited cases of not proceeding with the
investigation of the offence.
8. Counsel appearing on behalf of the appellant urged that such an interpretation is
likely to be very prejudicial particularly to Officers of the judiciary who have to deal
with cases brought up by the police and frequently give decisions which the police
dislike. In such cases, the police may engineer a false report of a cognizable offence
against the Judicial Officer and may then harass him by carrying on a prolonged
investigation of the offence made out by the report. It appears to us that, though the
Cr. PC gives to the police unfettered power to investigate all cases where they suspect
that a cognizable offence has been committed, in appropriate cases an aggrieved
person can always seek a remedy by invoking the power of the High Court under
Article 226 of the Constitution under which, if the High Court could be convinced that
the power of investigation has been exercised by a police officer mala fide, the High
Court can always issue a writ of mandamus restraining the police officer from misusing
his legal powers. The fact that the Code does not contain any other provision giving
power to a Magistrate to stop investigation by the police cannot be a ground for
holding that such a power must be read in Section 159 of the Code.
9. In the result, the decision of the High Court in this case must be upheld, so that the
appeal fails and is dismissed.

Equivalent Citation: AIR2003SC2612, 2003(2)ALD(Cri)199, 2003(2)ALT(Cri)222,

2003CriLJ3117, 105(2003)DLT510(SC), JT2003(5)SC300, 2003(3)RCR(Criminal)556,
2003(5)SCALE103,
(2003)6SCC2612,
(2003)6SCC195,
[2003]Supp1SCR307,
2003(2)UJ1246
IN THE SUPREME COURT OF INDIA
Decided On: 07.07.2003
Appellants: Union of India (UOI)
Vs.
Respondent: Prakash P. Hinduja and Anr.
Bofors Case
Hon'ble
S. Rajendra Babu and G.P. Mathur, JJ.

Judges/Coram:

Counsels:
For
Appellant/Petitioner/Plaintiff: K.N.
Raval,
Solicitor
General, Meenakshi
Sakhardande, ADN
Rao, A.
Mariarputham, P.
Parmeswaran, D.N.
Ray, Prerna
Kumari,Vinita Sinha and B.V. Balramdas, Advs
For Respondents/Defendant: Ram Jethamalani, Sr. Adv., Amit Desai, UA Rana, Arvind
Kumar Nigam, Alok Kumar Sen Gupta, Sajan Narain, Rajeev Jha, Amit Bhagat, Mrinal
Mandal, Ashim Aggarwal, Rajan Narain and Prashant Bhushan, Advs.
Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Criminal Procedure, 1973 (CrPC) - Section 2, Code of Criminal Procedure,
1973 (CrPC) - Section 36, Code of Criminal Procedure, 1973 (CrPC) - Section
154, Code of Criminal Procedure, 1973 (CrPC) - Section 156, Code of Criminal
Procedure, 1973 (CrPC) - Section 157, Code of Criminal Procedure, 1973 (CrPC) Section 160, Code of Criminal Procedure, 1973 (CrPC) - Section 165, Code of Criminal
Procedure, 1973 (CrPC) - Section 166, Code of Criminal Procedure, 1973 (CrPC) Section 169, Code of Criminal Procedure, 1973 (CrPC) - Section 170, Code of Criminal
Procedure, 1973 (CrPC) - Section 173, Code of Criminal Procedure, 1973 (CrPC) Section 190, Code of Criminal Procedure, 1973 (CrPC) - Section 193, Code of Criminal
Procedure, 1973 (CrPC) - Section 195, Code of Criminal Procedure, 1973 (CrPC) Section 196, Code of Criminal Procedure, 1973 (CrPC) - Section 197, Code of Criminal
Procedure, 1973 (CrPC) - Section 198, Code of Criminal Procedure, 1973 (CrPC) Section 199, Code of Criminal Procedure, 1973 (CrPC) - Section 439, Code of Criminal
Procedure, 1973 (CrPC) - Section 482;CONSTITUTION OF INDIA - Article
21, CONSTITUTION OF INDIA - Article 32; CONTEMPT OF COURTS ACT, 1971 - Section

19; DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946 - Section 3, DELHI SPECIAL
POLICE ESTABLISHMENT ACT, 1946 - Section 4; Indian Penal Code (45 Of 1860) (IPC)
- Section 120B,Indian Penal Code (45 Of 1860) (IPC) - Section 161, Indian Penal Code
(45 Of 1860) (IPC) - Section 165, Indian Penal Code (45 Of 1860) (IPC) - Section
165A,Indian Penal Code (45 Of 1860) (IPC) - Section 420; PREVENTION OF
CORRUPTION ACT, 1988 - Section 7, PREVENTION OF CORRUPTION ACT, 1988 Section 19,PREVENTION OF CORRUPTION ACT, 1988 - Section 22
Cases
Referred:
Vineet Narain and Ors. vs. Union of India (UOI) and Anr. MANU/SC/0827/1998 ; R.P.
Kapur vs. The State of Punjab MANU/SC/0086/1960 ; Madhu Limaye vs. The State of
Maharashtra MANU/SC/0103/1977 ; Municipal Corporation of Delhi vs. Ram Kishan
Rohtagi and Ors. MANU/SC/0094/1982 ; Raj Kapoor and Ors. vs. State and
Ors. MANU/SC/0210/1979 ; State of Haryana and others vs. Ch. Bhajan Lal and
others MANU/SC/0115/1992 ; The State of Uttar Pradesh vs. Bhagwant Kishore
Joshi MANU/SC/0066/1963 ; H.N.
Rishbud
and
vs.
The
State
of
Delhi MANU/SC/0049/1954 ; State
of
West
Bengal
vs.
S.N.
BasakMANU/SC/0114/1962 ; Abhinandan
Jha
and
Ors.
vs.
Dinesh
Mishra MANU/SC/0054/1967 ; State of Bihar and Anr. vs. J.A.C. Saldanha and
Ors.MANU/SC/0253/1979 ; Emperor vs. Khwaja Nazir Ahmad MANU/PR/0007/1944
; State of Jammu & Kashmir vs. A.R. Zakki and others MANU/SC/0293/1992 ;A.K.
Roy and Ors. vs. Union of India (UOI) and Ors. MANU/SC/0051/1981 ; Prabhu Dayal
Deorah vs. The District Magistrate, Kamrup and Ors.MANU/SC/0056/1973
Cases
Overruled
/
Reversed:
Sh. Prakash P. Hinduja vs. Union of India (UOI) through CBI, MANU/DE/0779/2002
Disposition:
Appeal Allowed
Citing

Reference:

Discussed
15
Dissented
1
Mentioned
1

Case
Note:
Criminal - Indian Penal Code - Sections 120B, 165, 165A, 420 - Prevention of
Corruption Act - Sections 3, 4(1), 5, 5A, 6 - Central Vigilance Commission

(Amendment) Ordinance, 1999 - Contract entered between Government of

India and M/s AB Bofors for supply of gun systems alongwith vehicles,
ammunition, other accessories - Allegation that contract obtained after
payment of bribe - CBI after registering the case started to investigate the
matter - CBI submitted supplementary charge sheet against the respondent Statutory provisions clear that the Court cannot interfere with investigation
or during the course of investigation- Duty cast on Central Vigilance
Commission to review the progress of all cases moved by CBI for sanction of
prosecution - No right of any kind conferred upon the alleged offender or
accused to approach CVC in case CBI fails to make report to CVC regarding
progress of investigation - Investigations of cases, filing of charge sheets and
prosecutions of cases are within the domain of CBI - Role of CVC only
supervisory - Duty of CVC to ensure that the CBI discharges its duties without
any interference and without any undue favour to any person - Investigation
report sent to CVC and CVC apprised of the developments in the case - Appeal
allowed and order and judgment of High court set aside
JUDGMENT
G.P. Mathur, J.
1. Union of India through Central Bureau of Investigation (for short "CBI") and Central
Vigilance Commission (for short "CVC") have preferred these appeals by special leave
against the judgment and order dated 10.6.2002 of a learned Single Judge of Delhi
High Court by which the petition preferred by Prakash Hinduja respondent No. 1 has
been allowed and the cognizance taken by the learned Special Judge and all
consequential proceedings have been quashed. It has, however, been left open to the
prosecution to file a fresh charge-sheet after following the procedure laid down by this
Court in Vineet Narain and Ors. v. Union of India MANU/SC/0827/1998 :
1998CriLJ1208 .
2. In order to appreciate the controversy raised it is necessary to briefly notice the
relevant facts. A contract was entered between Government of India and M/s. AB
Bofors on 24.3.1986 for supply of 400 FH 77-B gun systems along with vehicles,
ammunition and other accessories at a total cost of SEK 8,410,660,984 (equivalent to
about Rs. 1437.72 crores as per exchange rate on 21.3.1986) and on 2.5.1986
advance payment equivalent to 20 per cent of the contract value was paid to M/s. AB
Bofors. On 16.4.1987 Swedish Radio came out with a story that Bofors had managed
to obtain the contract from Government of India after payment of large amounts as
bribe. On 21.4.1987 the Government of India made a formal request to Government of
Sweden for an investigation into the allegations. The CBI registered a case being RC
1A/90-ACU.IV on 22.1.1990 and proceeded to investigate the matter. Thereafter on
22.10.1999 the CBI submitted charge sheet No. 01 under Section 120-B IPC read
with 420 IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of
Corruption Act, 1947 in the Court of Special Judge, Delhi wherein (1) S.K. Bhatnagar
(2) W.N. Chaddha (3) Ottavio Quattrocchi (4) Martin Ardbo, former President of M/s AB
Bofors, and (5) M/s. AB Bofors, Sweden (private company) were arrayed as accused.
The charge-sheet is a long document and in para 62 thereof it was stated that the
investigation relating to the further transfer of funds (details of which were given in
paragraphs 55 to 57) routed through various countries is still continuing in order to
find out the details of other beneficiaries and the Letters Rogatory issued by the Court
of learned Special Judge, Delhi to Switzerland, Sweden, Panama, Luxembourg ,

Bahamas, Jordan, Liechtenstein and Austria with a view to find out other beneficiaries
of the commission amounts are still pending execution. It was also mentioned that
investigations concerning the role of GP Hinduja, Prakash Hinduja, Srichand Hinduja,
Harsh Chaddha and Maria Quattrocchi and some others are also continuing. The
learned Special Judge took cognizance of the offence on 4.11.1999 and Crl. Case No.
39/1999 was registered in his Court. In pursuance of Letters Rogatory issued by the
Special Judge, the Swiss Government handed over a set of documents comprising 71
pages to CBI on 18.12.1999. Thereafter on 9.10.2000 the CBI submitted a
supplementary charge sheet bearing No. 03 against GP Hinduja, Prakash Hinduja and
Srichand Hinduja. The charge sheet gives the details as to how M/s. AB Bofors
transferred funds to the accounts opened by these accused and how they took up
British nationality and obtained British passports and how they had opposed the
handing over of documents by Swiss Government to the agencies of Government of
India. The learned Special Judge thereafter summoned the three Hinduja brothers by
the order dated 12.12.2000.
3. On 15.4.2002 accused Prakash Hinduja moved an application before the Special
Judge praying that "the charge sheets submitted by the CBI be dismissed and the
cognizance taken and the process issued against the accused be revoked." The
application was moved on the ground that the cases were never reported to CVC and
the CVC has neither reviewed the cases nor had considered them fit for continuance of
the prosecution and as such there was a non-compliance of the directions issued by
this Court in the case of Vineet Narain. The application was opposed by the CBI by
filing a written reply wherein it was stated, inter alia, that the allegations made by the
accused to the affect that the case was never reported to the CVC was not correct;
that a copy of the investigation report was sent to CVC on 14.7.1997 and further
developments were also brought to the notice of CVC from time to time; that a special
counsel for prosecuting the case had been appointed on the recommendation of
Attorney General for India and that in para 62 of the first charge-sheet it was
mentioned that investigation regarding the role played by Hinduja brothers was in
progress; and that the supplementary charge sheet had been filed under
Section 173(8) Cr.P.C. which was co-related with the first charge sheet.
4. The learned Special Judge, after hearing counsel for the parties and noticing their
contentions held that generally it was not in the province of the courts and particularly
the Trial Court to see in what manner and to what extent the CBI is reporting the
progress of investigation and this was within the province of CVC. It was further held
that "the intent of the directions given in Vineet Narain is not to dismiss or throw the
charges sheets when there is incomplete or partial compliance. The primary function of
the Trial Court however is to proceed with expedition strictly on the merits of the
accusations entirely in accordance with law uninfluenced by what happened during
investigation and which counsel represent CBI". Learned Special Judge also observed
that the Court was not powerless and if necessary, appropriate directions can be issued
in terms of Vineet Narain to ensure a fair and efficient trial. The application was
accordingly rejected by the order dated 18.4.2002.
5. Thereafter, Prakash Hinduja filed a petition under Section 482 Cr.P.C. in Delhi High
Court praying for the reliefs asked for in the application moved before the learned
Special Judge i.e. to revoke the cognizance taken, to revoke the process issued and to
dismiss the charge sheets. The other prayer made was that notice be issued to the
Attorney General and his views on the effect of non-compliance of the directions be
ascertained and notice be also issued to the Chief Vigilance Commissioner to report to

the Court as to his role in the filing of the two charge-sheets and the manner in which
the directions of Supreme Court had been complied with in the case in hand. The
petition was opposed and separate counter-affidavits were filed by CBI and CVC. The
High Court has held that in terms of directions issued in Vineet Narain, CVC is
entrusted with the responsibility of superintendence over the CBI's function. The CBI
shall report to CVC about all cases taken up by it for investigation; progress of the
investigation: cases in which charge-sheets are filed and their progress. The CVC
cannot abdicate its functions nor CBI can violate the mandate and it was bound to
place the final results of its investigation along with all material collected before the
CVC for the purposes of review. It has been further held that in the present case CBI
had not placed before the CVC the results of its investigations and had by-passed it by
filing a charge-sheet before the Special Judge, while the CVC had abdicated its function
which it was obliged to perform under the directives of the Supreme Court even if the
Government Resolution restricted its powers. Finally, the High Court has held that in
view of the mandate of the Supreme Court the Special Judge ought not to have
entertained the charge-sheet filed in violation of the directives. On these findings the
petition was allowed and the cognizance taken by the learned Special Judge and all
consequential proceedings were quashed.
6. Feeling aggrieved by the judgment of the High Court, Union of India through CBI
and CVC through its Director have preferred separate appeals by special leave.
7. Shri Kirit N. Rawal, learned Solicitor General appearing for the appellants has
submitted that in Vineet Narain this Court was dealing with the allegations of failure
of the CBI to investigate freely and fairly commission of offences by persons holding
high offices. In order to impart a degree of independence to the CBI and yet to
maintain the power of superintendence (which is inevitably necessary in relation to any
police force), the Court issued a mandamus based upon the suggestion which had also
been made by the Independent Review Committee. It was with this object in view and
having regard to the statutory provisions that the directions were issued to the effect
that the Government shall remain answerable for the CBI's functioning which flowed
from the power of the Government under Section 4 of Delhi Special Police
Establishment Act (for short "DSPE Act") and in order to introduce visible objectivity in
the mechanism to be established for over-viewing the CBI's working, the CVC was
entrusted with the responsibility of superintendence. Learned counsel has also
submitted that the duty to report the steps taken in the course of investigation cannot
be equated with the duty to obtain prior approval or consent of any other authority. It
has been urged that the contention of the accused in fact amounts to equating the role
case upon the CVC with the role of an authority empowered to sanction the institution
of a criminal case in absence whereof the court lacks the jurisdiction to take
cognizance on the report filed under Section 173 Cr.P.C. The acceptance of such a
contention would result into introduction of a new provision of law which was never
intended by this Court in Vineet Narain. The directions issued were never intended to
provide additional safeguards in favour of an accused. It has thus been urged that the
whole premise of the judgment of the High Court is fundamentally wrong and the
same is liable to be set aside.
8. Shri Ram Jethmalani, learned senior counsel for the respondent has submitted that
in Vineet Narain this Court cut down the power of the Government under Section 4 of
the DSPE Act and within the hierarchy of CBI there is a power of superintendence as
provided in Section 36 Cr.P.C. According to learned counsel, the judgment of this Court
in Vineet Narain mandates the creation of a CVC with statutory powers and such

CVC, while over-viewing the functioning of the CBI, will also have power to prevent or
stop investigation or arrest or launching of frivolous prosecution wherever it considers
it appropriate to do so. Learned counsel has further submitted that Vineet Narain did
not change substantive law but ordains new safeguards which were not there earlier
and they are in addition to and not in derogation of already existing safeguards.
Learned counsel has also submitted that what Vineet Narain ordained was part of fair
procedure as contemplated by Article 21 of the Constitution and the action of the CBI
in submitting charge sheet against the respondent without reporting the matter to CVC
has resulted in denial of his right of fair procedure leading to violation of Article 21.
9. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can
be exercised to prevent abuse of the process of any Court or otherwise to secure the
ends of justice. The power can therefore be exercised to quash the criminal
proceedings. The grounds on which the prosecution initiated against an accused can be
quashed by the High Court in exercise of power conferred by Section 482 Cr.P.C. has
been settled by a catena of decisions of this Court rendered in R.P. Kapoor v. State of
Punjab
MANU/SC/0086/1960 :
1960CriLJ1239
;
Madhu
Limaye
v. State
MANU/SC/0103/1977 :
1978CriLJ165
;
Delhi
Municipality
v.Ram
Kishan
MANU/SC/0094/1982 : 1983CriLJ159 ; Raj Kapoor v. State MANU/SC/0210/1979 :
1980CriLJ202 . The matter was examined in considerable detail in Sate of Haryana
v. Bhajan Lal MANU/SC/0115/1992 : 1992CriLJ527 and after review of practically all
the earlier decisions, the Court in para 108 of the Reports laid down the grounds on
which power under Section 482 Cr.P.C. can be exercised to quash the criminal
proceedings and basically they are (1) where the allegations made in the FIR or
complaint, even if they are taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case against the accused, (2)
where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and
make out a case against the accused, (3) where there is an express legal bar
engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act
to the institution and continuance of the proceedings. But this power has to be
exercised in a rare case and with great circumspection. There are some statutes which
create a bar on the power of the Court in taking cognizance of an offence in absence of
a sanction by the competent authority like Section 6 of Prevention of Corruption Act,
1947 or Section 19 of Prevention of Corruption Act, 1988. Similar provision is
contained in Section 196 Cr.P.C. which mandates that no Court shall take cognizance of
the offences enumerated in the Section except with the previous sanction of the
Central Government or of the State Government. Section 197 Cr.P.C. also creates an
embargo on the power of the Court to take cognizance of an offence alleged to have
been committed by any person who is or was a Judge or a Magistrate or a public
servant not removable from his office save by or with the sanction of the government.
But the proceedings in the present case have not been quashed on any one of the
above mentioned grounds. The High Court has not examined the nature of the
allegations made in the FIR or the evidence by which the prosecution seeks to
establish the charge against the accused during the trial. There is not even a whisper
in the impugned order of the High Court that the FIR does not disclose a cognizable
offence. Similarly, there is no reference to any statutory bar like want of valid sanction
etc. to the taking of the cognizance of the offence. In fact the respondent Prakash
Hinduja is not a public servant and consequently no sanction is required from any
authority for his prosecution. The only ground on which the High Court has proceeded
and has quashed the cognizance taken by the learned Special judge and all
consequential proceedings is that the CBI had filed the charge sheet without placing

the same before the CVC and therefore an illegality had been committed in the course
of investigation which entitled the High Court to quash the cognizance taken by the
Special Judge and all proceedings of the case.
10. The principal question which, therefore, requires consideration is whether the
Court can go into the validity or otherwise of the investigation done by the authorities
charged with the duty of investigation under the relevant statutes and whether any
error or illegality committed during the course of investigation would so vitiate the
charge-sheet so as to render the cognizance taken thereon bad and invalid.
11. We will first examine the statutory provisions made in that regard.
Section 2(h) Cr.P.C. defines "investigation" and it includes all the proceedings under
the Code for the collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorised by a Magistrate in this behalf. It ends with
the formation of the opinion as to whether on the material collected, there is a case to
place the accused before a Magistrate for trial and if so, taking the necessary steps for
the same by filing of a charge-sheet under Section 173 (See State of U.P. v. Bhagwant
Kishore Joshi MANU/SC/0066/1963 : 1964CriLJ140 and H.N. Rishbud & Inder Singh
v. The State of Delhi MANU/SC/0049/1954 : 1955CriLJ526 ). Chapter XII of the
Code of Criminal Procedure deals with "Information To The Police And Their Powers To
Investigate". Section 154 provides that every information relating to the commission of
a cognizable offence, if given orally to an officer in charge of a police station, shall be
reduced to writing by him or under his direction, and the substance thereof shall be
entered in a book to be kept by such officer in such form as the State Government
may prescribe in this behalf. Sub-section (1) of Section 156 lays down that any officer
in charge of a police station may, without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within the limits
of such station would have power to inquire into or try under the provisions of Chapter
XIII. Sub-section (2) of this Section provides that no proceeding of a police officer in
any such case shall at any stage be called in question on the ground that the case was
one which such officer was not empowered under this section to investigate.
Section 157 lays down that if from information received or otherwise, an officer in
charge of a police station has reason to suspect the commission of an offence which he
is empowered under Section 156 to investigate, he shall proceed in person or shall
depute one of his subordinate officers to proceed to the spot to investigate the facts
and circumstances of the case and, if necessary, to take measures for the discovery
and arrest of the offender. Sections 160 to 160 deal with the power of the police officer
making an investigation under Chapter XII to require the attendance of all witnesses,
and their examination. Sections 165 and 166 confer power upon a police officer
making investigation to search or cause search to be made. Section 169 authorises a
police officer to release a person from custody on his executing a bond, to appear, if
and when so required, before a Magistrate in case upon an investigation under Chapter
XII it appears to the officer in charge of the police station that there is not sufficient
evidence or reasonable ground of suspicion to justify the forwarding of the accused to
a Magistrate. Section 170 empowers the officer in charge of a police station to forward
the accused under custody to a competent Magistrate or to take security from the
accused for his appearance before the Magistrate in case where the offence is bailable,
if after investigation it appears that there is sufficient evidence or reasonable ground
for doing so. Section 173 and Sub-section (2) thereof is important and it lays down
that after the investigation is completed, the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the offence on a police

report, a report in the form prescribed by the State Government giving details of the
matters enumerated in Clauses (a) to (g) of this sub-section.
12. Chapter XIV of the Code of Criminal Procedure deals with "Conditions Requisite For
Initiation Of Proceedings". Section 190 deals with cognizance of offences by Magistrate
and it provides that a Magistrate may take cognizance of any offence (a) upon
receiving a complaint of facts which constitute such offence, (b) upon a police report of
such facts, or (c) upon information received from any person other than a police officer
or upon his own knowledge, that such offence has been committed.
13. The provisions referred to above occurring in Chapter XII of the Code show that
detail and elaborate provisions have been made for securing that an investigation
takes place regarding an offence of which information has been given and the same is
done in accordance with the provisions of the Code. The manner and the method of
conducting the investigation are left entirely to the officer in charge of the police
station or a subordinate officer deputed by him. A Magistrate has no power to interfere
with the same. The formation of the opinion whether there is sufficient evidence or
reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or
not as contemplated by Sections 169 and 170 is to be that of the officer in charge of
the police station and a Magistrate has absolutely no role to play at this stage.
Similarly, after completion of the investigation while making a report to the Magistrate
under Section 173, the requisite details have to be submitted by the officer in charge
of the police station without any kind of interference or direction of a Magistrate and
this will include a report regarding the fact whether any offence appears to have been
committed and if so, by whom, as provided by Clause (d) of Sub-section (2)(i) of this
Section. These provisions will also be applicable in cases under Prevention of
Corruption Act, 1947 by virtue of Section 7 thereof and Prevention of Corruption Act,
1988 by virtue of Section 22 thereof.
14. The Magistrate is no doubt not bound to accept a final report (sometimes called as
closer report) submitted by the police and if he feels that the evidence and material
collected during investigation justifies prosecution of the accused, he may not accept
the final report and take cognizance of the offence and summon the accused but this
does not mean that he would be interfering with the investigation as such. He would
be doing so in exercise of powers conferred by Section 190Cr. P.C. The statutory
provisions are, therefore, absolutely clear that the Court cannot interfere with the
investigation.
15. The question whether the High Court can exercise its inherent powers under
Section 561A of Code of Criminal Procedure, 1908, which was similar to Section482 of
1973 Code, was considered by the Privy Council in Emperor v. Nazir Ahmad AIR 1945
PC 18. It will be useful to reproduce the relevant part of the observations made by
Their Lordships as this decision has been approved and has been referred to in several
decisions of this Court:
"In India as has been shown 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, as their Lordships think, 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. The functions of the judiciary and
the police are complementary not overlapping and the combination of individual liberty
with a due observance of law and order is only to be obtained by leaving each to

exercise its own function, always, of course, subject to the right of the Court to intervene
in an appropriate case when moved under Section 491, Criminal P.C., to give directions
in the nature of habeas corpus. In such a case as the present, however, the Court's
functions being when a charge is preferred before it and not until then."
16. In H.N. Rishbud v. The State of Delhi MANU/SC/0049/1954 the Court was called
upon to consider the effect of investigation having been done by a police officer below
the rank of a Deputy Superintendent of Police contrary to the mandate of
Section 5(4) of Prevention of Corruption Act, 1947. While examining the scheme of
Chapter XIV of the Code of Criminal Procedure, 1908 (same as Chapter XII of 1973
Code) it was held that the investigation primarily consists in the ascertainment of the
facts and circumstances of the case and by definition it includes "all the proceedings
under the Code for the collection of evidence conducted by a police officer." It was
further observed that the final step in the investigation viz., the formation of the
opinion as to whether or not there is a case to place the accused on trial is to be that
of the officer in charge of the police station. In State of West Bengal v. SN Basak
MANU/SC/0114/1962 : [1963]2SCR52 this Court approved the view taken by the
Privy Council in Nazir Ahmad (supra) and held as under in para 3 of the reports:
".....The powers of investigation into cognizable offences are contained in Chapter XIV of
the Code of Criminal Procedure. Section 154which is in that Chapter deals with
information it cognizable offences and Section 156 with investigation into such offences
and under these sections 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 Criminal Procedure Code."
17. This question was again considered in Abhinandan Jha and Ors. v. Dinesh Mishra
MANU/SC/0054/1967 : 1968CriLJ97 and after examining the scheme of the Act and
the decision of the Privy Council in Nazir Ahmad (supra) and the earlier decision of this
Court in H.N. Rishbud and S.N. Basak (supra) it was held as under:
"The investigation under the Code, takes in several aspects, and stages, ending
ultimately with the formation of an opinion by the police as to whether, on the material
covered and collected, a case is made out to place the accused before the Magistrate for
trial, and the submission of either a charge sheet or a final report is dependent on the
nature of the opinion, so formed. The formation of the said opinion, by the police, is the
final step in the investigation, and that final step is to be taken only by the police and by
no other authority."
Vineet Narain has also relied upon this decision.
18. In State of Bihar and Anr. v. JAC Saldanha and Ors. MANU/SC/0253/1979 :
1980CriLJ98 the same principle was reiterated and was succinctly stated in the
following words in para 25 of the report:
"There is a clear-out and well demarcated sphere of activity in the field of crime
detection and crime punishment. Investigation of an offence is the field
exclusively reserved for the executive through the police department the
superintendence over which vests in the State Government. The executive
which is charged with a duty to keep vigilance over law and order situation is

obliged to prevent crime and if an offence is alleged to have been committed it

is its bounden duty to investigate into the offence and bring the offender to
book. Once it investigates an finds an offence having been committed it is its
duty to collect evidence for the purpose of proving the offence. Once that is
completed and the investigating officer submits report to the Court requesting
the Court to take cognizance of the offence under Section 190 of the Code its
duty comes to an end. On a cognizance of the offence being taken by the Court
the police function of investigation comes to an end subject to the provision
contained in Section 173(8), there commences the adjudicatory function of the
judiciary to determine whether an offence has been committed and if so,
whether by the person or persons charged with the crime by the police in its
report to the Court, and to award adequate punishment according to law for the
offence proved to the satisfaction of the Court. There is thus a well defined and
well demarcated function in the field of crime detection and its subsequent
adjudication between the police and the Magistrate. This had been recognised
way back in King Emperor v. Khwaja Nazir Ahmad MANU/PR/0007/1944
where the Privy Council observed as under:
"..... ....."
(Omitted as already quoted in para 15)
In para 26 it was observed that the power of the police to investigate into a cognizable
offence is ordinarily not to be interfered with by the judiciary.
19. Thus the legal position is absolutely clear and also settled by judicial authorities
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 police station in court
under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating
agency.
20. An incidental question as to what will be the result of any error or illegality in
investigation on the trial of the accused before the Court may also be examined.
Section 5-A of the Prevention of Corruption Act, 1947 provided that no police officer
below rank of a Deputy Superintendent of Police shall investigate any offence
punishable under Section 161, Section 165 and Section 165-A IPC or under
Section 5 of the said Act without the order of a Magistrate of the First Class. In H.N.
Rishbud (supra) the investigation was entirely completed by an officer of the rank
lower than the Deputy Superintendent of Police and after permission was accorded a
little or no further investigation was made. The Special Judge quashed the proceedings
on the ground that the investigation on the basis of which the accused were being
prosecuted was in contravention of the provisions of the Act, but the said order was
set aside by the High Court. The appeal preferred by the accused to this Court
assailing the judgment of the High Court was dismissed and the following principle was
laid down:"The question then requires to be considered whether and to what extent the trial which
follows such investigation is vitiated. Now, trial follows cognizance and cognizance is
preceded by investigation. This is undoubtedly the basic scheme of the Code in respect
of cognizable cases. But it does not necessarily follow that an invalid investigation
nullifies the cognizance or trial based thereon. Here we are not concerned with the effect

of the breach of a mandatory provision regulating the competence or procedure of the

Court as regards cognizance or trial. It is only with reference to such a breach that the
question as to whether it constitutes an illegality vitiating the proceedings or a mere
irregularity arises. A defect or illegality in investigation, however serious, has no direct
bearing on the competence or the procedure relating to cognizance or trial. No doubt a
police report which results from an investigation is provided in Section 190 of the Code
of Criminal Procedure as the material on which cognizance is taken. But it cannot be
maintained that a valid and legal police report is the foundation of the jurisdiction of the
Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a
group of sections under the heading "Conditions requisite for initiation of proceedings."
The language of this section is in marked contrast with that of the other sections of the
group under the same heading, i.e. Sections 193 and 195 to 199. These latter sections
regulate the competence of the Court and bar its jurisdiction in certain cases excepting
in compliance therewith. But Section 190 does not. While no doubt, in one sense,
Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of
cognizance, it is not possible to say that cognizance on an invalid police report is
prohibited and is therefore a nullity. Such an invalid report may still fall either under
Clause (a) or (b) of Section 190(1) (whether it is one or the other we need not pause to
consider) and in any case cognizance so taken is only in the nature of error in a
proceeding antecedent to the trial."
The Court after referring to Prabhu v. Emperor AIR 1944 SC 73 and Lumbhardar Zutshi
v. The King AIR 1950 PC 26 held that if cognizance is in fact taken on a police report
initiated by the breach of a mandatory provision relating to investigation, there can be
no doubt that the result of the trial, which follows it cannot be set aside unless the
illegality in the investigation can be shown to have brought about a miscarriage of
justice and that an illegality committed in the course of investigation does not affect
the competence and the jurisdiction of the Court for trial. This being the legal position,
even assuming for the sake of argument that the CBI committed an error or
irregularity in submitting the charge sheet without the approval of CVC, the cognizance
taken by the learned Special Judge on the basis of such a charge sheet could not be
set aside nor further proceedings in pursuance thereof could be quashed. The High
Court has clearly erred in setting aside the order of the learned Special Judge taking
cognizance of the offence and in quashing further proceedings of the case.
21. The sheet anchor of the plea raised by the accused-respondent for dismissing the
charge sheets and revoking the cognizance and the process issues against him is
based upon certain directions issued by this Court in Vineet Narain. The High Court
has accepted this plea and has quashed the cognizance taken by the learned Special
Judge and all consequential proceedings in the case on the ground that the CBI has
not placed before the CVC the result of the investigation and had by passed it by filing
a charge sheet before the court which in its opinion was a violation o the directions
issued by this Court in Vineet Narain. In fact Shri Jethmalani also tried to support the
judgment of the High Court by placing extensive reliance upon the observations made
in this case. Shri Rawal, learned Solicitor General has, however, submitted that the
High Court has completely misunderstood the judgment and in fact it does not give
any kind of a right to an accused to challenge the charge sheet on account of any
alleged non-observance or violation of the directions issued regarding the functioning
and responsibility of CVC. The contention is that the directions relate to interdepartmental working and the manner in which the power of superintendence has to
be exercised by CVC over the working of CBI, the entire object being to insulate the
CBI from any kind of external influence or pressure so that it may perform it study as

enjoined in Delhi Special Police Establishment Act (DSPE Act). The question is
whether Vineet Narain really meant to lay down as a principle of law that in every
case the result of investigation done by CBI has to be placed before the CVC and
further before submission of the charge sheet in Court the same was also to be
examined by the CVC which was to give some sort of approval or concurrence and if
the same was not done, the charge sheet so submitted would be a nullity in the eyes
of law or would be of such a nature on which cognizance could not be taken or if the
cognizance was taken by the court the same would be illegal and could not from the
basis for trial of the accused.
22. In view of the contentions raised it becomes necessary to examine the judgment
in Vineet Narain in little detail so as to understand its real content and import. A
terrorist belonging to Hizbul Mujahideen organisation was arrested in Delhi on
25.3.1991 and after his interrogation the CBI conducted raids on the premises of SK
Jain, his brothers, relatives and businesses. Besides Indian and foreign currency, two
diaries and notebooks were seized which contained detailed accounts of vast payments
made to certain persons who were identified by initials only which corresponded to
high ranking politicians and bureaucrats. The CBI did not investigate the matter of
Jains or the contents of their diaries for more than two and a half years. It was in
these circumstances that a writ petition was filed under Article 32 of the Constitution
by way of a public interest litigation.
23. It will be convenient and useful to reproduce certain parts of the judgment which
are as under:"5. The gist of the allegations in the writ petitions is that government agencies
like the CBI and the Revenue authorities had failed to perform their duties and
legal obligations inasmuch as they had failed to investigate matters arising out
of the seizure of the "Jain Diaries"; that the apprehension of terrorists had led
to the discovery of financial support to them by clandestine and illegal (SIC)
using tainted funds obtained through "havana" transactions; that this had also
disclosed a nexus between politicians, bureaucrats and criminals, who are
recipients of money form unlawful sources, given for unlawful consideration;
that the CBI and other government agencies had failed to investigate the
matter, take it to its logical conclusion and prosecute all persons who were
found to have committed an offence; that this was done with a view to protect
the person involved, who were very influential and powerful; that the matter
disclosed a nexus between crime and corruption at high places in public life and
it posed a serious threat to the integrity, security and economy of the nation;
that probity in public life, the rule of law and the preservation of democracy
required that the government agencies be compelled to duly perform their legal
obligations and to proceed in accordance with law against every person
involved, irrespective of where he was placed in the poetical hierarchy. The writ
petition petitions prayed, inter alia, for the following reliefs:
"(a) that the abovesaid offences disclosed by the fats mentioned in the
petition be directed to be investigated in accordance with law;
(b) that this Hon'ble Court may be pleased to appoint officers of the
police or others in whose integrity, independence and competence this
Hon'ble Court has confidence for conducting and/or supervising the said
investigation;

(c) that suitable directions be given by this Hon'ble Court and orders
issued to ensure that the culprits are dealt with according to law.
*****
(f) that directions be given so that such evil actions on the part of the
investigating agencies and their political superiors are not repeated in
future."
24. The Court instead of issuing a writ of mandamus considered it proper to keep the
matter pending and the investigation was monitored and in that connection several
orders were passed from time to time reference of which has been made in para 7 of
the judgment. Para 8 of the judgment shows that the Court came to the conclusion
that the CBI and other governmental agencies had not carried out their public duty to
investigate the offences disclosed and the investigation was monitored till the point of
time when charge sheet was filed and thereafter ordinary process of law was to be
followed. In para 9 of the judgment it is mentioned that even after the matter had
been brought to the Court complaining of the inertia of the CBI and the other agencies
to investigate into the offences because of the alleged involvement of several persons
holding high officers in the executive, the disinclination of the agencies to proceed with
the investigation was apparent. It is further mentioned that the accusation, if true,
revealed a nexus between high ranking politicians and bureaucrats who were alleged
to have been funded by a source linked with the source funding the terrorists. Some
other paragraphs which have a bearing on the controversy are being reproduced
below.
15. Inertia was the common rule whenever the alleged offender was a powerful
person. Thus, it became necessary to take measures to ensure permanency in
the remedial effect to prevent reversion to inertia of the agencies in such
matters.
19. Before we refer to the report of the Independent Review Committee (IRC),
it would be appropriate at this stage to refer to the Single Directive issued by
the Government which requires prior sanction of the designated authority to
initiate the investigation against officers of the Government and the Public
Sector Undertakings (PSUs), nationalised banks above a certain level. .....
42. Once the jurisdiction is conferred on the CBI to investigate an offence by
virtue of notification under Section 3 of the Act, the powers of investigation are
governed by the statutory provisions and they cannot be estopped or curtailed
by any executive instruction issued under Section 4(1) thereof. This result
follows from the fact that conferment of jurisdiction is under Section 3 of the Act
and exercise of powers of investigation is by virtue of the statutory provisions
governing investigation of offences. It is settled that statutory jurisdiction
cannot be subject to executive control.
43. There is no similarity between a mere executive order requiring prior
permission or sanction for investigation of the offence and the sanction needed
under the statute for prosecution. The requirement of sanction for prosecution
being provided in the very statute which enacts the offence, the sanction for
prosecution is a prerequisite for the court to take cognizance of the offence. In
the absence of any statutory requirement of prior permission or sanction for

investigation, it cannot be imposed as a condition precedent for initiation of the

investigation once jurisdiction is conferred on the CBI to investigate the offence
by virtue of the notification under Section 3 of the Act. The word
"superintendence" in Section 4(1) of the Act in the context must be construed in
a manner consistent with the other provisions of the Act and the general
statutory powers of investigation which govern investigation even by the
CBI......
48. In view of the common perception shared by everyone including the
Government of India and the Independent Review Committee (IRC) of the need
for insulation of the CBI from extraneous influence of any kind, it is imperative
that some action is urgently taken to prevent the continuance of this situation
with a view to ensure proper implementation of the rule of law. This is the need
of equality guaranteed in the Constitution. The right to equality in a situation
like this is that of the Indian polity and not merely of a few individuals. The
powers conferred on this Court by the Constitution are ample to remedy this
defect and to ensure enforcement of the concept of equality.
50. There is another aspect of rule of law which is of equal significance. Unless a
proper investigation is made and it is followed by an equally proper prosecution,
the effort made would not bear fruition. The recent experience in the field of
prosecution is also discouraging......
58. As a result of the aforesaid discussion, we hereby direct as under:I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE
COMMISSION (CVC)
1. The Central Vigilance Commission (CVC) shall be given statutory
status.
2. .....
3. The CVC shall be responsible for the efficient functioning of the CBI.
While Government shall remain answerable for the CBI's functioning, to
introduce visible objectivity in the mechanism to be established for
reviewing the CBI's working, the CVC shall be entrusted with the
responsibility of superintendence over the CBI's functioning. The CBI
shall report to the CVC about cases taken up by it for investigation;
progress of investigations; cases in which charge-sheets are filed and
their progress. The CVC shall review the progress of all cases moved by
the CBI for sanction of prosecution of public servants which are pending
with the competent authorities, specially those in which sanction has
been delayed or refused.
..... .....
IV. PROSECUTION AGENCY
1. .....

2. Every prosecution which results in the discharge or acquittal of the

accused must be reviewed by a lawyer on the panel and, on the basis of
the opinion given, responsibility should be fixed for dereliction of duty, if
any, of the officer concerned. In such cases, strict action should be taken
against the officer found guilty of dereliction of duty.
25. The facts and circumstances in which the writ petition was filed, the allegations
made and the relief claimed therein would show that the CBI and other Government
Agencies had not performed their statutory duty for a very long time to investigate
commission of offences as the accused involved were holding high offices. The Single
Directive issued by the Government created an embargo on the power of the CBI in
registering or investigating cases against officers of the Government, Public Sector
Undertakings and Nationalised Banks above a certain level without prior sanction of
the designated authority. The proceedings of the case revealed that there was a
complete disinclination on the part of the CBI to proceed with investigation of offences
against persons holding high offices even after the matter had been brought to Court.
The Court came to the conclusion that wherever the alleged offender was a powerful
person, the CBI remained a silent spectator and practically took no steps to investigate
the matter. After examination of the statutory provisions, the Court came to the
conclusion that the Single Directive had the effect of restraining the recording of FIR
and initiation of investigation, which could not be issued in exercise of power under
Section 4(1)of the DSPE Act as the powers of investigation are governed by statutory
provisions. It was therefore considered expedient that the CBI should be insulated
from extraneous influence of any kind. The Court also came to the conclusion that in
order to establish rule of law, it was necessary that proper investigation is made which
is followed by equally proper prosecution. It was in these circumstances that various
directions were issued with regard to the functioning of CBI and CVC, Enforcement
Directorate, Nodal Agencies and Prosecution Agencies. The entire emphasis in the
judgment is that as no one is above the law, the persons holding high offices are not
able to escape either on account of inertia or inaction of the CBI to investigate the
commission of offence or on account of incomplete or improper investigation or faulty
prosecution in Court. A duty has been cast on the CVC to review the progress of all
cases moved by the CBI for sanction of prosecution, specially those in which sanction
has been delayed or refused. The judgment nowhere says that the CBI will have to
take concurrence or sanction from the CVC before filing charge sheet in Court. No right
of any kind has been conferred upon the alleged offender or the accused to approach
the CVC or to challenge the action of CBI in submission of charge-sheet in Court on the
ground of some purported irregularity in making a report to the CVC regarding
progress of investigation.
26. The view taken by the High Court that as the CBI submitted the charge-sheet
without reporting and taking approval or consent from the CVC, the same was illegal
and no cognizance could be taken thereon is, therefore, wholly erroneous and does not
at all follow from the judgment.
27. Shri Jethmalani has strenuously urged that as the CVC has been entrusted with the
responsibility of superintendence over the CBI's functioning, the CVC can as well direct
CBI not to submit a charge sheet in a given case. The accused can bring to the notice
of the CVC that either there was no sufficient material or it was not a fit case where
prosecution should be launched and if the CVC is satisfied with the plea of the accused,
it will have the right to give a direction to the CBI not to submit a charge-sheet against
the accused. According to learned counsel the power with the CVC is akin to

Section 36 Cr.P.C. which lays down that police officers superior in rank to an officer in
charge of a police station may exercise the same powers, throughout the local area to
which they are appointed, as may be exercised by such officer within the limits of his
station and, therefore, the CVC has the authority to direct the CBI not to submit
charge sheet in a given case just as a Superintendent of Police can give this type of
direction to an officer incharge of a police station. We are unable to accept the
contention raised. The directions issued cannot be interpreted in abstract but have to
be read and understood in the context of the facts and circumstances leading to the
filing of the writ petition. The facts which were revealed and were brought to light
during the course of hearing showed that the CBI had failed to perform its statutory
duty and legal obligation of investigating offences and after competing the
investigation taking it to its logical conclusions of launching prosecution against all
those who were found to have committed offences. The direction issued never meant
to create or confer some kind of additional rights in favour of the accused as held by
the High Court. The accused has absolutely no right to approach the CVC for taking
any steps to stop the CBI from either proceeding against him or from launching
prosecution against him by filing a charge sheet. Further, the directions issued do not
confer any kind of a right upon the accused to assail the charge sheet on the ground
that the CBI had not reported the progress of investigation to the CVC or had not
taken kind of approval or concurrence from it before submission of the charge sheet in
Court.
28. Shri Jethmalani has contended that the directions issued in Vineet Narain have
not been complied by the Union of India in as much as the CVC has not been given a
statutory status and strict compliance of other directions has also not been made.
Seeking analogy from Section 19(2)(c) of Contempt of Courts Act, learned counsel has
urged that the appellant Union of India has committed contempt of the order passed
by this Court in the case of Vineet Narain and therefore it should not be heard.
Learned Solicitor General has controverted this argument by submitting that Central
Vigilance Commission Ordinance 15 of 1998 was promulgated on 25.8.1998 and on
27.10.1988 Central Vigilance Commission (Amendment) Ordinance, 1998 was
promulgated. Thereafter, CVC Bill 1998 was introduced in the Lok Sabha on 7.12.1998
but the matter was referred to the Standing Committee. On 8.1.1999 CVC Ordinance 4
of 1999 was promulgated to continue the provisions of earlier Ordinances. The Lok
Sabha passed CVC Bill 1999 on 15.3.1999 and thereafter it was listed in the Rajya
Sabha but could not be taken up. On 4.4.1999 the Government of India Resolution No.
371/20/99 - AVD (II) was published in the Gazette to continue the Central Vigilance
Commission as the Parliament being in session no fresh Ordinance could be issued and
Ordinance No. 4 of 1999 was going to expire on 5.4.1999. The Lok Sabha dissolved on
26.4.1999 and consequently CVC Bill 1999 pending consideration in the Rajya Sabha
also lapsed. On 20.12.1999, CVC Bill 1999 was introduced in Lok Sabha which passed
the same on 26.2.2003 and on 5.3.2003 notice was sent to Secretary General, Rajya
Sabha for consideration of CVC Bill 2003 as passed by the Lok Sabha. These facts
show that the appellant has been taking steps to comply with the directions issued
in Vineet Narain.
29. Under our constitutional scheme the Parliament exercises sovereign power to enact
laws and no outside power or authority can issue a direction to enact a particular piece
of legislation. In Supreme Court Employees' Welfare Association v. Union of India it has
been held that no Court can direct a legislature to enact a particular law. Similarly,
when an executive authority exercises a legislative power by way of subordinate
legislation pursuant to the delegated authority of a legislature, such executive

authority cannot be asked to enact a law which he has been empowered to do under
the delegated legislative authority. This view has been reiterated in State of J & K v. A
R Zakki and Ors., MANU/SC/0293/1992 : AIR1992SC1546 . In AK Roy v. Union of
India MANU/SC/0051/1981 : 1982CriLJ340 it was held that no mandamus can be
issued to enforce an Act which has been passed by the legislature. Therefore, the
direction issued regarding conferment of statutory status on CVC cannot be treated to
be of such a nature, the non-compliance whereof may amount to contempt of the
order passed by this Court.
30. Shri Jethmalani has also referred to some correspondence which ensued between
the Embassy of India and Federal Office for Police Matters of the Federal Department of
Justice and Police, Bern, Switzerland and has laid emphasis on the following sentence
occurring therein - "The requesting authority has examined those documents in detail
and has reached at the conclusion that the documents transmitted are unfortunately
too limited to sustain a charge sheet against Hinduja brothers and do not correspond
to the mission of its request for assistance dated 23.01.1990." Learned counsel has
submitted that as the CBI itself was of the opinion that the documents transmitted
could not sustain a charge against Hinduja brothers, there was no justification for
submitting a charge sheet and the trial would be abuse of the process of the Court. It
has been further urged that the evidence sought to be relied upon by the CBI is wholly
deficient and can under no case establish any charge against accused-respondent No.
1. According to learned counsel the charge sheet has been submitted only on account
of political vendetta and to malign the name of the Prime Minister, who was in office at
the time when the contract was signed. It may be stated a the very outset that the
letter, reliance on which has been placed by Shri Jethmalani, was written by the
Federal Office of Police to the Investigating Judge in Switzerland in connection with
execution of Letters rogatory in Switzerland. This letter has not been written either by
the CBI or by any authority in India. Therefore, it cannot form the basis for assailing
any action of the CBI. That apart we are not concerned here with the merits of the
allegations and the nature of the evidence which the prosecution would produce in
Court to establish the charge as this was not the plea of the accused before the High
Court nor the High Court has examined the same. The High Court has proceeded on
entirely different grounds for quashing the cognizance taken by the learned Special
Judge.
31. In reply to the petition filed by respondent Prakash Hinduja in the High Court,
separate counter-affidavits on behalf of CBI and CVC were filed. In the counteraffidavit filed by CBI in para 5 the details of the Ordinances issued are given and it is
stated that the Bill is pending before the Parliament and consequently no statutory
power of superintendence had as yet been conferred upon the CVC and its role in
relation to investigation of offences under the Prevention of Corruption Act was
governed by the Government Resolution dated 4.4.1999 which was issued as the
Ordinance was going to lapse. The Resolution provided that CVC shall have the power
to inquire or cause an inquiry or investigation to be made on a reference made by the
Central Government wherein it is alleged that a public servant above a particular level
has committed an offence under the Prevention of Corruption Act and no review the
progress of applications pending with the competent authorities for sanction of
prosecution under the aforesaid Act. The CVC shall exercise superintendence over the
vigilance, administration of various Ministries of the Central Government or
Corporations established by or under any Central Act and shall tender advice to them.
In para 7 of the counter-affidavit it is stated that under the existing administrative
directions the CBI has a practice of reporting to the CVC all developments in cases

involving public servants. Accordingly, well before filing of the first charge sheet, an
investigation report was sent to the CVC and CVC was apprised of the developments in
the case. It is further stated that the name of G.P. Hinduja is mentioned in the FIR
itself and since in the first charge sheet it was mentioned that further investigations
are being carried out to unearth the full details of the commission paid by Bofors and
the papers received in December 1999 revealed with sufficient particularity receipt of
commissions by Hinduja brothers, a supplementary charge sheet was filed against
them. The Counter-affidavit on behalf of the CVC was filed by Shri RK Bajaj, Director in
the Central Vigilance Commission. In para 3 of the affidavit it is categorically stated
that the statements made in the counter-affidavit filed by CBI as to the presentation of
the investigation report to the CVC are correct. It is further stated that CVC has no role
in filing of the charge sheets and the conduct of cases as pleaded by the accused and
the directions of the Supreme Court in Vineet Narain only require the CVC to function
in a supervisory character. Investigation of cases, filing of charge sheets and then
prosecution of such cases are essentially for the CBI, the duty of the CVC being to
ensure that the CBI discharges its duties without any interference and without undue
favour to any person. In para 7 it is stated that the CVC holds review meetings with
the CBI to review the progress of cases and the meetings are held on monthly basis
and in this manner the CVC is discharging its duties under the Government Resolution
dated 4.4.1999 as well as the directions of this Court. It is also specifically stated that
the registration of cases and its investigation is primarily the duty of CBI and filing of
charge sheet does not in any manner require any approval of the CVC. The averments
made in these affidavits clearly show that the investigation report was sent to the CVC
by the CBI before filing of the first charge sheet and the CVC was also apprised of the
developments in the case. As mentioned earlier, in para 62 of the first charge sheet, it
was clearly mentioned that the investigation regarding further transfer of the funds
routed through various countries was continuing and investigation regarding the role
played by three Hinduja brothers was also continuing. On account of the fact that CVC
Bill could not be passed by the Rajya Sabha, the functioning of the CVC was being
regulated by the Government Resolution dated 4.4.1999 and this nowhere provided for
taking any concurrence or approval from the CVC before filing of the charge sheet. The
CVC having filed an affidavit stating that investigation report had been submitted to it
by the CBI and that it had no role in the filing of the charge-sheet and the conduct of
the cases, the plea raised by the accused fell to the ground and the petition filed by
him ought to have been dismissed straight away. The High Court committed serious
error in not giving due consideration to the counter affidavits filed by the CBI and CVC
and especially to the fat that on account of non-passing of the CVC Bill by the Rajya
Sabha and lapsing of the Ordinance, the duties and functions of the CVC are to be
performed in accordance with the Government of India Resolution dated 5.4.1999,
which nowhere provided for taking any kind of a concurrence or approval from the CVC
before submission of the charge sheet.
32. In para 31 of the judgment, the High court has placed reliance on Gokul Chand
Dwarka Das Morarka v. King AIR 1948 PC 82. But here the conviction was set aside as
the sanction granted to prosecute the accused, which was a recruitment of the statute,
was found to be invalid. As discussed earlier there is no requirement of any sanction by
the CVC either under any statute or even under the directions of Vineet Narain and,
therefore, the ratio of this case can have no application at all. In para 34 of the
judgment the High court has placed reliance on Prabhu Dayal Deorah v. District
Magistrate MANU/SC/0056/1973 : 1974CriLJ286 , wherein the detention order
passed under Maintenance of Internal Security Act was set aside on the finding that
one of the grounds communicated to detenu was vague. We fail to understand how the

principle laid down in a case where challenge is made to preventive detention can have
any application whatsoever to the case in hand.
33. With respect we find the High Court judgment to be quite confusing and self
contradictory. In para 18(c) it is observed that "there is no requirement to seek
clearance before charge sheets are filed" and in para 19 it is said that "the only
requirement in this regard is of reporting and the role of the CVC on this would be to
give its comments in its annual report." In para 20 it is said that "the direct power of
review granted to the CVC is only of pending applications for sanction" and "the CVC is
not cast with the role of reviewing as such the steps taken in the course of
investigation and thereafter." In para 21 it is said that "the duty to report of the steps
taken in the course of investigation is not and cannot be equated with the duty to
obtain prior approval or consent of any other authority to these steps." Again in para
24 it is said that "the contention of the petitioner that a breach of these directions
would render the action of the CBI void since the directions are to be rigidly complied
with is equally misconceived." It is further said that "even the rigid compliance with
these directions cannot go beyond the CVC over-viewing CBI's working and the CBI's
reporting to the CVC."
34. The High Court having arriving at the aforesaid findings, the only result which
could logically follow was to dismiss the petition. There was absolutely no occasion for
allowing the same and quashing the cognizance and further proceedings in the case.
35. In view of the discussion made above the appeals are allowed and the judgment
and order dated 10.6.2002 of the High Court is set aside. The learned Special Judge
shall proceed with the trial of the case. While framing the charge he shall carefully
scrutinise the material on record and other circumstances of the case in accordance
with law.

Equivalent
Citation: AIR1954SC119,
1954(56)BOMLR681,
[1954]24CompCas103(SC), 1954-67-LW176, (1954)IMLJ355(SC), [1954]1SCR674

IN THE SUPREME COURT OF INDIA

Decided On: 18.12.1953

Appellants:Dwarkadas Shrinivas of Bombay
Vs.
Respondent:The Sholapur Spinning & Weaving Co. Ltd. and Ors.
Hon'ble
Judges/Coram:
M. Patanjali Sastri, C.J., Ghulam Hasan, M.C. Mahajan, Sudhi Ranjan Das and Vivian
Bose, JJ.
Subject: Media and Communication
Subject: Constitution
Catch Words
Mentioned IN
Relevant
Constitution of India - Article 31

Section:

Acts/Rules/Orders:
Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 - Section
3; Constitution of India - Article 14, Constitution of India - Article 19,Constitution of
India - Article 31, Constitution of India - Article 32, Constitution of India - Article
31(2); Indian Companies Act - Section 3, Indian Companies Act - Section 4, Indian
Companies Act - Section 12; Essential Supplies Emergency Powers Act,
1946 ;Government of India Act, 1935 - Section 299(2); Insurance Act, 1950 - Section
52; Railway Companies Emergency Powers Act, 1951 ;Specific Relief Act - Section 45
Cases
Dwarkadas Shrinivas vs.
Ors., MANU/MH/0049/1951
Citing

Discussed
11
Distinguished
1

The

Sholapur

Spg.

&

Overruled/Reversed:
Wvg. Co. Ltd. and

Reference:

Mentioned
4

Case
Note:
Constitution - deprivation of property - Section 3 of Sholapur Spinning and
Weaving Company (Emergency Provisions) Act, 1950, Articles 14, 19, 31, 31
(2) and 32 of Constitution of India, Sections 3, 4, and 12 of Indian Companies
Act, Essential Supplies Emergency Powers Act, 1946, Section 299 (2) of
Government of India Act, 1935, Sections 52-A and 52-B of Insurance Act,
1950, Railway Companies Emergency Powers Act, 1951 and Section 45 of
Specific Relief Act - impugned Ordinance promulgated by Governor General
for managing mills by directors appointed by Central Government - power
delegated to State - directors appointed who took over assets and
management - passed resolution for making call on preference shares notice served on plaintiff to pay amount of said call on his shares - suit filed
to challenge the validity of Ordinance and power of directors to make call suit dismissed by Trial Court - decision affirmed by High Court on appeal Article 31(1) prohibiting State from depriving owner of property by executive
act or without authority of law - appeal before Supreme Court - there must be
public purpose for taking away private property and compensation to be
provided - parts (1) and (2) of Article 31 be read together to harmonize the
intention of protection of property against invasion by State - property to be
construed in widest sense - deprivation depending on facts and
circumstances of each case - held, persons cannot be deprived of property
merely
by
passing
Act.

Industry: Textile
JUDGMENT
M. Patanjali Sastri, C.J.
1. I have fully discussed and explained the meaning and effect of articles 19 and 31 in
my Judgment just delivered in Civil Appeal No. 107 of 1952 - The State of West Bengal
v. Subodh Gopal Bose and Others MANU/SC/0018/1953 : [1954]1SCR587 . On that
view I agree with my learned brothers that the impugned Ordinance authorises, in
effect, a deprivation of the property of the Company within the meaning of
article 31 without compensation and is not covered by the exception in clause (5)(b)
(ii) of that article. The Ordinance thus violates the fundamental right of the Company
under article 31(2), and the appellant as a preference shareholders who is now called
upon to pay the moneys unpaid on his shares is entitled to impugn the
constitutionality of the Ordinance. I also agree with my learned brother Mahajan that
the previous of this Court in Chiranjit Lal Chowdhuri v. The Union of India and

Others [2950] S.C.R. 869. is distinguishable and has no application here for the
reasons mentioned by him.
M.C. Mahajan, J.
2. This is an appeal from the judgment and decree of the High Court of Judicature at
Bombay passed on the 29th day of August, 1950, in Appeal No. 48 of 1950.
3. The appeal concerns the validity of the same piece of legislation that was
considered by this court in the case of Chiranjit Lal Chowdhuri MANU/SC/0009/1950 :
[1950]1SCR869 . There, an ordinary shareholder of the defendant company holding
one fully paid up share claimed relief under Art. 32 of the Constitution of India on the
ground that the provisions of the Sholapur Spinning & Weaving Company (Emergency
Provisions) Act, XXVIII of 1950 abridged his fundamental rights conferred under
Articles 14, 19 and 31 of the Constitution. This Court by a majority of 3 to 2 dismissed
the petition holding that the presumption in regard to the constitutionality of the Act
had not been displaced by the petitioner and that it had not been proved that the
impugned statute was a hostile or a discriminatory piece of legislation as against him,
or that the State had taken possession of his share. The minority held that the
impugned statute was void as it abridged the petitioner's fundamental rights under
Art. 14 of the Constitution. This decision was delivered on 4th December, 1950.
4. The suit out of which this appeal arises was decided by the High Court of Bombay
during the pendency of Chiranjit Lal Chowdhuri's petition in this court. Most of the
facts furnishing the cause of action for the suit have been detailed in the judgment of
this court in that case, but it seems necessary to briefly re-state them for a proper
appreciation of the contentions that have been raised in the appeal.
5. The Sholapur Spinning and Weaving Company Ltd., was incorporated under the
Indian Companies Act with an authorised capital of Rs. 48 lacks divided into 1,590
fully paid up ordinary shares of Rs. 1,000 each, 20 fully paid up ordinary shares of 500
each, and 32,000 partly paid up cumulative preference shares of Rs. 100 each, the
paid up capital of the company being Rs. 32 lacks comprised of Rs. 16 lacks fully paid
up ordinary shares and Rs. 16 lacks partly paid up preference shares, Rs. 50 being
unpaid on each of the 32,000 cumulative preference shares. The company did good
business and declared high dividends for some time; but in the year 1949, there was
accumulation of stocks and financial difficulties.
In order to overcome this situation the directors decided to close the Mills and on the
27th July, 1949, they gave notice of this decision to the workers. Pursuant to this
notice the Mills were closed on the 27th August, 1949. This created a labour problem
and to solve it the Government on the 5th October, 1949, appointed a Controller to
supervise the affairs of the Mills under the Essential Supplies Emergency Powers Act,
1946. On the 9th November, 1949, the Controller in order to resolve the deadlock
decided to call in more capital and he asked the directors of the company to make a
call of Rs. 50 per share on the preference shareholders, the amount remaining unpaid

on each of the preference shares. The directors refused to company with this
requisition, as in their judgment that was not in the interest of the company.
Thereupon the Governor-General on the 9th January, 1950, promulgated the
impugned Ordinance, under which the Mills could be managed and run by directors
appointed by the Central Government. On the 9th January, 1950, the Central
Government acting under section 15 of the Ordinance delegated all its powers to the
Government of Bombay. The Government of Bombay then appointed certain directors
who took over the assets and management of the Mills. On the 7th February, 1950,
they passed a resolution making a call of Rs. 50 on each of the preference shares
payable at the time stated in the resolution. Pursuant to this resolution a notice was
addressed on the 22nd February, 1950, to the plaintiff in the suit, who held preference
shares, to pay Rs. 1,62,000 the amount of the said call on or before the 3rd April,
1950.
The plaintiff instead of meeting the demand, filed the present suit on the 28th March,
1950, in a representative capacity on behalf of himself and other preference
shareholders against the company and the directors appointed by the Government of
Bombay challenging the validity of the Ordinance and questioning the right of the
directors to make the call. On the 19th April, 1950, a notice was given to the AttorneyGeneral of India of the said suit and the Union of India was added as defendant No. 9
therein.
6. The principal allegations in the suit were that the Ordinance was illegal, ultra vires
and invalid as it contravened the provisions of section 299(2) of the Government of
India Act, 1935, and all the provisions contained in Part III of the Constitution, and
that the resolution of the directors dated 7th February, 1950, making a call was illegal
and ultra vires, as the law under which they were appointed was itself invalid. The
plaintiff claimed relief in the form of a declaration regarding the invalidity of the
Ordinance and prayed for an injunction restraining the directors from giving effect to
the resolution. The defendants denied the correctness of the contentions put forward
by the plaintiff.
7. Mr. Justice Bhagwati, who tried the suit, framed the following issues therein :1. Whether by the Ordinance the plaintiff and holders of preference shares
have been deprived of their interest in the 1st defendant company by taking
possession of or requisitioning or acquiring the same as alleged in para 6 of the
plaint;
2. Whether s. 4(d) of the Ordinance is illegal, ultra vires, and void in law as
alleged; and
3. Whether the resolution dated the 7th February, 1950, made by defendants 2
to 6 is illegal, ultra vires, void and inoperative in law for the reasons mentioned
in paragraph 6 of the plaint or any of them.

By his judgment dated the 28th June, 1950, the learned Judge answered all the three
issues in the negative and dismissed the suit, and this decision was affirmed on
appeal. It was held that by force of the Ordinance the State had neither acquired the
property of the plaintiff, nor of the company, nor had it taken possession of it, but that
the title to the property and its possession were with the respective owners, and the
State was only supervising the affairs of the company through its nominated directors.
It was further held that the Ordinance had not in any manner infringed the rights of
the plaintiff under Art. 14 of the Constitution and there had been to him no denial of
equality before the law or equal protection of laws, as the Ordinance was based on a
classification which rested upon a ground having a fair and substantial relation to the
object of the legislation and that it had a reasonable basis for that classification. It was
also held that the restrictions imposed on the right of the appellant and the company
to hold his or its property were imposed in the interests of the general public.
8. The principal questions for consideration in this appeal are :1. Whether the provisions of the Ordinance for taking over the management
and administration of the company, contravene the provisions of
article 31(2) of the Constitution; and
2. Whether the Ordinance as a whole or any of its provisions infringe
articles 14 and 19 of the Constitution.
In order to decide these issues it is necessary to examine with some strictness the
substance of the legislation for the purpose of determining what it is that the
legislature has really done; the court, when such questions arise, is not over
persuaded by the mere appearance of the legislation. In relation to constitutional
prohibitions binding a legislature it is clear that the legislature cannot disobey the
prohibitions merely by employing indirect method of achieving exactly the same result.
Therefore, in all such cases the court has to look behind the names, forms and
appearances to discover the true character and nature of the legislation.
9. The preamble of the Ordinance states :"On account of mismanagement and neglect a situation has arisen in the affairs of the
Sholapur Spinning & Weaving Company, Ltd., which was prejudicially affected the
production of an essential commodity and has caused serious unemployment amongst a
certain section of the community".
12. Section 3 is the most material section and is in these terms :"The Central Government may at any time by notified order appoint as many persons as
it thinks fit to be directors of the company for the purpose of taking over its
management and administration and may appoint one of such directors to be the
chairman."

The provisions of this section are supplemented by what is subsequently provided for
in section 12 which provides that notwithstanding anything contained in the
Companies Act or in the memorandum or articles of association of the company, it
shall not be lawful for the shareholder of the company or any other person to
nominate or appoint any person to be a director of the company, that no resolution
passed at any meeting of the shareholders of the company shall be given effect to
unless approved by the Central Government, and that no proceeding for the winding
up of the company or for the appointment of a receiver in respect thereof shall lie in
any court unless by or with the sanction of the Central Government, and subject to
such exceptions, restrictions and limitations as the Central Government may by
notified order specify, the Companies Act shall continue to apply to the company in the
same manner as it applied thereto before the issue of the notified order under Section
3.
Section 4 states the effect of the order of the Central Government appointing
directors. It provides that all the directors of the company who were holding office as
such immediately before the issue of the notified order shall be deemed to have
vacated their offices. In other words, the directors elected and appointed by the
shareholders stand automatically dismissed without more. Not only do the directors
stand automatically dismissed by legislative action, the managing agents also share
their fate and their contracts come to an end. Section 4 directs the persons appointed
under section 3 to take into custody and under their control all the property, effects
and actionable claims to which the company is or appears to be entitled and to
exercise all the powers of the directors of the company, whether those powers are
derived from the Companies Act or from the memorandum or articles of association or
from any other source.
By section 5 these nominated directors are given powers to raise funds in such manner
and offer such security as they may deem fit. They are given the overriding power of
canceling and varying contracts and agreement entered into between the company
and any other person at any time if they are satisfied that the contract or the
agreement is detrimental to the interest of the company. Section 10 denies to the
managing agents compensation for the premature termination of the contract
management entered into by the company and it also says that no person shall be
entitled to compensation in respect of a canceled or varied contract under this
Ordinance, entered into with the company.
The Ordinance thus confers powers on the directors of overriding all contracts and
deprives persons who had entered into contracts with the company of their right under
the ordinary law to recover compensation. Section 6, 7 and 8 of the Ordinance lay
down the method and manner how the existing directors were to give charge of the
company's affairs and properties to the directors nominated by the Central
Government under section 3 and any default in the matter of handing over charge is
made punishable by imprisonment or other punitive action.
10. The result of these provisions is that all the properties and effects of the company
pass into the hands of persons nominated by the Central Government who are not

members of the company or its shareholders, or in any way connected with it, and
who are merely the creature of the Central Government or its dummies. The combined
effect of the provisions of section 3, 4 and 12 is that the Central Government becomes
vested with the possession, control and management of the property and effects of the
company, and the normal function of the company under its articles and the Indian
Companies Act comes to an end. The shareholders' most valuable right to appoint
directors to manage the affairs of the company and be in possession of its property
and effect is taken away. Resolutions passed by them lose all vigour and become
subject to the veto of the Central Government. Their power of voluntarily winding up
the company formed by them or of winding it up through court also becomes subject
to the veto of the Central Government. The Central Government by executive action
can override, if it likes, all the provisions of the Indian Companies Act.
In substance therefore by the provisions of this Ordinance the company and its
shareholders as well as its directors and managing agents have been completely
deprived of possession of the property and effects of the company, and its possession
has been taken by the Central Government, i.e., by the Union of India. The
undertaking purports to have been taken over for a public purpose, namely, to keep up
the production of an essential commodity, and to avoid serious unemployment
amongst a certain section of the people.
11. The majority of the court in Chiranjitlal Chowdhuri's case MANU/SC/0009/1950 :
[1950]1SCR869 , was inclined to take the view that that was the true effect of the
provisions of the Ordinance. Mukherjea J., with whose views Kania C.J., concurred, and
to whose views to a certain extent Fazl Ali J. subscribed on this part of the case said as
follows :"Mr. Chari, on the other hand, had contended on behalf of the petitioner that
after the management is taken over by the statutory directors, it cannot be
said that the company still retains possession or control over its property and
assets. Assuming that this State management was imposed in the interests of
the shareholders themselves and that the statutory directors are acting as the
agents of the company, the possession of the statutory directors could not, it is
argued, be regarded in law as possession of the company so long as they are
bound to act in obedience to the dictates of the Central Government and not of
the company itself in the administration of its affairs. Possession of an agent, it
is said, cannot juridically be the possession of the principal, if the agent is to
act not according to the commands or dictates of the principal, but under the
direction of an exterior authority.
There can be no doubt that there is force in this contention."
Mr. Justice Patanjali Sastri, as he then was, held that the effect of the Act was that all
the properties and effects of the company passed into the absolute power and control
of the Central Government and the normal function of the company as a corporate
body came to an end. Mr. Justice Das on this part of the case said as follows :-

"It is, however, urged by the learned Attorney-General that the mills and all other assets
now in the possession and custody of the new directors who are only servants or agents
of the said company are, in the eye of the law, in the possession and custody of the
company and have not really been taken possession of by the State. This argument,
however, overlooks the fact that in order that the possession of the servant or agent may
be juridically regarded as the possession of the master or principal, the servant or agent
must be obedient to, and amenable to the directions of, the master or principal. If the
master or principal has no hand in the appointment of the servant or agent or has no
control over him or has no power to dismiss or discharge him, as in this case, the
possession of such servant or agent can hardly, in law, be regarded as the possession of
the company.
In this view of the matter there is great force in the argument that the property of the
company has been taken possession of by the State through directors who have been
appointed by the State in exercise of the powers conferred by the Ordinance and the
Act and who are under the direction and control of the State and this has been done
without payment of any compensation.................... Here, therefore, it may well be
argued that the property of the company having been taken possession of by the State
in exercise of powers conferred by a law which does not provide for payment of any
compensation, the fundamental right of the company has, in the eye of the law, been
infringed."
12. The learned Attorney-General combated this view and strenuously argued that the
Ordinance could not be construed in the manner suggested above and on its true
construction its effect was that the Government took under its superintendence the
affairs of the company without in any way disturbing its title in the property and that
the shareholders have still to a certain extent an effective voice in it's affairs.
Illustratively he said that the company was in the same state as disqualified owner is
under the provisions of the Court of Wards Act and that the provisions of the
Ordinance should be construed in that light. To emphasize the same point of view
reference was also made to the provisions of the Lunacy Act, the provisions of sections
52-A and 52-B introduced in the Insurance Act by Act 47 of 1950, the provisions of the
Railway Companies Emergency Powers Act (51 of 1951), and also to the provisions of
Act 65 of 1951 (Development of Industries Act), and it was contended that the
impugned Ordinance was a piece of social control legislation as were the provisions
contained in the statutes referred to above.
13. In my opinion, these contentions are not well founded. Reference to illustrative
pieces of legislation designed on the same pattern is neither very happy nor apposite;
on the other hand, it is apt to mislead because except in the case of the Court of
Wards Act, all the laws to which reference was made were enacted after the
enactment of the Ordinance in question. The different Court of Wards Acts being
existing laws have been excepted from the fundamental right guaranteed by
article 31(2). That being so, they can afford little assistance in judging the validity of
the impugned law. In dealing with the constitutional matters of this kind it is always
well to bear in mind what Bradley, J., speaking for the court said in Boyd v. United
States 116 U.S. 616. :-

"Illegitimate and unconstitutional practices get their first footing in that way, namely, by
silent approaches and slight deviations from legal modes of procedure. This can only be
obviated by adhering to the rule that constitutional provisions for the security of person
and property should be liberally construed. A close and literal construction deprives them
of half their efficacy and leads to gradual depreciation of the right, as if it consisted more
in sound than in substance. It is the duty of courts to be watchful for the constitutional
rights of the citizen and against any stealthy encroachments thereon."
These illustrative pieces of legislation to which the learned Attorney-General made
reference may well have to be judged in the light of these observations when occasion
arises. Reference may also be made to the observations of Holmes C.J. in Pennsylvania
Coal Co. v. Mahon 260 U.S. 322., wherein that learned Judge said as follows :"As long recognized, some values were enjoyed under an implied limitation and must
yield to police power but obviously the implied limitation must have its limits or the
contract and due process clauses are gone. On fact for considerations in determining
such limits is the extent of the diminution. When it reaches a certain magnitude, in most,
if not in all cases, there must be an exercise of eminent domain and compensation to
sustain the act."
In my judgment, in the determination of all such cases no abstract standard or general
rule can be laid down and the question is really one of degree and hence its
determination depends on the facts of each case. In these circumstances, what is to
be determined here is whether the provisions of the Ordinance have not overstepped
the limits of social legislation and whether they do not come within the ambit of
article 31(2).
14. The Ordinance in question is not a law of a general character and applicable to all
companies that may fall in a particular category or class. It deals only with a single
company and it is difficult to say that mismanagement is a vice peculiar to this
company alone and good management is a virtue possessed by all other incorporated
companies. That being so, can it be reasonably held that by promulgating this
Ordinance the Government has merely taken over the superintendence of the affairs of
the company ? Or, has it in effect and substance taken over the undertaking itself ?
Obviously, the field of superintendence has to be demarcated from the field of eminent
domain. It is one thing to superintend the affairs of a concern and it is quite another
thing to take over its affairs and then proceed to carry on its trade through agents
appointed by the State itself. It seems to me that under the guise of superintendence
of the State is carrying on the business or trade for which the company was
incorporated with the capital of the company but through its own agents who take
orders from it and are appointed by it and in the appointment and dismissal of whom
the shareholders have absolutely no voice. The purpose of taking over the company's
undertaking is a public purpose, namely, to keep the labour going and contended and
to maintain the supply of essential commodity. The company is debarred from carrying
on its business in the manner and according to the terms of its charter. Its old
complexion stands changed by the terms of the Ordinance. The Ordinance overrides
the directors, deprives the shareholders of their legal rights and privileges and

completely puts an end to the contract of the managing agents. Without there being
any vacancy in the number of directors new directors step in and old directors and
managing agents stand dismissed. Exercise of any power by them under the articles is
subject to heavy penalties. In this situation it is not possible to subscribe to the
contention of the learned Attorney General that the effect of the Ordinance is that the
Central Government has taken over the superintendence of the affairs of the company
and that the impugned legislation is merely regulative in character. In the present
case, practically all incidents of ownership have been taken over by the State and all
that has been left with the company is mere paper ownership. This Ordinance, in my
judgment, is an apposite illustration of what Holmes C.J. had in mind when he made
the following observations in the case already referred to :"Where the seemingly absolute protection in respect of private property given by the
Constitution is found to be qualified by the police power, the natural tendency of human
nature is to extend the qualification more and more until at last private property
disappears. We are in danger of forgetting that a strong public desire to improve the
public condition is not enough to warrant achieving the desire by a shorter cut than the
constitutional way of paying for the change and that the general rule is that while
property may be regulated to a certain extent but if the regulation goes too far it will be
recognized as a taking."
For the reasons given above I am of the opinion that the impugned statute has
overstepped the limits of legitimate social control legislation and has infringed the
fundamental right of the company guaranteed to it under article 31(2) of the
Constitution and is therefore unconstitutional.
15. Next it was contended that the Ordinance in question in any event could not fall
within the mischief of article 31(2) because the State had not acquired title in the
property of the company under its provisions and that whatever possession had been
taken for the purpose of managing the company's property on the company's behalf
and that it had not been requisitioned for any State purpose. It was said that unless
the property of the company by the provisions of the Ordinance was vested in the
State or was commandeered by the State for State purposes, article 31(2) could not
be invoked to judge the constitutionality of the Ordinance, that article 31(2) covered
within its ambit only two forms of taking of property by the State, namely, where the
State acquired title in the property or where the State temporarily commandeered it,
and that all other forms of taking the property were outside the fundamental right
guaranteed by article 31(2).
It was suggested that the scope of the protection given to private property by our
Constitution was no as large as it was contained in the Fifth Amendment of the
Constitution of the United States of America. According to the learned AttorneyGeneral, the true content of the fundamental right guaranteed by article 31(1) was
that a person could not be deprived of his property except by statutory authority, but
once a law was made depriving a person of his property then the article afforded no
further protection. Support for this contention was sought to be derived from the
reasoning employed in Gopalan's case MANU/SC/0012/1950 : 1950CriLJ1383 .

There it was held that the freedoms relating to the person of a citizen guaranteed by
article 19 assume the existence of a free citizen and can no longer be enjoyed if a
citizen is deprived of his liberty by the law of preventive or punitive detention. In like
manner it was argued that the freedom relating to the property guaranteed by
article 19 also vanished as soon as a person was deprived of his property under a law
enacted by an appropriate legislature.
The learned Attorney-General suggested that the two clauses of article 31 were in the
nature of two exceptions to the provisions of article 19(1)(f). The first exception was
that the guarantee of freedom given by article 19(1)(f) could be defeated simply by
enacting a statute and the second exception was that it could also be defeated by the
State acquiring title in the property in exercise of its power of eminent domain within
the limited field prescribed by article 31(2) but that if a certain deprivation of property
did not fall with in the prescribed field of article 31(2) and fell within article 31(1), then
for such deprivation no compensation was payable. As regards clause (5) which
excepted certain laws from the ambit of article 31(2), it was argued that this clause
had been inserted in the article by way of abundant caution.
16. In my judgment, none of these contentions have any validity. The construction
sought to be placed by the learned Attorney-General on the language of article31 is
neither borne out by the phraseology employed in that article nor by the scheme of
Part III of the Constitution. It seems to me that our Constitution subject to a certain
exception has guaranteed the fullest protection to private property. It has not only
provided that no person can be deprived of property by the executive without
legislation sanction but it has further provided that even the legislature cannot deprive
a person of his property unless there is a public purpose and then only on payment of
compensation. This article provides as follows :"31. (1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any
company owning, any commercial or industrial undertaking, shall be taken
possession of or acquired for public purposes under any law authorising the
taking of such possession or such acquisition, unless the law provide for
compensation for the property taken possession of or acquired and either fixes
the amount of the compensation, or specifies the principles on which, and the
manner in which, the compensation is to be determined and given.
(3) No such law as is referred to in clause (2) made by the Legislature of a
State shall have effect unless such law, having been reserved for the
consideration of the President, has received his assent.
(4) If any Bill pending at the commencement of this Constitution in the
legislature of a State has, after it has been passed by such Legislature, been
reserved for the consideration of the President and has received his assent,
then, notwithstanding anything in this Constitution, the law so assented to

shall not be called in question in any court on the ground that it contravenes
the provisions of clause (2).
(5) Nothing in clause (2) shall affect (a) the provisions of any existing law other than a law to which the
provisions of clause (6) apply, or
(b) the provisions of any law which the State may hereafter make (i) for the purpose of imposing or levying any tax or penalty, or
(ii) for the promotion of public health or the prevention of
danger to the life or property, or
(iii) in pursuance of any agreement entered into between the
Government of the Dominion of India or the Government of
India and the Government of any other country, or otherwise,
with respect to property declared by law to be evacuee property.
(6) Any law of the State enacted not more than eighteen months before the
commencement of this Constitution may within three months from such
commencement be submitted to the President for his certification; and
thereupon, if the President by public notification so certifies, it shall not be
called in question in any court on the ground that it contravenes the provisions
of clause (2) of this article or has contravened the provisions of sub-section (2)
of section 299 of the Government of India Act, 1935."
It bears the heading "Right to Property". It is significant that the different articles in
Part III have been put in several groups, each bearing a heading of its own. These
headings briefly indicate the nature and character of the fundamental rights thus
grouped. The first group of articles 14 to 18, bears the hearing "Right to Equality". The
fundamental right of equality in matters of law, religion, social status etc. is mentioned
in the different articles grouped under this heading. Articles19 to 22 have been
grouped under the heading "Right to Freedom". Not only are the protections given
against deprivation of personal freedom mentioned in this group but it also mentions
cases where personal freedom can be deprived by certain laws. Similarly, other articles
in this part have been grouped under the headings "Right against exploitation",
"Educational rights" and "Constitutional remedies".
Under this scheme the fundamental right regarding property apart from personal and
property freedoms has been dealt with in this part separately as a self-contained
provision and as a distinct subject from the various freedoms declared by article 19. In
considering article 31 it is significant to note that it deals with private property of
persons residing in the Union of India, while article 19 only deals with citizens defined
in article 5 of the Constitution. It is thus obvious that the scope of these two articles
cannot be the same as they cover different fields. It cannot be seriously argued that
so far as citizens are concerned, freedoms regarding enjoyment of property have been

granted in two articles of the Constitution, while the protection to property qua all
other persons has been dealt with in article 31 alone. If both articles covered the same
ground, it was unnecessary to have two articles on the same subject. The true
approach to this question is that these two articles really deal with two different
subjects and one has no direct relation with the other, namely, article 31 deals with the
field of eminent domain and the whole boundary of that field is demarcated by this
article. In other words, the States power to take the property of a person is
comprehensively delimited by this article.
The article has been split up in six clauses. Moreover, by the amendment of the
Constitution certain kinds of laws have been exempted from the operation of the
article or from the whole of Part III of the Constitution by the addition of
articles 31A and 31B. Article 31(1) declares the first requisite for the exercise of the
power of eminent domain. It guarantees that a person cannot be deprived of property
by an executive fiat and that it is only by the exercise of its legislative powers that the
State can deprive a person of this property. In other words, all that article 31(1) says
is that private property can only be taken pursuant to law and not otherwise. A
reference to Coolley's Constitutional Limitations fully bears out what the true content
of article 31(1) is. This is what he has said at page 1119 (8th edn.) :"Legislative authority requisite : The right to appropriate private property to public uses
lies dormant in the State, until legislative action is had, pointing out the occasions, the
modes, conditions and agencies for its appropriations. Private property can only be taken
pursuant to law."
17. Article 31(2) defines the powers of the legislature in the field of eminent domain.
It declares that private property shall not be taken by the State under a law unless the
law provides for compensation for the property taken. It is also implicit in the language
of the article that such taking can only be for public purposes. Clause (3) of the article
places an additional limitation on State laws enacted on this subject while clause (4)
limits the justifiability of the quantum of compensation in certain cases. Clause (5) is
the saving clause. It saves from the operation of clause (2) laws made on certain
subjects. The scope of the first clause being merely to save private property from
being taken purely by executive action and the only clause which limits legislative
action in the filed of eminent domain being clause (2), the saving clause therefore
concerns itself with clause (2) only.
18. As pointed out in Will is on Constitutional Law, at page 716 police power, of
taxation and eminent domain are all forms of social control and probably include all
the forms of social control known to the law : but each differs from the others; though
it is possible to distinguish each from the others, yet each has characteristics which
resemble the characteristics of others and there are times when it is very difficult to
draw a line between the one and the others. The saving clause (5) in article 31 has
been designed with the express purpose of saving to a certain extent laws made in
exercise of the power of the State which may lead to deprivation property. It has also
saved laws relating to tax. It has thus delimited from the field of eminent domain the
field of exercise of police power and the exercise of the power of taxation.

Not only has it saved from the mischief of clause (2) of article 31 provisions of laws
made for the purpose of imposing or levying any tax or penalty and the laws made for
promotion of public health or the prevention of danger to life or property, but it has
also saved from the mischief of the clause the provisions of all existing laws which may
be construed as amounting to deprivation of property of a person as well as evacuee
property laws under which the State takes possession of properties of persons who
have left India for Pakistan. In the result the saving clause comprehensively includes
within the ambit all the powers of the State in exercise of which it could deprive a
person of property without payment of compensation. In other words, all forms of
deprivation of property by the State without payment of compensation have been
included within the ambit of the exception clause, while other forms of deprivation of
property which are outside the ambit of the exception clause are inevitably within the
mischief of clause (2) of the article.
From the language employed in the different sub-clauses of article 31 it is difficult to
escape the conclusion that the words "acquisition" and "taking possession" used in
article 31(2) have the same meaning as the word "deprivation" in article 31(1). The
learned Attorney-General suggested that much weight could not be attached in
construing article 31 to the provisions of clause (5) inasmuch as the saving clause had
been introduced by the article merely by way of abundant caution. I am unable to
accede to this contention as it seems to me that the Constitution while defining and
delimiting fundamental rights would not introduce in the articles dealing with those
rights some matter merely by way of abundant caution. To my mind, it was essential
while delimiting and defining fundamental rights to fully define the field of the right
and to say what was not included within that right.
As already said, the article read as a whole comprehensively defines the State's power
of eminent domain as distinguished from all its other powers the exercise of which
may amount to the taking of private property. The argument that these exceptions
were incorporated in article 31 by way of abundant caution further stands negatived
by the contents of sub-clause (5)(b)(ii) of the article. Only laws made for the
promotion of public health or for prevention of danger to life or property have been
excluded from the mischief of clause (2) of the articles, while other laws made in
exercise of power of social control which deprive a person of property have not been
saved from the operation of clause (2). Illustratively, laws made by the State dealing
with morality and which may lead to deprivation of property are outside the ambit of
the exception clause. A fortiori, any deprivation of property under a law made for
promotion of morality would fall within the mischief of clause (2) of article 31. It is
thus clear that only that form of legislation which promotes public health or prevention
of danger to life or property is saved from the provisions of article 31(2), while other
laws made in exercise of the power of social control, if they deprive a person of
property, are not saved from the operation of clause (2) of article 31.
19. In support of this contention that the content of article 31(1) was larger than that
of article 31(2) and that except in cases where the form of taking private property
took the shape of acquisition of title or requisition for State uses, in all other cases the
State could deprive a person of this property by simply making a law, the learned

Attorney General placed reliance on the following observations of my brother Das in

Chiranjit Lal Chowdhuri's case MANU/SC/0009/1950 : [1950]1SCR869
"Article 31(1) formulates the fundamental right in a negative form prohibiting
the deprivation of property except by authority of law. It implies that a person
may be deprived of his property by authority of law. Article 31(2) prohibits the
acquisition or taking possession of property for a public purpose under any law,
unless such law provides for payment of compensation. It is suggested that
clauses (1) and (2) of article 31 deal with the same topic, namely compulsory
acquisition or taking possession of property, clause (2) being only an
elaboration of clause (1). There appear to me to be two objections to this
suggestion. If that were the correct view, then clause (1) must be held to be
wholly redundant and clause (2), by itself, would have been sufficient.
In the next place, such a view would exclude deprivation of property otherwise
than by acquisition or taking of possession. One can conceive of circumstances
where the State may have to deprive a person of his property without acquiring
or taking possession of the same. For example, in any emergency, in order to
prevent a fire spreading, the authorities may have to demolish an intervening
building. This deprivation of property is different from acquisition or taking of
possession of property which goes by the name of 'eminent domain' in the
American law. The construction suggested implies that our Constitution has
dealt with only the law of 'eminent domain', but has not provided for
deprivation of property in exercise of 'police power'.
I am not prepared to adopt such construction, for I do not feel pressed to do so
by the language used in article 31. On the contrary, the language of clause (1)
of article 31 is wider than that of clause (2), for deprivation of property may
well be brought about otherwise than by acquiring or taking possession of it. I
think clause (1) enunciates the general principle that no person shall be
deprived of his property except by authority of law, which, put in a positive
form, implies that a person may be deprived of his property, provided he is so
deprived by authority of law. No question of compensation arises under clause
(1). The effect of clause (2) is that only certain kinds of deprivation of property,
namely, those brought about by acquisition or taking possession of it, will not
be permissible under any law, unless such law provides for payment of
compensation. If the deprivation of property is brought about by means other
than acquisition or taking possession of it, no compensation is required,
provided that such deprivation is by authority of law."
Similar observations were made by my brother in the Bihar Zamindary
case MANU/SC/0019/1952 : [1952]1SCR889 . Undoubtedly great weight must be
given to the opinion expressed on this question by my learned brother and had I not
felt convinced that his approach to this question was illiberal and restricted, I would
have hesitated to differ from his views. After a full consideration of the problem and
after giving due weight to the reasoning of my learned brother, I am unable, for
reasons above stated, to agree with him. The objections envisaged by my brother in

Chiranjit Lal Chowdhuri's case MANU/SC/0009/1950 : [1950]1SCR869 against the

suggestion that clauses (1) and (2) of article 31 deal with the same topic of
compulsory acquisition or taking of property do not at all oppress me and do not seem
to me to be insurmountable or cogent.
20. On the assumption that clauses (1) and (2) of article 31 deal with the same topic,
it is not clear to me why in that context article 31(1) somehow becomes redundant.
This is the only clause in the article which gives protection to private property from
being taken under executive orders without legislative sanction behind them. The first
requisite for the exercise of the power of eminent domain is that it can only be
exercised pursuant to law. It was necessary while delimiting the field of eminent
domain to state that in the article. If the State had been entitled by clause (1) to take
away private property merely by making a law, then no question of paying
compensation would arise, whether the taking assumed one form or another.
Acquisition of property or its requisition, on that construction of the article, are merely
two modes of depriving a person of property and must be held to be included within
the ambit of clause (1) of article 31, and clause (2) as not been drafted in the nature
of an exception to the provisions of clause (1) of article 31. On this construction of
clause (1) of article 31 the logical conclusion is that what has been done by this clause
is that it has declared a fundamental right in the State as against an individual. Such a
construction of article in Part III, in my opinion, has to be avoided, as the purpose of
those articles is to declare the fundamental rights pressed by the citizens or other
persons residing within the Union, rather than to declare the rights of the State as
against them.
21. Secondly, my learned brother was oppressed with the idea that if a wide
construction was not placed on the phraseology employed in clause (1), deprivation of
property by the State in cases of emergency for instance, in order to prevent a fire
from spreading, would also have to be paid for. It seems that in that case pointed
attention was not drawn during arguments to the comprehensive provisions of the
saving clause of the article which seems fully to cover cases of that kind. The
Constitution makers were fully alive to cases of that character and considering that all
such cases, unless excepted, would fall within the mischief of clause (2), they
purposely excepted them from the ambit of the clause.
22. The majority of the court in Chiranjit Lal Chowdhuri's case MANU/SC/0009/1950
: [1950]1SCR869 refrained from expressing any opinion on the scope of article 31(1).
My brother Mukherjea made a reference to this question but declined to express any
opinion on it. There is thus no consensus of opinion on the scope of the provisions of
clause (1) of article 31 in this court and no final opinion has been pronounced upon it
so far.
23. The result of the above discussion is that, in my opinion, article 31 is a selfcontained provision delimiting the field of eminent domain and article 31 clauses (1)
and (2) deal with the same topic of compulsory acquisition of property.

24. The contention of the learned Attorney-General that on the analogy of the decision
of this court in Gopalan's case MANU/SC/0012/1950 : 1950CriLJ1383 it should be
held that when a person is deprived of private property by authority of law that
deprivation puts an end to all the freedoms regarding property guaranteed under
article 19, does not require any detailed examination in the light of the construction
placed by me on the language of article 31(1). It was conceded by the learned counsel
that decision would have had no application once it was held that clauses (1) and (2)
of article 31 dealt with the same topic of compulsory acquisition of property.
25. The next contention of the learned counsel that the word "acquisition"
in 31(2) means the acquisition of title by the State and that unless the State becomes
vested with the property there can be no acquisition within the meaning of the clause
and that the expression "taking possession" connoted the idea of requisition cannot be
sustained and does not, to my mind, affect the decision of the case. As above pointed,
both these expressions used in clause (2) convey the same meaning that is conveyed
in clause (1) by the expression "deprivation". As I read article 31, it gives complete
protection to private property as against executive action, no matter by what process
a person is deprived of possession of it. In other words, the Constitution declares that
no person shall be deprived the possession of private property without payment of
compensation and that too under the authority of law, provided there was a public
purpose behind that law.
It is immaterial to the person who is deprived of property as to what use the State
makes of his property or what title it acquires in it. The protection is against loss of
property to the owner and there is no protection given to the State by the article. It
has no fundamental right as against the individual citizen. Article 31states the
limitations on the power of the State in the field of taking property and those
limitations are in the interests of the person sought to be deprived of his property. The
question whether acquisition has a larger concept than is conveyed by the expression
"taking possession" is really of academic interest in view of the comprehensive
phraseology employed by clause (2) of article 31. As the matter was argued at some
length, I propose to briefly indicate my opinion on that point.
26. For the proposition that the expression "acquisition" has the concept of vesting of
title in the State reliance was placed on the opinion of Latham C.J. in Minister of State
for the Army v. Dalziel 63 C.W.L.R. 261.. By virtue of the provisions of
section 51, placitum (xxxi) of the Constitution of Australia, the Commonwealth
Parliament is empowered to make laws with respect to "acquisition of property on just
terms from any state or person for any purpose in respect of which the Parliament has
power to make laws." General regulations styled as the National Security Regulations
were made under the national Security Act, 1939-1943, section 5. Regulation 54
relates to the taking of possession of land by the Commonwealth and other regulations
provide for the ascertainment and payment of compensation for loss or damage
suffered by reason of things done in pursuance of the regulation.
The Supreme Court of New South Wales held that taking possession of land in
pursuance of Reg. 54 amounted to acquisition of property within the meaning of

section 51 (xxxi) of the Constitution. On appeal Latham C.J. made the following
observations :The Commonwealth cannot be held to have acquired land unless it has become
the owner of land or some interest in land. If the Commonwealth becomes only
a possessor but does not become an owner of land, then, though the
Commonwealth may have rights in respect to land, which land may be called
property, the Commonwealth has not in such a case acquired property......
Accordingly, in my opinion, the facts that the right to possession is the most valuable
attribute of ownership, that possession is prima facie evidence of ownership, and that
possession may develop into ownership, do not justify any identification of possession
with ownership, but, on the contrary, emphasize the distinction between the two ideas.
The fact that the Commonwealth is in possession of land as a result of action under the
Regulations does not show that the Commonwealth has become the owner of the land or
of any estate in the land".
The majority of the court held otherwise and expressed the opinion that the taking
under Regulation 54 of the National Security (General) Regulations by the
Commonwealth for an indefinite period of the exclusive possession of property
constituted an acquisition of property within the meaning of section 51 (xxxi) of the
Constitution. This is what Rich J. said, representing the majority opinion :"It would, in my opinion, be wholly inconsistent with the language of the
placitum to hold that, whilst preventing the legislature from authorizing the
acquisition of a citizen's full title except upon just terms, it leaves it open to the
legislature to seize possession and enjoy the full fruits of possession,
indefinitely, on any terms it chooses, or upon no terms at all. In the case now
before us, the Minister has seized and taken away from Dalziel everything that
made his weekly tenancy worth having, and has left him with the empty husk
of tenancy. In such circumstances, he may well say :"You take my house, when you do take the prop That doth sustain my house; you take
my life, When you do take the means whereby I live.'"
In the present case nothing has been left with the company but the mere husk of title.
27. In my judgment, the true concept of the expression "acquisition" in our
Constitution as well as in the Government of India Act is the one enunciated by Rich J.
and the majority of the court of Dalziel's case 68 C.W.L.R. 261.. With great respect I
am unable to accept the narrow view that "acquisition" necessarily means acquisition
of title in whole or part of the property. It has been rightly said that a close and literal
construction of constitutional provisions made for the security of person and property
deprives them of half their efficacy and ends in a gradual depreciation of the right as if
the right consisted more in sound than in substance. In other words, such provisions
cannot be construed merely by taking a dictionary in hand. The word "acquisition" has
quite a wide concept, meaning the procuring of property or the taking of it

permanently or temporarily. It does not necessarily imply the acquisition of legal title
by the State in the property taken possession of.
The learned Attorney General combated this view and contended that such a wide
concept of the meaning of the word "acquisition" was contrary to legislative practice in
India which practice was in accord with the view enunciated by Latham C.J. in the case
above cited. It was said that the decided cases in India supported that construction of
the word. Reference was made to a decision of Bhagwati J. in Tan Bug Taim v. Collector
of Bombay I.L.R. 1940 Bom 517.. That case concerned the requisition by the State of
the premises of a leading Bombay Chinese restaurant. On a petition present to court
under section 45 of the Specific Relief Act, Bhagwati J. held that having regard to the
principles applicable to British jurisprudence which had been enacted in section 299(1)
and (2) of the Government of India Act, requisition of land could not be considered as
being included either in item 9 or item 21 of List II of the 7th Schedule of the Act, that
the word "acquisition" implied ownership in the property or rights in or over such
property, while "requisition" implied deprivation of the owner of the property for the
time being of the use and possession thereof and meant control of the property, and
that there was no warrant for holding that so far as legislative practice in India was
concerned, "requisition" was included in "acquisition".
The learned Judge preferred to follow the view of Latham C.J. and refused to follow
the majority judgment in Dalziel's case 68 C.W.L.R. 261.. Having considered the
matter in full, and with respect to the learned Judge, I prefer to follow the view of the
majority of the court, because it seems to me that it is more in consonance with
juridical principle that possession after all is nine-tenths of ownership, and once
possession is taken away, practically everything is taken away, and that in construing
the Constitution it is the substance and the practical result of the act of the State that
should be considered rather than its purely legal aspect. As already said, the correct
approach in such cases should be this : what in substance is the loss or injury caused
to the owner and not what manner and method has been adopted by the State in
taking the property.
28. That the view expressed by Bhagwati J. did not truly represent the intent of
Parliament in drafting entry 9 of List II of the 7th Schedule becomes clear from what
happened subsequent to this pronouncement. After this judgment was delivered, an
Act was passed by Parliament amending the Government of India Act nullifying the
effect of the judgment as regards requisition of property. The Indian (Proclamation of
Emergency) Act, 1945, (9 & 10 Geo. 6 Ch. 23) was promulgated on February 14,
1946, the judgment of Bhagwati J. having been delivered on August 9, 1945
section 102 of the Government of India Act was amended and by it the Central
Legislature, when a proclamation of emergency was in force, was empowered to make
laws for a province or a part thereof, in respect of any matters not enumerated in any
of the lists of the 7th Schedule.
Reference was also made to certain observations of my brother Das in Chiranjit Lal
Chowdhuri's case A.I.R. 1953 Pun 9. in which the opinion was expressed that the word

"acquisition" had implicit in it the idea of vesting of property in the State. For the
reasons already given, with great respect, I am unable to subscribe to that view.
29. Reference was also made to a decision of the Punjab High Court in Jupiter General
Insurance Co. v. Rajagopalan MANU/PH/0002/1952 . This case concerned the
provisions of section 52 and 52(a) of the Insurance Amendment Act, 1950. It was
contended there that those provisions abridged the fundamental rights guaranteed by
article 31(2) of the Constitution. In view of the decision of this Court in Chiranjit Lal
Chowdhuri's case MANU/SC/0009/1950 : [1950]1SCR869 , the Punjab High Court
construed the word 'acquisition' in the narrower sense and held that as the beneficial
interest in the property remained in the insurer the provisions of the impugned section
did not amount to appropriation of the insurer's property and merely amounted to
exercise of police power.
It was further held that the pith and substance of the impugned legislation was the
regulation of insurance companies and winding up such corporations, if that was most
advantageous to the general interest of policy holders. It is unnecessary for the
purpose of this case to say anything about the correctness of that decision.
30. In the light of these different decisions the Constitution employed more
comprehensive phraseology in article 31 than had been employed in the entries of the
7th Schedule appended to the Government of India Act, 1935, and which became the
subject-matter of construction in the case decided by Bhagwati J. In the entries of the
7th Schedule appended to the Constitution the word used is "requisition" but the same
phraseology has not been employed purposely in clause (2) of article 31, in all
probability to avoid any controversy on the scope of the article by giving a limited
meaning to these two words.
31. On the finding that the company's property was in effect taken possession of under
the provisions of the Ordinance by the State and that the company was deprived of it,
there is no escape from the conclusion that the impugned Ordinance and the statute
following it are void as both of them encroach on the fundamental right of the
company under article 31(2) of the Constitution.
32. It was then argued that even so the plaintiff in the suit was not entitled to the
relief claimed by him as it was the company alone that could complain about the
abridgment of its fundamental rights by the Ordinance in question. It was also
contended that the plaintiff's fundamental right to property had not been infringed in
any manner as his property in the share had not been taken possession of by the
State. Finally it was said that on both these questions the majority division of this
court in Chiranjit Lal Chowdhuri's case MANU/SC/0009/1950 : [1950]1SCR869 was
conclusive. I am unable to sustain any one of these contentions. Undoubtedly the
majority division in Chiranjit Lal Chowdhuri's case MANU/SC/0009/1950 :
[1950]1SCR869 has binding force till it is reconsidered or overruled by this court. But
this decision, in my opinion, has no apposite application to the facts and circumstances
of this case is clearly distinguishable. My reasons for saying so are these :-

33. The decision in Chiranjit Lal Chowdhuri's case MANU/SC/0009/1950 :

[1950]1SCR869 was given on a petition presented to this court in exercise of its
jurisdiction under article 32 of the Constitution. Inter alia, Chowdhuri's grievance was
that his fundamental right under article 31(2) of the Constitution had been infringed
by the impugned law, inasmuch as the State had taken possession of the company's
property and that all the rights and privileges annexed to his share had thereby been
lost. The majority of the court took the view that the petitioner was still in possession
of his share and that he had power to dispose of that share, that he could receive a
dividend on that share, and that though he had lost some of the privileges annexed to
his share, it could not be said that the State had taken possession of his share or was
exercising the privileges which he enjoyed as a shareholder.
The situation however of the present plaintiff and of all the preference shareholders
whom he represents is quite different. Chiranjit Lal was an ordinary shareholder of a
fully paid up share. The plaintiff and the other preference shareholders are in a
different situation from Chiranjit Lal. All of them hold partly paid up preference shares
on which their liability amounts to a sum of Rs. 16 lakhs, the plaintiff alone being
under a liability of Rs. 1,62,000. In case this liability is not met when it is sought to be
enforced, the shares are liable to forfeiture. The plaintiff and the other preference
shareholders therefore are in imminent danger of losing the shares themselves or
losing valuable property in the nature of money which they will have to pay out in
order to meet the call.
For all practical purposes the plaintiff is in danger of losing valuable property which the
State is threatening to take possession of. Not only will these shareholders lose their
shares and be deprived of them but they will also be forced to pay large sums of
money and all this will be in exercise of the powers conferred on the directors
appointed by the State by the Ordinance in question. There can thus be no comparison
between the rights and liabilities of Chiranjit Lal with the rights and liabilities of the
present plaintiff and the other preference shareholders.
34. The rights and privileges of preference shareholders even in winding up and in
earning dividends are somewhat different from the rights and privileges of the
ordinary fully paid up shareholders. The court in Chiranjit Lal Chowdhuri's case [1950]
S.C.R. 860 did not at all advert to the case of preference shareholders and the effect
the Ordinance had on their rights. It is evident that it was the refusal of the directors
to obey the mandate of the Controller appointed by the Central Government to make a
call on the preference shareholders that to a certain extent resulted in making of the
Ordinance.
On the 5th October, 1949, the Government appointed a Controller to supervise the
affairs of this company. On the 9th November, 1949, the Controller asked the directors
of the company to make a call on the preference shareholders. Soon after the
directors passed a resolution refusing to comply with the command. On the 9th
January, 1950, the Ordinance was promulgated, i.e., soon after the refusal, and on the
same day powers were delegated by the Central Government to the Bombay
Government under the Ordinance.

Next day, on the 10th January, 1950, the Bombay Government appointed its nominees
as directors of the company. On the 7th February, 1950, these directors passed a
resolution to call up the uncalled capital and actually on the 22nd February, 1950, call
was made and the plaintiff was called upon to pay sum of Rs. 1,62,000. In these
circumstances, it cannot be held to be an unreasonable inference that one of the
purposes of the Ordinance was to raise further finance for the business of the company
so that it may start working. In any case, that was clearly the effect of the Ordinance
on the property of the preference shareholders. In these circumstances, it cannot be
said that on the rule of stare decision the plaintiff is out of court in view of that
decision.
35. In the case of Chiranjit Lal Chowdhuri MANU/SC/0009/1950 : [1950]1SCR869
the court was influenced considerably by the fact that a solitary shareholder was trying
to enforce the company's fundamental right in the exercise of its jurisdiction under
article 32 and that he could not do so unless his own fundamental right under
article 31(2) had been infringed. It was said that the complainant could not succeed
because somebody else was hurt and that it was an elementary principle of law that in
order to justify the grant of the extraordinary relief the complaint's need of it and the
absence of an adequate remedy at law must clearly appear.
Das J. also pointed out that article 32 can only be invoked for the purpose of
enforcement of the fundamental right and that article does not permit an application
merely for the purpose of agitating the competence of the appropriate legislature in
passing any particular enactment unless the enactment also infringes any of the
fundamental rights. The learned Judge concluded by saying "In exceptional cases where the company's property is injured by outsiders, a
shareholder may, under the English law, after making all endeavours to induce
the persons in charge of the affairs of the company to take steps, file a suit on
behalf of himself and other shareholders for redressing the wrong done to the
company, but that principle does not apply here for this is not a suit, nor has it
been shown that any attempt was made by the petitioner to induce the old
directors to take steps nor do these proceedings purport to have been taken by
the petitioner on behalf of himself and the other shareholders of the company."
Here it is quite clear that the present contention has been raised in a suit and not in an
application for a writ under article 32. That itself distinguishes Chiranjit Lal
Chowdhuri's case MANU/SC/0009/1950 : [1950]1SCR869 from the present. It is
further clear that all the necessary steps visualised by my learned brother have been
taken by the preference shareholders. A requisition for calling a meeting of the
shareholders of the company was made on 3rd, August, 1950, a meeting was actually
held on 28th September, 1950, and on subsequent days and on 5th November, 1950,
resolutions were passed that the call should not be made.
The resolutions were, however, vetoed by the Government. All the preference
shareholders are represented in this suit including some of the directors, the company
has been impleaded as a defendant and the old directors of the company have made

an application that they should be allowed to support the appeal. On these facts the
present
case
is
clearly
distinguishable
from
that
of
Chiranjit
Lal
Chowdhuri MANU/SC/0009/1950 : [1950]1SCR869 .
36. In any case, even if it is held that in view of the binding character of this court's
decision in Chiranjit Lal Chowdhuri's case MANU/SC/0009/1950 : [1950]1SCR869
the point is concluded, that the State has not taken possession of the shareholders
property, I am of the opinion that the plaintiff and the other preference shareholders
are entitled in this suit to attack the validity of the Ordinance on the basis of
infringement of the fundamental right of the company. The plaintiff has every right to
challenge the authority of the directors to make the call and to question their locus
standi before they can fix a liability on him. The directors seek to derive authority from
the Ordinance.
If, however, the Ordinance is void as against the company obviously they are not to be
regarded as the directors of the company and would thus have no authority to make
the call. It would indeed be a strange thing to hold that the plaintiff in a suit cannot
question the authority and the credentials of the person who is seeking to enforce a
demand against him. Unless the person making the demand makes out his authority
or his credentials to do so, he is not entitled to enforce the demand. In all cases where
a pecuniary or other similar liability is sought to be enforced by a person, it is always
open to the person challenging the liability to raise the question of the locus standi and
authority of the person making the demand. If that person claims in the status of an
agent of some other person, unless his appointment is validly made, he would have no
authority.
In this case the shareholders under the articles of association were under a contractual
liability to meet calls made by the directors of the company appointed by them. They
never agreed to meet a call made by persons appointed by an external authority and
in these circumstances they are entitled to question the authority of the person
making the call. The directors appointed by the Government can only invoke in aid the
authority given to them by the Ordinance and if the Ordinance is void as against the
company, they cannot be held to be directors of the company and would therefore
have no authority to make the call.
In my judgment, therefore, it is plain that the plaintiff is entitled to succeed on the
basis of the infringement of the company's fundamental right under article31(2),
because that is the only authority under which the directors have been brought in to
existence and are exercising powers by virtue of the provisions of the Ordinance. If
they are not the validity appointed agents of the company qua the company, they
cannot function as directors qua the shareholders.
37. The learned Attorney-General drew out attention to a number of cases for the
proposition that unless there was a direct infringement of the fundamental right of the
shareholders it was not open to them to take advantage of the breach of a
fundamental right of the company. In these wide terms I am unable to accede to this
proposition. In my opinion, the correct rule on this point has been stated in

Willoughby, at page 20, on the authority of the decision in Massachusetts v.

Mellon 262 U.S. 447., and is in these terms :
"We have no power per se to review and annual acts of Congress on the ground that
they are unconstitutional. That question may be considered only when the justification
for some direct injury suffered or threatened, presenting a justifiable issue, is made to
rest upon such an act. Then the power exercised is that of ascertaining and declaring the
law applicable to the controversy. It amounts to little more than the negative power to
disregard an unconstitutional enactment, which otherwise, would stand in the way of the
enforcement of the legal right. The party who invokes the power must be able to show,
not only that the statute is invalid, but that he has sustained or is immediately in danger
of sustaining some direct injury as the result of its enforcement, and not merely that he
suffers in some indefinite way in common with people generally. If a case of preventive
relief be prevented, the court enjoins, in effect, not the execution of the statute, but the
acts of the official, the statute notwithstanding."
The rule stated above has apposite application to this case. The plaintiff and the other
preference shareholders are in imminent danger of sustaining direct injury as a result
of the enforcement of this Ordinance, the direct injury being the amount of the call
that they are called upon to pay and the consequent forfeiture of their shares. Not only
would they lose their shares, if they do not meet the demand, but they would also
have to pay the amount of the call.
My brother Das elaborately dealt with this question in Chiranjit Lal's
case MANU/SC/0009/1950 : [1950]1SCR869 , and made reference to all the cases
that were cited by the Attorney-General on this subject, viz., McCabe v. Atchison 235
U.S. 151.; Jeffrey Manufacturing Co. v. Blagg 235 U.S. 571.; Hendrick v. Maryland 235
U.S. 610.; Newark Natural Gas & Fuel Co. v. The City of Newark 242 U.S. 403.; and in
which the rule laid down was that in order to justify the granting of extraordinary relief
the complainant's need of it and the absence of an adequate remedy at law must
clearly appear and that the complainant cannot succeed because some one else was
hurt.
He also made reference to the cases of Trucks v. Raich 239 U.S. 33., and Buchanan v.
Warley 245 U.S. 60.. There the court allowed the plea to be raised because in both
these cases the person raising it was directly affected. In the first of the two last
mentioned cases an Arizona Act of 1914 requiring employers employing more than five
workers to employ not less than eighty per cent native born citizens was challenged by
an alien who had been employed as a cook in a restaurant. That statute made a
violation of the Act by an employer punishable. The fact that the employment was at
will or that the employer and not the employee was subject to prosecution did not
prevent the employee from raising the question of constitutionality because the
statute, if enforced, would compel the employer to discharge the employee and
therefore, the employee was directly affected by the statute.
In the second case a city Ordinance prevented the occupation of a plot by a colored
person in a block where a majority of the residences were occupied by white persons.

A white man sold his property in such a block to a Negro under a contract which
provided that the purchaser should not be required to accept a deed unless he would
have a right, under the law of the city, to occupy the same as a residence. The vendor
used for specific performance and contended that the Ordinance was unconstitutional.
Although the alleged denial of constitutional rights involved only the rights of colored
persons and the vendor was a white person, yet it was held that the vendor as directly
affected, because the courts below, in view of the Ordinance, declined to enforce his
contract and thereby directly affected his right to sell his property.
Reference was also made to the case of Darnell v. The State of Indiana 226 U.S. 388..
That is the only case in which a shareholder was not heard to complain in his own
name when the Ordinance infringed the fundamental right of the company, his own
rights had not been infringed. In view of this decision my brother Das took the view
that Chiranjit Lal who was merely a shareholder and did not suffer any direct injury by
the result of the law was not entitled to complaint. That may very well have been the
correct view in the case of a fully paid up shareholder who had no further liability or
who was not likely to suffer in any manner by the enforcement of the Ordinance but
the situation of a partly paid up preference shareholder as in this case is quite different
and distinguishable and in my judgment the opposite rule to apply to the present case
is the one laid down in the cases of Trucks v. Raich 239 U.S. 33. and Buchanan v.
Warley 245 U.S. 60.. The result is that the plaintiff is entitled to challenge the
constitutionality of the Ordinance on the basis that it abridges the company's
fundamental right under article 31(2). The plaintiff is thus entitled to succeed in this
suit which should have been decreed in the terms in which it was laid.
38. I am further of the opinion that the question of the locus standi of the plaintiff to
raise the plea that the Ordinance being void against the company the directors had no
authority to make the call, is really of academic interest in this case because here the
company has been impleaded as a defendant. Its old directors have made an
application to this court supporting the case of the plaintiff on the ground that the
Ordinance is void as it infringes the company's fundamental right under article 31(2).
The learned Attorney-General when asked about this application said that it not having
been made in the High Court and having only been made at the last stage of the case
should not be entertained.
In my view, when the question in issue is one concerning constitutional rights, the
matter cannot be viewed purely from a technical angle and if in the interests of doing
substantial justice it is necessary to grant permission to the old directors to have their
say, technical considerations should not stand in the way of doing so. If the Ordinance
qua the company is void, I do not se why the old directors should be debarred from
saying so and if it is void qua the company, it can certainly not be sustained qua the
shareholders. Some of the directors who are preference shareholders are also
represented in the suit as well. In Chiranjit Lal's case[1959] S.C.R. 869. the question
of his locus standi was left open by the Chief Justice. This is what the learned Chief
Justice said :-

"The first question is whether one individual shareholder can, under the circumstances of
the case and particularly when one of the respondents is the company which opposes the
petition, challenge the validity of the Act on the ground that it is a piece of discriminatory
legislation ......... I do not think it is necessary to pronounce a definite opinion on the
first point."
In that case Patanjali Sastri J., as he then was, also did not pronounce any definite
opinion on the question so far as the shareholder's right to question the invasion of the
right to property of the company under article 31 was concerned. This is what the
learned Judge said :"Whatever validity the argument may have in relation to the petitioner's claim based on
the alleged invasion of his right of property under article 31, there can be little doubt
that, so far as his claim based on the contravention of article 14 is concerned, the
petitioner is entitled to relief in his own right."
The learned Judge did not offer any opinion in the other questions. Mukherjea J.
decided the question on grounds somewhat different from that taken by Fazl Ali J. This
what the learned Judge said :"A discussion of the fundamental rights of the company as such would be outside the
purview of our enquiry. It is settled law that in order to redress a wrong done to the
company, the action should prima facie be brought by the company itself. If cannot be
said that this course is not possible in the circumstances of the present case. As the law
is alleged to be unconstitutional, it is open to the old directors of the company who have
been ousted from their position by reason of the enactment to maintain that they are
directors still in the eye of law, and on that footing the majority of shareholders can also
assert the rights of the company as such. None of them, however, have come forward to
institute any proceeding on behalf of the company. Neither in form nor in substance does
the present application purport to be one made by the company itself. Indeed, the
company is one of the respondents, and opposes the petition."
Even on the basis of this reasoning the situation of the present plaintiff, as already
explained, is quite different and so is that of the company. In these circumstances it
cannot be said that the decision given in Chiranjit Lal's case MANU/SC/0009/1950 :
[1950]1SCR869 is binding on this point, as even the judgments of the Judges forming
the majority did not speak with the same voice.
39. For the reasons given above I would allow this appeal, set aside the judgment of
the High Court and decree the plaintiff's suit with costs. It is not necessary to give any
decision on issue 2 in view of the decision reached above, viz., whether the law is void
because it infringes the fundamental rights under article 14and 19.
Sudhi Ranjan Das, J.
40. I agree that this appeal should be allowed but I prefer to rest my decision on the
grounds and reasoning set forth in detail in my judgment in Appeal No. 107 of 1952

[The State of West

[1954]1SCR587 .

Bengal

v. Subodh

Gopal

Bose

MANU/SC/0018/1953

41. This is an appeal by the plaintiff in a suit filed in the Bombay High Court on behalf
of himself and other preference shareholders of the respondent company praying for a
declaration that the power given to the defendants respondents 2 to 8 who had been
appointed directors under the Sholapur Spinning and Weaving Company (Emergency
Provisions) Ordinance II of 1950 (hereinafter referred to as the said Ordinance) to
make a call and the resolution passed by the defendants respondents 2 to 6 on the 7th
February, 1950, for making a call of Rs. 50 per each preference share are illegal, ultra
vires, void and inoperative in law. The plaintiff-appellant is the registered holder of
3,244 preference shares of the respondent company of the face value of Rs. 100 per
share out of which only Rs. 50 had been paid up and consequently if the call has been
duly made, he will have to pay Rs. 1,62,200 in respect of his holding.
The plaintiff appellant resists the payment of the call on the ground, inter alia, that the
said Ordinance is illegal, ultra vires and invalid under the Provisions of the Government
of India Act, 1953, and/or the Constitution of India.
No oral evidence was adduced on either side. The matters in issue were argued as
questions of law governed by the Constitution. The contention was that the Ordinance
was inconsistent with or in derogation of the fundamental rights guaranteed by the
Constitution. The suit was dismissed by the trial court and that dismissal was affirmed
by the appeal court. The plaintiff has now come up on appeal before us after having
obtained a certificate under article 132(1) of the Constitution from the High Court.
42. The material facts leading up to the institution of the suit and the terms of the
impugned Ordinance have been set out in detail in the judgments delivered by this
court in the case of Chiranjitlal Chowdhuri v. The Union of India MANU/SC/0009/1950
: [1950]1SCR869 where this very Ordinance and the Act which replaced it were
challenged as unconstitutional and also in the judgment just delivered and it is not
necessary for me to recapitulate the same. The determination of the matters in issue
depends on the correct interpretation of article 19(1)(f) read with article 19(5),
article 31 and article 14 of the Constitution.
43. My view about the correlation between article 19(1)(f) read with article 19(5) and
article 31 and the true meaning and the respective scope and effect of clauses (1) and
(2) of article 31 have been set forth in detail in my judgment in Chiranjitlal's
case MANU/SC/0009/1950 : [1950]1SCR869 and have been more fully explained in
my judgment in Appeal No. 107 of 1952 [The State of West Bengal v. Subodh Gopal
Bose and others MANU/SC/0018/1953 : [1954]1SCR587 and no reiteration of them
is called for. In the light of the conclusions reached and the reasons in support thereof
given by me in those judgments I proceed to examine the contentions advanced by
the appellant.
44. The appellant seeks to question the validity of the Ordinance on the ground that it
infringes the fundamental rights of (a) the company, (b) the shareholders, (c) the

managing agents, (d) the directors elected by the shareholders and (e) persons having
contracts with the company. The first thing to consider is whether he can raise the
question of constitutionality of the Ordinance founded on the breach of the
fundamental rights of anybody other than himself.
45. The above matter was agitated in Chiranjitlal's case MANU/SC/0009/1950 :
[1950]1SCR869 . There Chiranjitlal Chowdhuri, who was the holder of one fully paid
up ordinary share, applied to this court under 32 challenging the validity of this very
Ordinance which is now questioned before us and the Act which eventually replaced it.
One of the grounds of attack was that the Ordinance had infringed the fundamental
rights of the company under article 19(1)(f) and article31 in that it dismissed the
managing agents and the directors and authorised the State to appoint new directors
and authorised the directors so appointed under the Ordinance to take possession of
the company's assets without payment of any compensation.
On the point now under consideration Mukherjea J. expressed himself thus, at page
898 :
"An incorporated company, therefore, can come up to this court for enforcement of its
fundamental rights and so may the individual shareholders to enforce their own; but it
would not be open to an individual shareholder to complain of an Act which affects the
fundamental rights of the company except to the extent that it constitutes an infraction
of his own rights as well. This follows logically from the rule of law that a corporation has
a distinct legal personality of its own with rights and capacities, duties and obligations
separate from those of its individual members. As the rights are different and inhere in
different legal entities, it is not competent to one person to seek to enforce the rights of
another except where the law permits him to do so. A well known illustration of such
exception is furnished by the procedure that is sanctioned in and application for a writ of
habeas corpus."
And again at page 899 :"The rights that could be enforced under article 32 must ordinarily be the rights of the
petitioner himself who complains of infraction of such rights and approaches the court for
relief. This being the position, proper subject of our investigation would be what rights, if
any, of the petitioner as a shareholder of the company have been violated by the
impugned legislation. A discussion of the fundamental rights of the company as such
would be outside the purview of our enquiry."
At pages 904-909 the learned Judge discussed the question whether the impugned law
and infringed any fundamental rights of the shareholders under article31(2) or
article 19(1)(f) and answered it in the negative. Kania C.J. agreed with the line of
reasoning and the conclusion reached by Mukherjea J. on this point. Fazl Ali J. at page
876 referred to a passage in the judgment of Hughes J. in McCabe v. Atchison 235
U.S. 151. and expressly held that no one except those whose rights were directly
affected by a law could raise the question of the constitutionality of that law. His
Lordship said :-

"The company and the shareholders are in law separate entities, and if the allegation is
made that any property belonging to the company has been taken possession of without
compensation or the right enjoyed by the company under article 19(1)(f) has been
infringed, it would be for the company to come forward to assert or vindicate its own
rights and not for any individual shareholders to do so."
As to the question whether the petitioner had succeeded in showing that there had
been and infringement of his own rights as a shareholder under articles 31 and19(1)
(f) his Lordship agreed with and adopted the conclusions arrived at by Mukherjea J.
without committing himself to the acceptance of all the reasoning of Mukherjea J. My
Lord the present Chief Justice rested his decision on article 14 and came to the
conclusion that the petitioner as a shareholder had been discriminated against. Having
thus decided the question arising under article 14, he did not think it necessary to
express any opinion on the questions raised under articles 19 and 31.
At pages 927-930 I dealt with the question whether the shareholder could impugn the
constitutionality of the law on the ground that the fundamental right of the company
had been infringed. After referring to several decisions of the Supreme Court of
America I came to the following conclusion at page 930 :
"In my opinion, although a shareholder may, in a sense, be interested to see that the
company of which he is a shareholder is not deprived of its property he cannot, as held
in Darnell v. Indiana 226 U.S. 388 be heard to complain in his own name and on his own
behalf, of the infringement of the fundamental right to property of the company, for, in
law, his own right to property has not been infringed as he is not the owner of the
company's properties."
In the premises, I think it is quite clear that the majority of the members of the Bench
which heard Chiranjitlal's case MANU/SC/0009/1950 : [1950]1SCR869 held that the
petitioner was not entitled to question the constitutionality of the Ordinance and the
Act on the ground that the fundamental rights of the company under articles 19(1)
(f) and 31 had been infringed. He had, therefore, to rely on the plea of infringement of
his own fundamental rights. The majority of the court held that there had been no
infringement of his rights as a shareholder under article 19(1)(f) or article 31 and that
the petitioner consequently had to fall back on article 14 in order to support his plea of
the unconstitutionality of the Ordinance and the Act. Even here the majority of the
Bench took the view that the petitioner had not discharged the onus that was on him
of showing that in fact there had been any discrimination against him and other
shareholders of the company.
46. Learned Attorney-General submits that in so far as the challenge to the validity of
the law is, in the present case, founded on the infringement of the company's
fundamental
rights,
it
is
concluded
by
the
decision
in
Chiranjitlal's
case MANU/SC/0009/1950 : [1950]1SCR869 for the reasons adopted by the
majority in that case apply equally to the case now before us and the same conclusion
must be drawn, namely, that the present appellant, who is also a shareholder, cannot
be permitted to impugn the said Ordinance on the ground that it infringes the

fundamental rights of the company, or the managing agents or the directors or other
persons having contracts with the company.
It is, on the other hand, contended on behalf of the appellant that the present case is
distinguishable from Chiranjitlal's case MANU/SC/0009/1950 : [1950]1SCR869 in
that the question here arises in a regular suit and not on an application under
article 32 for the enforcement of fundamental rights. I do not think that this, by itself,
is a substantial ground of distinction at all. I cannot see how the mere form of the
proceeding can affect the question. The true principle being that only a person who is
directly affected by a law can challenge the validity of that law and that a person
whose own right or interest has not been violated or threatened cannot impugn the
law on the ground that somebody else's right has been infringed, the same principle
must prevail irrespective of the form of the proceeding in which the question of
constitutionality is raised.
47. Learned counsel for the appellant, however, urges that although on a parity of
reasoning there has been no infringement of the fundamental right of the preference
shareholders under article 19(1)(f) or article 31(2), the impugned law, if it stands,
certainly subjects the preference shareholders of the risk of being called upon to pay
the amount of capital remaining unpaid on their respective shareholding. Indeed, the
directors appointed under the said Ordinance have made a call for the payment of Rs.
50 on each preference share and the plaintiff appellant alone will have to pay Rs.
1,62,200 on his shares. There was no such liability on the petitioner in Chiranjitlal's
case MANU/SC/0009/1950 : [1950]1SCR869 for he was the holder of only one fully
paid up ordinary share. The impugned Ordinance, therefore, directly affects the
preference shareholders by imposing on them this liability, or the risk of it, and gives
them a sufficient interest to challenge the validity of the Ordinance.
It is quite true, as submitted by the learned Attorney-General, that the fact of the
property of the company or the managing agents, or the directors or the other persons
having contracts with the company having been taken possession of by the State
through the directors appointed by the State under the Ordinance has on relation to or
bearing on the imposition on the preference shareholders of the liability to pay the
call, for the directors were not obliged to make the call because they had taken
possession of the property of the company or the other persons and that this
imposition of liability or risk cannot, therefore, be said to be the direct or even indirect
result of the State having through the directors appointed under the ordinance taken
possession of the property of the company or the other persons.
It is then urged by him that being so, the preference shareholders cannot be allowed
to complain of the infringement of the rights of the company or of the other persons
which does not concern or affect them. This argument, however, overlooks the
purpose and scope of the suit filed by the appellant for himself and all other
preference shareholders. The appellant is disputing his liability to pay the call made by
the directors appointed under the Ordinance. He is therefore, entitled to show that the
directors who have made the call are not competent to do so. It is open to him to

allege and prove, if he can, that the gentlemen who have purported to make the call
are not competent to do so because they are not the directors of the company.
Take the case of a company which is not governed by this Ordinance. If a call is made
on the shareholders of such a company, it is certainly open to a shareholders to resist
the payment of the call by proving, if he can, that the persons who have purported to
make the call are not the directors of the company. This he may do by showing that
those persons have not the requisite qualifications or have not been duly elected.
Likewise, on a parity of reasoning, the appellant as a preference shareholder in the
respondent company is entitled to show, if he can, that the persons who have made
the call are really not the directors of the company. Certainly he can show that the
Ordinance under which these persons have been appointed was beyond the legislative
competency of the authority which made it or that the Ordinance had not been duly
promulgated. If he can, with a view to destroy the locus standi of the persons who
have made the call, arise the question of the invalidity of the Ordinance on the
grounds I have just mentioned, I can see no valid reason why, for the self same
purpose, he should not be permitted to challenge the validity of the Ordinance on the
ground of its unconstitutionality for the breach of the fundamental rights of the
company or of other persons. He may not be interested in or concerned with the facts
which constitute the unconstitutionality, e.g., the taking of possession of the property
of the company or of the persons but he is certainly interested in getting out of the law
so as to destroy the very foundation of the status of the persons who have made the
call and thereby repel the attack on him and avoid his own liability.
In Chiranjit Lal's case MANU/SC/0009/1950 : [1950]1SCR869 the petitioner was
held to suffered no loss of his own fundamental right as a shareholder and, therefore,
by raising the question of unconstitutionality of the Ordinance on the ground of the
breach of the fundamental rights of the company, or of the other persons he was really
fighting the battle of the company and the other persons and not of his own. Here the
position is different. Here the law had made the imposition of a liability on him and
other preference shareholders possible and he is seeking to resist that liability and as
in the premises he is directly affected by the statute he has sufficient interest to
challenge its validity. If as between the company or the other persons and these
persons who, purporting to act as directors, have made the call the law in
unconstitutional for breach of the former's fundamental rights then it follows that
these persons are not, in the eye of the law, the directors of the company at all and if
they are not in law the directors of the company, surely they cannot arrogate to
themselves the right to exercise any of the powers of the directors of the company and
to make any call.
If the said Ordinance stands, the directors appointed there under will have authority to
make the call which they have done and the appellant's liability to pay it will stand
good. Therefore, the appellant as a preference shareholder is directly affected by the
statute and this circumstances, in my opinion, distinguishes this case from
Chiranjitlal's case MANU/SC/0009/1950 : [1950]1SCR869 and it must be held that,
in the circumstances of this case, the appellant, who is a preference shareholder and

as such liable to pay the call, is entitled to challenge the Ordinance which dismissed
the directors elected by the shareholders, authorised the appointment of directors by
the State and made it possible for the directors so appointed to make the call and
thereby impose a liability on all preference shareholders including the appellant.
48. On the hypothesis that, with a view to resist his own liability to pay the call, it is
open to the appellant to impugn the Ordinance and the Act which has replaced it and
for that purpose to call in aid the infringement of the fundamental right under
article 31(2) of the company or of the other persons mentioned above, it has yet to be
shown that there has in fact been such infringement. Two questions will have to be
considered and decided, namely, (1) whether the impugned law has authorised the
taking of possession or acquisition of any property and (2) whether what has been
taken possession of or acquired is 'property' within the meaning of article 31(2).
Taking the second question first, there cannot be any doubt that the mills,
machineries, stocks etc., of the respondent company are "property" within the
meaning of article 19 and 31. A contract or agreement which a person may have with
the company and which may be canceled by the directors in exercise of powers under
the Ordinance will undoubtedly be "property" within the meaning of the two articles.
There may be some argument as to whether the office of managing agents or of the
directors, though each of such offices carries substantial remuneration, can be said to
be "property" which, by itself, can be acquired or taken possession of or disposed of. I
need not dilate on this further, for the machinery etc., of the company and the benefits
of agreements of persons having contracts with the company are certainly "property"
within those articles and if those have been taken possession of or acquired that will
be quite sufficient for the plaintiff appellant to sustain his challenge to the
constitutionality of the impugned law, whether or no the office of the managing agents
or of the directors is "property" or has been taken possession of or acquired.
49. The next question is whether the impugned law has authorised the taking of
possession or acquisition of the property of the shareholders, or of the company. It
may be mentioned at the outset that the impugned law has not authorised any
acquisition of any property in the sense of divesting the shareholders or the company
of any property and vesting that property in the State or its nominee. In other words,
there has been no transfer of title, voluntarily or by operation of law. It is, therefore,
necessary to enquire and ascertain whether the Ordinance or the Act which replaced it
has authorised the taking of possession of any property of the shareholders or of the
company.
50. As regards the property of the shareholders the position is the same as in
Chiranjitlal's case MANU/SC/0009/1950 : [1950]1SCR869 . The shares still belong to
them. They can hold them or dispose of them. If any dividend is declared they will get
them. If there is any winding up and if after payment of all liabilities there remains any
surplus then they will participate in that surplus. It is true that from a practical point of
view it may be difficult for the shareholders, if they desire to sell the shares, to find a
purchaser who will be willing to buy shares in a company which is governed by an
Ordinance of this kind but, nevertheless, it cannot be said that the State has taken

possession of the shares in the sense in which

article 31(2) has
been
explained
by
me
in
case MANU/SC/0018/1953 : [1954]1SCR587 .

that expression used in

Subodh
Gopal
Bose's

It is said, as was done in Chiranjitlal's case MANU/SC/0009/1950 : [1950]1SCR869 ,

that certain valuable rights of the shareholders, e.g., the right of voting, the right to
elect directors and the right to apply for the winding up of the company have been
taken away. In the first place, it is doubtful if any of these right can be called
"property" within the meaning of article 31(2) for, by itself and apart from the shares,
none of them can be acquired or disposed of. In the next place, the State has not
taken possession of these rights as explained by Mukherjea J. in Chiranjitlal's
case MANU/SC/0009/1950 : [1950]1SCR869 at pages 904-906 and by me at page
923-924. Therefore, there has been no infringement of the shareholders right to
property under article 31(2).
What has happened is that these rights which are only incidents of the ownership of
the shares have been suspended or kept in abeyance and if this may be regarded as
amounting to imposing restrictions on the exercise of the rights of ownership of the
shares it may possibly be justified as an exercise in any emergency of the State's
police power under clause (5) of article 19 by imposing by law reasonable restrictions
in the interests of the general public so as to secure the supply of an essential
commodity and to prevent unemployment.
51. As regards the property of the company also there has been no transfer of title to
any such property, voluntary or involuntary, from the company to the State or its
nominees and, therefore, no question arises of any property of the company having
been "acquired". The question remains whether any property of the company has been
"taken possession of" by the State within the meaning of article 31(2) as explained by
me in Subodh Gopal Bose's case MANU/SC/0018/1953 : [1954]1SCR587 . In
Chiranjitlal's case MANU/SC/0009/1950 : [1950]1SCR869 said :
"Assuming that this State management was imposed in the interests of the
shareholders themselves and that the statutory directors are acting as the
agents of the company, the possession of the statutory directors could not, it is
argued, be regarded in law as possession of the company so long as they are
bound to act in obedience to the dictates of the Central Government and not of
the company itself in the administration of its affairs. Possession of an agent, it
is said, cannot judicially be the possession of the principal, if the agent is to act
not according to the commands or dictates of the principal, but under the
direction of an exterior authority.
There can be no doubt that there is force in this contention, but as I have
indicated at the outset, we are not concerned in this case with the larger
question as to how far the inter-position of this statutory management and
control amounts to taking possession of the property and assets belonging to
the company".

It is fairly clear that his Lordship was inclined to the view that the company's
properties had been taken possession of although he did not categorically and
explicitly say so. I dealt with the matter at pages 926-927. After pointing out that the
possession of directors who were not obedient to or amenable to the company or its
shareholders and are not liable to be dismissed or discharged by the company cannot,
in the eye of the law, be regarded as the possession of the company I said :
"In this view of the matter there is great force in the argument that the property of the
company has been taken possession of by the State through directors who have been
appointed by the State in exercise of the powers conferred by the Ordinance and the Act
and who are under the direction and control of the State and this has been done without
payment of any compensation."
Then after quoting a passage from the judgment of Holmes J. in Pennsylvania Coal
Company v. Mahon 260 U.S. 399. I concluded :
"Here, therefore, it may well be argued that the property of the company having been
taken possession of by the State in exercise of powers conferred by a law which does not
provide for payment of any compensation, the fundamental right of the company has, in
the eye of the law, been infringed."
It is quite clear that although I used the words "there is great force in the argument"
and "it may well be argued", the then inclination of my mind was definitely that the
property of the company had been taken possession of as contemplated by
article 31(2). My observations were much more definite then those of Mukherjea J.
52. Learned Attorney-General contends that the taking of possession of the property of
the company that has taken place in this case is clearly not an exercise of the power of
eminent domain within article 31(2) but constitutes and exercise of police power under
article 31(1). Here, according to him, the State has not taken possession of the
company's property on its own account to implement a public purpose such as is
contemplated by article 31(2) but the State has taken possession of the company's
property to prevent the company from using its own property to the detriment of the
interests of the public and to do for the company what the company should itself have
done.
In order to determine to which category this taking of possession falls, it is necessary
to keep in mind the circumstances in which the Ordinance and the Act were passed
and to ascertain from their language their immediate purpose and ultimate aim and to
consider their effect on the rights of the company. It should be remembered that the
Ordinance of 1950 was promulgated on the 9th January, 1950. The Preamble to the
Ordinance recited as follows :
"Whereas on account of mismanagement and neglect a situation has arisen in the affairs
of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially
affected the production of an essential commodity and has caused serious
unemployment amongst a certain section of the community."

Then came the Act on the 10th April, 1950. There is no preamble to the Act. Although
the short title of the Act contains a reference in emergency provisions the full title of
the Act is as follows :
An Act to make special provision for the proper management and administration for the
Sholapur Spinning and Weaving Company Limited.
There is no suggestion either in this long title or in the body of the Act except in
section 12 that the Act is intended only to be a temporary emergency measure. The
object of the Ordinance was stated to be to provide employment to a large number of
workmen and to keep up the production of an essential commodity. There is no doubt
that section 12 of the Act provides that the property of the company and the
management and administration of its affairs would be restored to the company or its
directors elected by the shareholders but that is left entirely to the unfettered
discretion of the Government. The provisions of the Ordinance and the Act are drastic
in the extreme. The managing agents and the elected directors have been dismissed
and new directors have been appointed by the State. So far as the company is
concerned it has been completely denuded of the possession of its property. All that is
left to the company is its bare legal title. The carrying on of a business demands many
personal qualities and considerable business acumen and is much more complicated
than collecting the rents of the estate of a disqualified proprietor.
The impugned law has thrust upon the company a board of directors in whose
business capacity the company and its shareholders may have no confidence and over
whom the company has certainly no vestige of control or authority and who are not
answerable to them at all. Although in outward from the directors are the officers of
the company and are bound to act under the articles of association in so far as they
are not contrary to or inconsistent with the Ordinance and the Act, nevertheless, in
effect and in substance, they are the creatures of the State and are answerable to the
State and it is the State that has through these directors of its choice taken possession
of the undertaking of the company and has been carrying on an experiment in State
management of business at the risk and expenses of the company and the
shareholders.
Indeed we are told that under such State management which is going on for pretty
nearly four years the business has been running at a loss. At any rate no profit has
been made or distributed as and by way of dividend during this long period - a said
commentary on the efficacy of State management. And nobody know how long this
state of affairs will continue, for the Act does not prescribe any definite time limit to
this hazardous experiment. It is, in the premises, impossible to uphold this law as an
instance of the exercise of the State's police power as an emergency measure. It has
far overstepped the limits of police power and is, in substance, nothing short of
expropriation by way of the exercise of the power of eminent domain and as the law
had not provided for any compensation it must be held to offend the provisions of
article 31(2).

53. The last contention of the appellant is that the Ordinance is unconstitutional and
void in that it infringes the fundamental rights of the shareholders under article 14. In
Chiranjitlal's case MANU/SC/0009/1950 : [1950]1SCR869 my Lord the present Chief
Justice and I were of the opinion that the Ordinance and the Act did not proceed on
any rational basis of classification and that this company and its shareholders had
been arbitrarily singled out for discriminatory treatment and that as equality before
the law was denied to this company and its shareholders the Ordinance and the Act
offended the equal protection clause of our Constitution. The majority of the Bench,
however, took the view that, there being a presumption in favour of the
constitutionality of the law and that the onus of displacing that presumption being on
him who impugns the law, the petitioner in that case had not discharged that onus and
that, therefore, he could not complain of discrimination. In the present case there is
nothing more than what there was before the court in Chiranjitlal's
case MANU/SC/0009/1950 : [1950]1SCR869 . Indeed, the question of discrimination
does not appear to have been argued before the trial court and the appeal court has
rejected it by saying that the plaintiff had not shown that there were other companies
which were guilty of the same conduct but had not been similarly dealt with. Learned
Attorney-General has submitted that this court is not bound by its previous decision
and has pressed us to go behind the majority decision. Accepting that this court is not
bound by its own decisions and may reverse a previous decision especially on
constitutional questions the court will surely be slow to do so unless such previous
decision appears to be obviously erroneous. But in view of the conclusion I have
already arrived at on the other point I do not feel called upon to pursue this point of
discrimination any further. In my judgment, therefore, this appeal should be allowed
and the plaintiff's suit should be decreed. The Union of India must pay the plaintiff his
costs throughout.
Vivian Bose, J.
54. I agreed with my brother Mahajan that the impugned Ordinance and Act offend
article 31(2) of the Constitution and so are void. But I prefer to rest my decision on
simpler foundations. With the utmost respect I deprecate, as I have done in previous
cases, the use of doubtful words like "police power," "social control", "eminent domain"
and the like. I say doubtful, not because they are devoid meaning but because they
have different shares of meaning in different countries and because they represent
powers which spring from widely differing sources.
In my opinion, it is wrong to assume that these powers are inherent in the State in
India and then to see how far the Constitution regulates and fits in with them. We
have to interpret the plain provisions of the Constitution and it is for jurists and
students of law, not for Judges to see whether our Constitution also provides for these
powers and it is for them to determine whether the shape which they take in India
resemble any of the varying forms which they assume in other countries.
55. Article 19(1)(f) confers a certain fundamental freedom on all citizens of India,
namely, the freedom to acquire, hold and dispose of property. Article 31(1) is a sort of
corollary, namely that after the property has been acquired it cannot be taken away

save by authority of law. Article 31 is wider than article 19 because it applies to

everyone and is not restricted to citizens. But what article 19(1)(f) means is that
whereas a law can be passed to prevent persons who are not citizens of India from
acquiring and holding property in this country on such restrictions can be placed on
citizens. But in the absence of such a law non-citizens can also acquire property in
India and if they do then they cannot be deprived of it any more than citizens, save by
authority of law.
56. I have put the matter broadly and ignored for the moment the restrictions
imposed by article 19(5). The rights conferred by article 19(1)(f) are not unfettered
and the State can impose restrictions provided they are (1) reasonable and (2) are in
the interests of either the general public or for the protection of the interests of any
Scheduled Tribe. But we are not concerned with article 19 in this case because no one
has prevented either the company or the plaintiff from acquiring and holding property.
They actually did acquire property and they held it and nobody stopped them. The
complaint is that they are now being deprived, in a manner not allowed by the
Constitution, of the property which they were lawful permitted to acquire and hold.
That concerns article 31.
57. Now article 31(1) says that no one shall be deprived of property save by authority
of law. That to my mind is straightforward and simple. It means that no one's property
can be taken away arbitrarily or by executive action. There must be legal sanction for
every act of deprivation.
58. Now an Act of the legislature is legal sanction, therefore if the rest of the article
was not there a man could be deprived of his property by legislative enactment though
not by executive action. But that brings in article 31(2). Restrictions are there placed
even on the legislature. Unless the Act provides for compensation and either fixes the
amount or specifies the principles on which, and the manner in which, it is to be
determined it cannot be validly enacted. The only exceptions are those set out in
clause (5). Therefore, to my mind, the simple question in this case is, do the
impugned Ordinance and Act fall foul of article31(2) read with clause (5) ? All we have
to do is to examine these provisions.
59. We start with the world "property". Are the plaintiff's "interests" in this company
"property" within the meaning of this clause ? Property includes "any interest" in "any
commercial or industrial undertaking." It also includes any interest in "any company
owning" any interest in any commercial or industrial undertaking. That is how I read
this clumsily drafted clause. The company here certainly has an interest in a
commercial and industrial undertaking and the plaintiff has an undoubted interest in
the company. He also has a direct interest in the undertaking that the company runs
because, as a preference shareholders, he is a member of the company and would, on
liquidation, be entitled to share in the distribution of its assets.
60. Next, have these interests been "taken possession of" or "acquired" ? Here again I
have no doubt. In my judgment, the provisions in the Constitution touching
fundamental rights must be construed broadly and liberally in favour of those on

whom the rights have been conferred. But in any case, in this instance, these words
have to do read along with the word "deprived" in clause (1). In my opinion, the
possession and acquisition referred to in clause (2) mean the sort of "possession" and
"acquisition" that amounts to "deprivation" within the meaning of clause (1). No hard
and fast rule can be laid down. Each case must depend on its own facts. But is there is
substantial deprivation, then clause (2) is, in my judgment, attracted. By substantial
deprivation I mean the sort of deprivation that substantially robs a man of those
attributes of enjoyment which normally accompany rights to, or an interest in,
property. The form is unessential. It is the substance that we must seek.
61-70. Has that happened here ? Of course, it has. The plaintiff and the company have
been left with the mere husk of title and not only has every form of enjoyment which
normally accompanies an interest in this kind of property been taken away from them
but to add insult to injury the plaintiff has also been called upon to pay substantial
sums of money; and for what ? - not in compliance with any engagement into which
he has entered, not in fulfillment of any duty or obligation which he has incurred, not
in furtherance of his interests of which he is the best judge, but blankly unashamedly
because the furtherance of his interests affects "the production of an essential
commodity" and has caused "serious unemployment amongst a certain section of the
community." If that is not "deprivation" it is difficult to know what is. One of the
privileges of a democracy of free men is the right to mismanage one's own affairs
within the confines of the law; and if A can mismanage his concerns in a particular
way, so can B, C and D. The production of essential commodities and the employment
of labour are matters for the State and statutory bodies to handle. They have the
right, when the law so permits it, to take over this responsibility when the public
interests so demand but if by doing so they deprive private individuals and nonstatutory bodies of their interests in property in the sense explained above they must
pay compensation. They cannot evade their own duties by fathering their obligations
on others who are not responsible for carrying on the affairs of the State. My brother
Mahajan has dealt with this at length and there is no need for me to add to what he
has said.
71. The only other point I need consider is the applicability of clause (5) of article 31.
The exceptions to clauses (1) and (2) lie there. I am clear that none of the exceptions
set out there apply. The impugned Ordinance and Act have not been made for the
promotion of public health nor to prevent danger to life and property.
72. In my opinion, Chiranjitlal's case [1950] S.C.R. 809. is distinguishable. I do not
think it is a bar here. My brother Mahajan has explained this at length and as I agree
with him I need say no more. I would therefore also, in agreement with my learned
brother, allow the appeal and decree the plaintiff's claim with costs.
Ghulam Hasan, J.
73. I have had the advantage of perusing the judgment of my learned brother Mr.
Justice Mahajan and, I agree with his conclusion that the appeal should be allowed and
the plaintiff's suit decreed with costs. I would like to add a few words.

74. This appeal raises the question of the constitutional validity of the Sholapur
Spinning and Weaving Company (Emergency Provisions) Ordinance II of 1950,
subsequently replaced by Act XXVIII of 1950, which reproduced substantially the same
provisions. This question arose originally upon a petition under article 32of the
Constitution filed by one Chiranjit Lal Chowdhuri and ordinary shareholder of the
company, challenging the Act as being in violation of his fundamental rights under
article 14, 19 and 31 of the Constitution. By a majority of 3 : 2 it was held that the
petitioner had failed to displace the presumption of the constitutionality of the Act or
that there had been any abridgment of his fundamental rights. The minority declared
the impugned Act as void as it violated the fundamental rights of the petitioner under
article 14 of the Constitution.
75. My learned brother has distinguished, and if I may say so with respect
successfully,
the
decision
in
Chiranjit
Lal's
case MANU/SC/0009/1950 :
[1950]1SCR869 and has explained the ratio decidendi of the majority view in that case
and I entirely agree with him. That decision does not, in my opinion, conclude the
matter so far as the present case is concerned and no question of invoking the
principle of state decision arises.
76. The question which we are now invited to consider was raised by the appellant, a
preference shareholder holding 3,244 preference shares of the face value of Rs. 100
out of which he had paid up Rs. 50 per share. He was called upon by the statutory
directors nominated by the Government under the impugned Act to pay Rs. 1,62,000
as the balance of the amount of the call. Thereupon he filed the suit in a
representative capacity on behalf of himself an other preference shareholders
challenging the validity of the Act. The suit was dismissed by the trial Judge whose
decision was affirmed on appeal by the Division Bench of the Bombay High Court.
77. My learned brother has analysed in detail the relevant provisions of the impugned
Act and I have no hesitation in agreeing with him that the Act in substance robs the
company of every vestige of right except what has been laconically called the husk of
title. I agree, therefore, that the impugned Act oversteps the constitutional limits of
the power conferred upon the State and offends against the provisions of
article 31 and must, therefore, be held void.
78. Article 31 finds a place in Part III of the Constitution which deals with fundamental
rights. It is headed "Right to Property". Upon a simple and straightforward
construction of its language and the context in which it stands and unhampered by the
provisions of the American Constitution the article confers upon every person, whether
a citizen or not, a fundamental right of protection of property against encroachment by
the executive without the authority of law and against the legislature unless the law
passed by it satisfies the two essential conditions laid down in (2) that there must be
public purpose for taking away private property and that the law must provide for
compensation and either fix the amount of such compensation or specify the principles
on which and the manner in which the compensation shall be determined and given.
Article 31(1) embodies a categorical declaration proclaiming the right of property and
equally categorically prohibits the State from depriving the owner of that property by

an executive act or without being backed by the authority of law. The intention
underlying the article being the protection of property against invasion by the State,
both parts (1) and (2) of article 31 should be read together so as to harmonize with
that intention. Article31, in my opinion, is wider than article 19(1)(f) which confers
upon a citizen only the right to acquire, hold and dispose of property and is different in
scope and content. Article 31 is self-contained and (1) refers to deprivation of property
in general. Acquisition or taking possession in (2) are different modes of deprivation
and are comprehensive enough to include all forms of taking away rights of property.
Having regard to the setting in which article 31 is placed, the word 'property' used in
the article must be construed in the widest sense as connoting a bundle of rights
exercisable by the owner in respect thereof and embracing within its purview both
corporeal and incorporeal rights. The word 'property' is not defined in the Constitution
and there is no good reason to restrict its meaning. Whether the facts in a given case
amount to deprivation of property within the meaning of article 31 will depend upon
the circumstances of each case and it is not possible, in the nature of things, to lay
down any inflexible test which may be universally applicable. When it can be shown
that the statute substantially interferes with the right of enjoyment of property, it will,
in my opinion, be hit by article 31(2) and declared void, unless compensation is
provided.
79. I am not prepared to subscribe to the proposition that article 31(1) stands by itself
and should be read separately from (2) and I cannot attribute an intention to our
Parliament to deprive a person of his property merely by passing an Act. The two parts
of the article form an integral whole and cannot be disassociated from each other.
80. The result is that I agree with the order proposed by my learned brother.

Equivalent

Citation: AIR1958SC578,

(1961)ILLJ339SC,

(1964)ILLJ9SC,

[1959]1SCR12
IN THE SUPREME COURT OF INDIA
Decided On: 19.03.1958
Appellants:Express Newspapers (Private) Ltd. and Anr.
Vs.
Respondent:The Union of India (UOI) and Ors.
Hon'ble
Judges/Coram:
B.P. Sinha, J.L. Kapur, N.H. Bhagwati, P.B. Gajendragadkar and Syed Jaffer Imam, JJ.
Subject: Media and Communication
Subject: Service
Catch Words
Mentioned IN
Acts/Rules/Orders:
Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 Section 3(2), Working Journalists (Conditions of Service) and Miscellaneous Provisions
Act, 1955 - Section 4, Working Journalists (Conditions of Service) and Miscellaneous
Provisions Act, 1955 - Section 5(1), Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955 - Section 9(1), Working Journalists (Conditions of
Service) and Miscellaneous Provisions Act, 1955 - Section 11, Working Journalists
(Conditions of Service) and Miscellaneous Provisions Act, 1955 - Section 12, Working
Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 - Section
17, Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955
- Section 20(2); Constitution of India - Article 14, Constitution of India - Article
19(1), Constitution of India - Article 32
Cases
Crown Aluminium Works vs. Their Workmen MANU/SC/0082/1957

Referred:
; Nagendra Nath

Bora and Anr. vs. The Commissioner of Hills Division and Appeals, Assam and
Ors. MANU/SC/0101/1958 ; Romesh
Thappar
vs.
The
State
of
Madras MANU/SC/0006/1950 ; Brij
Bhushan
and
Anr. vs.
The
State
of
DelhiMANU/SC/0007/1950 ; State of Travancore-Cochin and Ors. vs. The Bombay Co.
Ltd. MANU/SC/0068/1952 ; The
State
of
Bombay
vs.
R.M.D.
ChamarbaugwalaMANU/SC/0019/1957 ; A.K.
Gopalan
vs.
The
State
of
Madras MANU/SC/0012/1950 ; Ram Singh and Ors. vs. The State of Delhi and
Anr. MANU/SC/0005/1951 ; Dwarkadas Shrinivas of Bombay vs. The Sholapur
Spinning & Weaving Co. Ltd. and Ors. MANU/SC/0019/1953 ; Chintaman Rao vs. The
State of Madhya Pradesh MANU/SC/0008/1950 ; Dwarka Prasad Laxmi Narain vs. The
State of Uttar Pradesh and Two Ors. MANU/SC/0030/1954 ; Ch. Tika Ramji and Ors.
etc. vs. The State of Uttar Pradesh and Ors. MANU/SC/0008/1956 ; State of Madras
vs. V.G. Row MANU/SC/0013/1952 ; Dr. N.B. Khare vs. The State of
DelhiMANU/SC/0004/1950 ; The State of West Bengal vs. Subodh Gopal Bose and
Ors. MANU/SC/0018/1953 ; Virendra
vs.
The
State
of
Punjab
and
Anr.MANU/SC/0023/1957 ; Aswini Kumar Ghosh and Anr. vs. Arabinda Bose and
Anr. MANU/SC/0022/1952 ; Provat Kumar Kar and Ors. vs. William Trevelyan Curties
Parkar MANU/WB/0035/1950 ; Thakur Raghubir Singh vs. Court of Wards, Ajmer and
Anr. MANU/SC/0012/1953 ; Saghir
Ahmad
vs.
The
State
of
U.P.
and
Ors. MANU/SC/0110/1954 ; Budhan Choudhry and Ors. vs. The State of
Bihar MANU/SC/0047/1954 ; Chiranjit Lal Chowdhuri vs. The Union of India (UOI)
and Ors. MANU/SC/0009/1950 ; The State of Bombay and Anr. vs. F.N.
Balsara MANU/SC/0009/1951 ; The State of West Bengal vs. Anwar Ali
SarkarMANU/SC/0033/1952 ; Kathi
Raning
Rawat
vs.
The
State
of
Saurashtra MANU/SC/0041/1952 ; Lachmandas Kewalram Ahuja and Anr. vs. The
State of BombayMANU/SC/0034/1952 ; Rizwan-ul-Hasan and Anr. vs. The State of
Uttar Pradesh MANU/SC/0021/1953 ; Habeeb Mohamed vs. The State of
HyderabadMANU/SC/0080/1953 ; Mohammad Yasin vs. The Town Area Committee,
Jalalabad and Anr. MANU/SC/0012/1952 ; Himmatlal Harilal Mehta vs. The State of
Madhya Pradesh and Ors. MANU/SC/0021/1954 ; Bidi Supply Co. vs. The Union of
India (UOI) and Ors. MANU/SC/0040/1956 ; Pandit Ram Narain vs. The State of Uttar
Pradesh and Ors. MANU/SC/0014/1956
Authorities
"Wages & the State" by E.M. Burns
Citing

Discussed
33
Mentioned
39

Referred:

Reference:

Case
Note:
Constitution - freedom of speech and expression - Article 19 of Constitution of
India and Working Journalists (Conditions of Service) and Miscellaneous
Provisions Act, 1955 - validity of Working Journalists Act under challenge Act was intended to regulate conditions of services of newspaper employees freedom of press implicit in Article 19 (1) (a) - press has no immunity from
General Laws like tax laws or labour laws - purpose of Act was to ameliorate
conditions of newspaper workmen - it did not affect fundamental right to
freedom of press directly though it might impose greater financial burden and
may result in closing down some newspaper - State competent to make laws
with retrospective effect - retrospectivity may be one of factors determining
reasonableness of laws - freedom of press includes freedom of employment
or non-employment of necessary means of exercising such rights - held,
impugned
law
valid.

Industry: Publishing & Printing

JUDGMENT
N.H. Bhagwati, J.
1. These petitions under Art. 32 of the Constitution raise the question as to the vires of
the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955
(45 of 1955), hereinafter referred to as "the Act" and the decision of the Wage Board
constituted there under As they raise common questions of law and fact they can be
dealt with under one common judgment.
2. In order to appreciate the rival contentions of the parties it will be helpful to trace
the history of the events which led to the enactment of the impugned Act.
3. The newspaper industry in India did not originally start as an industry, but started
as individual newspapers founded by leaders in the national, political, social and
economic fields. During the last half a century, however, it developed characteristics of
a profit making industry in which big industrialists invested money and combines
controlling several newspapers all over the country also became the special feature of
this development. The working journalists except for the comparatively large number
that were found concentrated in the big metropolitan cities, were scattered all over the
country and for the last ten years and more agitated that some means should be found
by which those working in the newspaper industry were enabled to have their wages
and salaries, their dearness allowance and other allowances, their retirement benefits,
their rules of leave and conditions of service, enquired into by some impartial agency
or authority, who would be empowered to fix just and reasonable terms and conditions
of service for working journalists as a whole.
4. Isolated attempts were made by the Uttar Pradesh and Madhya Pradesh
Governments in this behalf. On June 18, 1947, the Government of Uttar Pradesh
appointed a committee to enquire into the conditions of work of the employees of the
newspaper industry in the Uttar Pradesh.
5. On March 27, 1948, the Government of Central Provinces & Berar also appointed an
Inquiry Committee to examine and report on certain questions relating to the general

working of the newspaper industry in the province, including the general conditions of
work affecting the editorial and other staff of newspapers, their emoluments including
dearness allowance, leave, provident fund, pensionary benefits, etc.
6. The Committees aforesaid made their reports on the respective dated March 31,
1949, and March 27, 1948, making certain recommendations. The All-India problem,
however, remained to be tackled and during the debate in Parliament on the
Constitution (First Amendment) Bill, 1951, the Prime Minister said that he was
prepared to appoint a committee or a commission, including representatives of the
Press, to examine the state of the Press and its content. He elaborated the idea further
on June 1, 1951, when he indicated that an enquiry covering the larger issue of the
Press, such as had been carried out in the United Kingdom by the royal Commission,
might be productive of good for the Press and the development of this very important
aspect of public affairs. The idea was further discussed during the debate in Parliament
on the Press (Incitement to Crimes) Bill, later named the Press (Objectionable Matter)
Act, 1952. At its session held in April, 1952, at Calcutta, the Indian Federation of
Working Journalists adopted a resolution for the appointment of a Commission to
enquire into the conditions of the Press in India with a view to improving its place,
status and functioning in the new democratic set up. The appointment of the Press
commission was thereafter announced in a Communique issued by the Govt. of India,
Ministry of Information and Broadcasting, on September 23, 1952, under the
Chairmanship of Shri Justice G. S. Rajadhyaksha.
7. The terms of reference inter alia were :"2. The Press Commission shall enquire into the state of the Press in India, its
present and future lines of development and shall in particular examine :.....................................
(iv) the method of
other conditions of
affecting them and
of high professional

recruitment, training, scales of remuneration, benefits and

employment of working journalists settlement of disputes
factors which influence the establishment and maintenance
standards....."

8. The Commission completed its enquiry and submitted its report on July 14, 1954.
Amongst other things it found that out of 137 concerns about whom information was
available only 59 were returning profits and 68 showed losses. The industry taken as a
whole had returned a profit of about 6 lacks of rupees on a capital investment of about
7 crores, or less than 1 per cent per annum. It found that proof-readers as a class
could not be regarded as working journalists, for there were proof-readers even in
presses doing job work. It came to the conclusion that if a person had been employed
as a proof-reader only for the purpose of making him a more efficient sub-editor, then
it was obvious that even while he was a proof-reader, he should be regarded as a
working journalist but in all other instances, he would not be counted as a journalist
but as a member of the press staff coming within the purview of the Factories Act.
9. The question of the emoluments payable to working journalists, was discussed by it
in paragraphs 538 and 539 of its report :
538 :- "SCALES TO BE SETTLED BY COLLECTIVE BARGAINING OR
ADJUDICATION :- It has not been possible for us to examine in detail the

adequacy of the scales of pay and the emoluments received by the working
journalist having regard to the cost of living in the various centers where these
papers are published and to the capacity of the paper to make adequate
payment.... In this connection it may be stated that the Federation of Working
Journalists also agreed, when it was put to them, that apart from suggesting a
minimum wage it would not be possible for the Commission to undertake
standardisation of designations or to fix scales of pay or other conditions of
service for the different categories of employees for different papers in different
regions. They have stated that these details must be left to be settled by
collective bargaining or where an agreement is not possible the dispute could be
settled by reference to an industrial court or an adjudicator with the assistance
of a Wage Board, if necessary. The All India Newspaper Editors' Conference and
Indian Language Newspapers' Association have also stated that it would not be
possible to standardise designations and that any uniformity of salaries as
between one newspaper and another would be impossible. The resources of
different newspapers vary and the conditions of service are not the same. We
agree in principle that there should be uniformity as far as possible, in the
conditions of service in respect of working journalists serving in the same area
or locality. But this can be achieved only by a settlement or an adjudication to
which the employers and the employees collectively are parties."
539 :- DEARNESS ALLOWANCE :- ".... This again, is a matter which would
require very detailed study of the rise in the index numbers of the cost of living
for various places where the newspapers are published. We do not know of any
case where a uniform rate has been prescribed for dearness allowance
applicable all over the country irrespective of the economic conditions at
different centers and the paying capacity of the various units. This must be a
matter for mutual adjustment between the employers and the employees and if
there is no agreement, some machinery must be provided by which disputes
between the parties could be resolved."
10. The position of a journalist was thus characterised by the Commission :
"A journalist occupies a responsible position in life and has powers which he can
wield for good or evil. It is he who reflects and moulds public opinion. He has to
possess a certain amount of intellectual equipment and should have attained a
certain educational standard without which it would be impossible for him to
perform his duties efficiently. His wage and his conditions of service should
therefore be such as to attract talent. He has to keep himself abreast of the
development in different fields of human activity-even in such technical subjects
as law, and medicine. This must involve constant study, contact with
personalities and a general acquaintance with world's problems."
It considered therefore that there should be a certain minimum wage paid to a
journalist. The possible impact of such a minimum wage was also considered by it and
it was considered not unlikely that the fixation of such a minimum wage may make it
impossible for small papers to continue to exist as such but it thought that if a
newspaper could not afford to pay the minimum wage to the employee which would
enable him to live decently and with dignity, that newspaper had no business to exist.
It recommended division of localities for taking into account the differential cost of
living in different parts of India, and determining what should be the reasonable

minimum wage in respect of each area. It endorsed the concept of a minimum wage
which has been adopted by the Bank Award :"Though the living wage is the target, it has to be tempered, even in advanced
countries, by other considerations, particularly the general level of wages in
other industries and the capacity of the industry to pay.... In India, however, the
level of the national income is so law at present that it is generally accepted
that the country cannot afford to prescribe a minimum wage corresponding to
the concept of a living wage. However, a minimum wage even here must
provide not merely for the bare subsistence of living, but for the efficiency of
the worker. For this purpose, it must also provide for some measure of
education, medical requirements and amenities."
and suggested that the basic minimum wage all over India for a working journalist
should be Rs. 125 with Rs. 25 as dearness allowance making a total of Rs. 150. It also
suggested certain dearness allowance and City allowance in accordance with the
location of the areas in which the working journalists were employed. I compared the
minimum wage recommended by it with the recommendations of the Uttar Pradesh
and Madhya Pradesh Committees and stated that its recommendations were fairly in
line with the recommendations of those Committees particularly having regard to the
rise in the cost of living which had taken place since those reports were made.
11. It then considered the applicability of the Industrial Disputes Act to the working
journalists and after referring to the award of the Industrial Tribunal at Bombay in
connection with the dispute between "Jam-e-Jamshed" and their workmen and the
decision of the Patna High Court in the case of V. N. N. Sinha v. Bihar Journals
Limited [1953] I.L.R. 32 Pat. 688, it came to the conclusion that the working
journalists did not come within the definition of workman as it stood at that time in the
Industrial Disputes Act nor could a question with regard to them be raised by others
who were admittedly governed by the Act. It thereafter considered the questions as to
the tenure of appointment and the minimum period of notice for termination of the
employment of the working journalists, hours of work. provision for leave, retirement
benefits and gratuity, made certain recommendations and suggested legislation for the
regulation of the newspaper industry which should embody its recommendations with
regard to (i) notice period; (ii) bonus; (iii) minimum wages; (iv) Sunday rest; (v)
leave, and (vi) provident fund and gratuity.
12. Almost immediately after the Report of the Press Commission, Parliament passed
the Working Journalists (Industrial Disputes) Act, 1955 (I of 1955) which received the
assent of the President on March 12, 1955. It was an Act to apply the Industrial
Disputes Act, 1947, to working journalists. "Working Journalist" was defined in
s. 2(b) of the Act to mean
"a person whose principal avocation is that of a journalist and who is employed
as such in, or in relation to, any establishment for the production or publication
of a newspaper or in, or in relation to, any news agency or syndicate supplying
material for publication in any newspaper, and includes an editor, a leaderwriter, news-editor, sub-editor, feature
writer, copy-taster, reporter,
correspondent, cartoonist, news-photographer and proof reader but does not
include any such person who :
(i) is employed mainly in a managerial or administrative capacity, or

(ii) being employed in a supervisory capacity, exercises, either by the nature of

the duties attached to the office or by reason of the powers vested in him,
functions mainly of a managerial nature.
Section 3 of that Act provided that the provisions of the Industrial Disputes Act,
1947, shall apply to, or in relation to, working journalists as they apply to or in
relation to workmen within the meaning of that Act.
13. The application of the Industrial Disputes Act, 1947, to the working journalists was
not, however, deemed sufficient to meet the requirements of the situation. There was
considerable agitation in Parliament for the implementation of the recommendations of
the Press Commission, and On November 30, 1955, the Union Government introduced
a Bill in the Rajya Sabha, being Bill No. 13 of 1955. It was a Bill to regulate conditions
of service of working journalists and other persons employed in newspaper
establishments. The recommendations of the Press Commission in regard to minimum
period of notice, bonus, Sunday rest, leave, and provident fund and gratuity, etc., were
all incorporated in the Bill; the fixation of the minimum rates of wages however was
left to a minimum wage Board to be constituted for the purpose by the Central
Government. The provisions of the Industrial Employment (Standing Orders) Act, 1946
(20 of 1946) and the Employees' Provident Funds Act, 1952 (19 of 1952) were also
sought to be applied in respect of establishments exceeding certain minimum size as
recommended by the Commission.
14. It appears that during the course of discussion in the Rajya Sabha, the word
"minimum" was dropped from the Bill wherever it occurred, the Minister for Labour
having been responsible for the suggested amendment. The reason for dropping the
same was stated by him as under :
"Let the word "minimum" be dropped and let it be a proper wage board which
will look into this question in all its aspects. Now, if that is done, I believe, from
my own experience of the industrial disputes with regard to wages, in a way it
will solve the question of wages to the working journalists for all time to come."
The Act as finally passed was entitled "The Working Journalists (Conditions of Service)
and Miscellaneous Provisions Act, 1955 (45 of 1955) and received the assent of the
President on December 20, 1955.
15. The relevant provisions of the Act may now be referred to. It was an Act to
regulate certain conditions of service of working journalists and other persons
employed in newspaper establishments. "Newspaper establishment" was defined in
s. 2(d) to mean
"an establishment under the control of any person or body of persons, whether
incorporated or not, for the production or publication of one or more newspapers or for
conducting any news agency or syndicate".
The definition of "working journalist" was almost in the same terms as that in the
Working Journalists (Industrial Disputes) Act, 1955, and included a proof reader. All
words and expressions used but not defined in this Act and defined in the Industrial
Disputes Act, 1947, were under s. 2(g) to have the meanings respectively assigned to
them in that Act. Section 3 applied the provisions of the Industrial Disputes Act, 1947,
as it was in force for the time being, to working journalists as they applied to, or in

relation to workmen within the meaning of that Act subject to the modification that
s. 25(F) of that Act in its application to working journalists in regard to the period of
notice in relation to the retrenchment of a workman was to be construed as
substituting six months in the case of the retrenchment of an editor and three months,
in the case of any other working journalist. The period which lapsed between the
publication of the report and the enactment of the Working Journalists (Industrial
Disputes) Act, 1955, viz., from July 14, 1954, to March 12, 1955, was sought to be
bridged over by s. 4enacting special provisions in respect of certain cases of
retrenchment during that period. Section 5 provided for the payment of gratuity, inter
alia, to a working journalist who had been in continuous service, whether before or
after the commencement of the Act, for not less than three years in any newspaper
establishment even when he voluntarily resigned from service of that newspaper
establishment. Section 6 laid down that no working journalist shall be required or
allowed to work in any newspaper establishment for more than one hundred and fortyfour hours during any period of four consecutive weeks, exclusive of the time for
meals. Every working journalist was under s. 7 entitled to earned leave and leave on
medical certificate on the terms therein specified without prejudice to such holidays,
casual leave or other kinds of leave as might be prescribed. After thus providing for
retrenchment compensation, payment of gratuity, hours of work, and leave,
Sections 8 to 11 of the Act provided for fixation of the rates of wages in respect of
working journalists. Section 8 authorised the Central Government by notification in the
Official Gazette to constitute a Wage Board for fixing rates of wages in respect of the
working journalists in accordance with the provisions of the Act, which Board was to
consist of an equal number of persons nominated by the Central Government to
represent employers in relation to the newspaper establishments and working
journalists, and an independent person appointed by the Central Government as the
Chairman thereof. Section 9 laid down the circumstances which the Wage Board was to
have regard to in fixing rates of wages and these circumstances were the cost of living,
the prevalent rates of wages for comparable employments, the circumstances relating
to the newspaper industry in different regions of the country and to any other
circumstance which to the Board may seem relevant. The decision of the Board fixing
rates of wages was to be communicated as soon as practicable to the Central
Government and this decision was under s. 10 to be published by the Central
Government in such manner as it thought fit within a period of one month from the
date of its receipt by the Central Government and the decision so published was to
come into operation with effect from such date as may be specified, and where no date
was so specified on the date of its publication. Section 11 prescribed the powers and
procedure of the Board and stated that subject to any rules of procedure which might
be prescribed the Board may, for the purpose of fixing rates of wages, exercise the
same powers and follow the same procedure as an Industrial Tribunal constituted
under the Industrial disputes Act, 1947, exercised or followed for the purpose of
adjudicating an industrial dispute referred to it. The decision of the Board under
s. 12 was declared to be binding on all employers in relation to newspaper
establishments and every working journalist was entitled to be paid wages at a rate
which was to be in no case less than the rate of wages fixed by the Board.
Sections 14 and 15 applied the provisions of the Industrial Employment (Standing
Orders) Act, 1946, as it was in force for the time being and also the provisions of the
Employees' Provident Funds Act, 1952, as it was in force for the time being, to every
newspaper establishment in which twenty or more persons were employed.
Section 17 provided for the recovery of money due from an employer and enacted that
where any money was due to a newspaper employee from an employer under any of
the provisions of the Act, whether by way of compensation, gratuity or wages, the

newspaper employee might, without prejudice to any other mode of recovery, make an
application to the State Government for the recovery of the money due to him, and if
the State Government or such authority as the State Government might specify in this
behalf was satisfied that any money was so due, it shall issue a certificate for that
amount to the collector and the collector shall proceed to recover that amount in the
same manner as an arrear of land revenue. Section 20 empowered the Central
Government by notification in the Official Gazette to make rules to carry out the
purposes of the Act and in particular and without prejudice to the generality of the
foregoing power, such rules were to provide inter alia for the procedure to be followed
by the Board in fixing rates of wages. All rules made under this section, as soon as
practicable after they were made were to be laid before both Houses of Parliament.
The Working Journalists (Industrial Disputes) Act, 1955, was repealed by s. 21 of the
Act.
16. In pursuance of the power given under s. 20 of the Act the Central Government
published by a notification in the Gazette of India - Part II - Section 3, dated July 30,
1956, "The Working Journalists Wage Board Rules, 1956". Rule 8 provided that every
question considered at a meeting of the Board was to be decided by a majority of the
votes of the members present and voting. In the event of equality of votes the
Chairman was to have a casting vote. Rule 13 provided for the resignation of the
Chairman or any member from his office or membership, as the case may be. The seat
held by them was to be deemed to have fallen vacant with effect from the date the
resignation of the Chairman or the member was accepted by the Central Government.
When a vacancy thus arose in the office of the Chairman or in the membership of the
Board, the Central Government was to take immediate steps to fill the vacancy in
accordance with the Act and the proceedings might be continued before the Board so
reconstituted from the stage at which the vacancy was so filled.
17. By a notification dated May 2, 1956, the Central Government constituted a Wage
Board under s. 8 of the Act for fixing rates of wages in respect of working journalists in
accordance with the provisions of the Act, consisting of equal representatives of
employers in relation to newspaper establishments and working journalists and
appointed Shri H. V. Divatia, Retired Judge of the High Court of Judicature, Bombay, as
the Chairman of the Board. The three members of the Board who were nominated to
represent employers in relation to newspaper establishments were (1) Shri G.
Narasimhan, Manager, The Hindu, Madras and President, Indian and Eastern
Newspaper Society; (2) Shri A. R. Bhat, M.L.C., who had been a member of the Press
Commission and was the President of the Indian Language Newspapers Association, as
also the Chairman of the Minimum Wages Inquiry Committee for the Printing Industry
in Bombay and, (3) Shri K. P. Kesava Menon, Editor, Mathrubhumi, Calicut. The other
three members of the Board who were nominated to represent working journalists
were : (1) Shri G. Venkataraman, M.P., (2) Shri C. Raghavan, Secretary-General,
Indian Federation of Working Journalists, and (3) Shri G. N. Acharya, Assistant Editor,
Bombay Chronicle.
18. Shri H. V. Divatia, the Chairman of the Board, had wide and considerable
experience as chairman of the Textile Labour Enquiry Committee, Bombay, had been
the President of the First Industrial Court to be set up in India in 1938, and had
worked as an Industrial Tribunal dealing with several disputes as between several
banks and employees, as well as between several insurance companies and their
employees.

19. The first meeting of the Board was held on May 26, 1956, in the Bharatiya Vidya
Bhavan at Bombay. Sri Kesava Menon and Shri G. Narasimhan were not present at this
meeting. It was a preliminary meeting at which the Board set up a sub-committee
consisting of Shri A. R. Bhat and Shri G. N. Acharya to draft a questionnaire for issue
to the various journals and organisations concerned, with a view to eliciting factual
data and other relevant information required for the fixation of wages for the working
journalists. The sub-committee was requested to bear in mind, while framing the
questionnaire the need for : (1) obtaining detailed accounts of newspaper
establishments; (2) proper evaluation of the nature of and the work of various
categories of working journalists; and (3) proper classification of the country into
different areas on the basis of certain criteria like population, cost of living, etc. The
questionnaire drafted by the sub-committee was to be finalised by the chairman and
circulated to all concerned by the end of June, 1956.
20. The questionnaire was accordingly drawn up and was sent to Universities and
Governments, etc., and several other organisations and individuals interested in the
inquiry of the Board, and to all newspapers individually. It was divided into three parts.
Part "A" was intended to be answered by newspapers, news agencies, organisations of
employers and of working journalists and any individuals who might wish to do so. Part
"B" was meant to be answered by all newspapers and Part "C" by all news agencies.
21. At the outset the Board pointed out that except where the question itself indicated
a different period or point of time, the reporting period for purposes of parts "B" and
"C" of the questionnaire was the financial years (April 1 to March 31) 1952-53, 195354, and 1954-55, or in any establishments which followed a different accounting year,
a period of three years as near thereto as possible. It further pointed out that under
s. 11 of the Act the Board had the powers of an Industrial Tribunal constituted under
the Industrial Disputes Act. In Part "A" of the questionnaire under the heading "Cost of
Living", cost of living index for the respective centers were called for and a special
question was addressed whether the basic minimum wage, dearness allowance and
metropolitan allowance in the table attached to paragraph 546 of the Press commission
was acceptable to the party questioned and, if not, what variations would the party
suggest and why. Comparable employment suggested included (a) Higher secondary
school teachers; (b) College and university teachers; (c) Journalists employed as
publicity and public relations officers in the information departments of the Central and
State Governments; (d) Journalistic employees of the news service division of All India
Radio and (e) Research personnel of the economic and social research departments of
Central Government ministries like finance, labour and commerce. Under the heading
"Special Circumstances", the only question addressed was question No. 7 :
"Are there in your region any special conditions in respect of the newspaper industry
which affect the fixing of rates of wages of working journalists ? If so, specify the
conditions and indicate how they affect the question of wages."
As regards the principles of wage fixation the party questioned was to categories the
different newspaper establishments and in doing so consider the following factors,
among others : (a) Invested capital; (b) Gross revenue; (c) Advertisement revenue;
(d) circulation; (e) Periodicity of publication; (f) The existence of chains, multiple units
and combines; and (g) Location.
22. In part "B" which was to be answered by newspapers were included under the
heading "Accounts" :-

(1) Balance sheets and (2) Trading and profit and loss accounts of the
newspapers as in the specimen forms attached thereto for the reporting period.
Questions were also addressed in regard to the revenue of the newspapers inter
alia from the press, a process studio, outside work, foundry, etc., and
subscriptions as also the expenditure incurred on postage, distribution/sale,
commission and rebate to advertisers, etc. and other items.
23. All information which was considered necessary by the Wage Board for purposes of
fixation of the rates of wages was thus sought to be elicited by the questionnaire.
24. It appears that Shri K. P. Kesava Menon sent in his resignation on or about June
21, 1956, and by a notification dated July 14, 1956, the Central Government accepted
the said resignation and appointed in his place Shri K. M. Cherian, member of the
executive committee of the Indian and Eastern Newspapers Association, one of the
directors of the Press Trust of India and the Chief Editor, Malayala Manorama,
Kottayam, as a member of the Board.
24a. Out of 5,465 newspapers, journals, etc., to whom the questionnaire was sent only
381 answered the same; and out of 502 dailies only 138 answered it. The Board had
an analysis made of those who had replied to the questionnaire and also of their
replies thereto in regard to each of the questions contained in the questionnaire. It
also got statements prepared according to the gross revenue of the newspapers, the
population of the centers, circulation of the papers, the cost of living index, scales of
dearness allowance in certain States, figures of comparable employments, pay scales
of important categories of journalists, etc., the total income, break up of expenditure
in relation to total income and total expenses, total income in relation to net profits,
and net losses and net profits in relation to circulation of the several newspapers which
had sent in the replies to the questionnaire.
25. Further meetings of the Board were held on August 17, and August 20, 1956, in
Bombay. The Chairman informed the members that response from journals,
organisations, etc., to whom questionnaire was sent was unsatisfactory and it was
decided to issue a Press Note requesting the papers and journals to send their replies,
particularly to Part "B" of the questionnaire as soon as possible inviting their attention
to the fact that the Board had powers of an Industrial Tribunal under the Act, and if
newspapers failed to send their replies, the Board would be compelled to take further
steps in the matter. It was decided that for purposes of taking oral evidence, the
country be divided into 5 zones, namely, Trivandrum, Madras, Delhi, Calcutta and
Bombay and the Secretary was asked to summon witnesses to the nearest and
convenient center. It was further decided that one hour should normally be allotted to
each newspaper, 3 hours for regional units and 2 hours for smaller units for oral
evidence. The Board also discussed the question as to the number of persons who
might ordinarily be called for oral evidence from each newspaper or organisation. It
thought that one of the important factors governing the findings of the Board would be
the circulation of each newspaper, and as such it was decided that the figures with the
Audit Bureau of Circulation Ltd., might be obtained at once. The Board also decided to
ask witnesses, if necessary, to produce books of accounts, income-tax assessment
orders or any other document which in its opinion was essential.
26. Meetings of the Board were held at Trivandrum from September 7, to September
10, 1956, in Madras from September 15, to September 20, 1956, in New Delhi from
October 19, to October 26, 1956, in Calcutta from November 25, to December 4,

1956, and in Bombay from January 4, to January 10, 1957, from January 20, to
February 6, 1957, from March 25 to March 31, 1957 and finally from April 22 to April
24, 1957.
27. Evidence of several journalists and persons connected with the newspaper industry
was recorded at the respective places and at its meeting in Bombay from March 25, to
March 31, 1957, the Board entered upon its final deliberations. At this meeting the
chairman impressed upon the members the desirability of arriving at unanimous
decisions with regard to the fixation of wages, etc. He further stated that he would be
extremely happy if representatives of newspaper industry and of working journalists
could come to mutual agreement by direct discussions and he assured his utmost cooperation and help in arriving at decisions on points on which they could not agree.
Members welcomed this suggestion and decided to discuss various issues among
themselves in the afternoon and on the following days.
28. After considerable discussion on March 25, 1957, and March 26, 1957, in which the
representatives of the newspapers and of working journalists had joint sittings,
unanimous decisions were arrived at on (i) classification of newspapers, (ii)
classification of centers and (iii) classification of employees, except on one point,
namely, classification of group, multiple units and chains on the basis of their total
gross revenue. This was agreed to by a majority decision. The chairman and the
representatives of the working journalists voted in favour while the representatives of
the employers voted against. Regarding scales of pay, the chairman suggested at the
meeting of March 27, 1957, that pending final settlement of the issue the parties
should submit figures of scales based on both assumptions, namely, consolidated
wages and basic scales with separate dearness allowance. Both sides agreed to submit
concrete suggestions on the following day. At the Board's meeting on March 28, 1957,
the representatives of the employers stated that the term "rates of pay" did not
include scales of pay; therefore, the Board was not competent to fix scales of working
journalists and they submitted a written statement signed by all of them to the
chairman in support of their contention. The representatives of the working journalists
argued that the Board was competent to fix scales of pay. The chairman adjourned the
sitting of the Board to study this issue. A copy of the written statement submitted by
the representatives of the employers was given to the representatives of the working
journalists and they submitted a written reply the same afternoon contending that the
Board was competent to fix scales of pay of various categories of working journalists.
At its meeting on March 29, 1957, the Board discussed its own competency to fix
scales of pay. The chairman expressed his opinion in writing, whereby he held that the
Board was competent to fix scales of pay. On a vote being taken according to r. 8 of
the Working Journalists Wage Board Rules, 1956, the chairman and the
representatives of the working journalists voted in favour of the competence of the
Board to fix scales of pay, while the representatives of the employers voted against it.
Thereafter, several suggestions were made on this question, but since there was no
possibility of any agreement on this issue, the chairman suggested that members
should submit their specific scales to him for his study to which the members agreed.
It was also decided that the chairman would have separate discussions wish
representatives of working journalists in the morning and with representatives of
employers in the afternoon of March 30, 1957. It was also decided that the Board
should meet again on March 31, 1957, for further discussions. No final decision was
however arrived at in the meeting of the Board held on March 31, 1957, on scales of
pay, allowances, date of operation of the decision, etc. It was decided that the Board
should meet again on April 22, 1957, to take final decisions.

29. A meeting of the Board was accordingly held from April 22 to 24, 1957, in the
office of the Wage Board at Bombay. It was unanimously agreed that the word
"decision" should be used wherever the word "report" occurred. The question of the
nature of the decisions which should be submitted to the Government was then
considered. It was agreed that reasons need not be given for each of the decisions,
and that it would be sufficient only to record the decisions. The members then
requested the chairman to study the proposals regarding scales of pay, etc., submitted
by both the parties and to give his own proposals so that they may take a final
decision. Accordingly, the chairman circulated to all the members his proposals
regarding pay scales, dearness allowance, location allowance and retainer allowance.
30. The following were the decisions arrived at by the Board on the various points
under consideration and they were unanimous except where otherwise stated. The
same may be set out here so far as they are relevant for the purposes of the inquiry
before us.
1. For the purpose of fixation of wages of working journalists, newspaper
establishments should be grouped under different classes.
2. Except in the case of weeklies and other periodicals expressly provided for
hereinafter, newspaper establishments should be classified on the basis of their
gross revenue.
3. For purposes of classification, revenue from all sources of a newspaper
establishment, should be taken for ascertaining gross revenue.
4. Classification of Newspaper Establishments :
Dailies - Newspaper Establishments should be classified under the following five
classes :-

Class

Gross Revenue

"A"

over Rs. 25 lakhs

"B"

over Rs. 12 1/2 to 25

lakhs

"C"

over Rs. 5 to 12 1/2 lakhs

"D"

over Rs. 2 1/2 to 5 lakhs

"E"

Rs. 2 1/2 lacks and below

5. Classification of newspaper establishments should be based on the average

gross revenue of the three-year period, 1952, 1953 and 1954.
6. It shall be open to the parties to seek re-classification of the newspaper
establishments on the basis of the average of every three years commencing
from the year 1955.
11. Groups, multiple units and chains should be classified on the basis of the
total gross revenue of all the constituent units. (This was a majority decision,
the chairman and the representatives of the working journalists voting for and
the representatives of the employers voting against).
12. A newspaper establishment will be classified as :(i) A group, if it publishes more than one newspaper from one center;
(ii) A multiple unit, if it publishes the same newspaper from more than one
center;
(iii) A chain, if it publishes more than one newspaper from more than one
center.
20. Working journalists employed in newspaper establishments should be
grouped as follows :
(a) Full time employees :
Group I : Editor
Group II : Assistant Editor, Leader Writer, News Editor, Commercial Editor,
Sports Editor, Film or Art Editor, Feature Editor, Literary Editor, Special
Correspondent, Chief Reporter, Chief Sub-Editor and Cartoonist.
Group III : Sub-Editors and Reporters of all kind and full time correspondents
not included in Group (II); news photographers and other journalists not
covered in the groups.
Group IV : Proof Readers.
(b) Part time employees :
Correspondents who are part time employees of a newspaper establishment and
whose principal avocation is that of journalism.
An employee should be deemed to be a full time employee if under the
conditions of service such employee is not allowed to work for any other
newspaper establishments.
23. The wage scales and grades recommended by the chairman were agreed to
by a majority decision. The chairman and the representatives of the working
journalists voted for and the representatives of the employers voted against.

Shri Bhat suggested that wage scales should be conditional on a newspaper

establishment making profits in any particular year and also that time should be
given to the newspaper establishments for bringing the scales into operation.
These suggestions, however, were not acceptable to the majority.
35. Wages, scales and grades : (as agreed to by the majority) were as under :
Working journalists of different groups employed in different classes of
newspaper establishments should be paid the following basic wages per
mensem.

1. Dailies.

Class
Newspapers

of

Group
Employees

Starting
Pay

Scale

90

No Scale

150

No Scale

IV

100

100-5-165 (13 Yrs.) EB-7-200 - (5

Yrs.)

III

115

115-7 1/2-205 - (12 Yrs.) EB-15295 (6 Yrs.)

II

200

200-20-400 (10 Yrs.)

IV

of

III

II

IV

III

100 100-5-165 (13 Yrs.) EB-7200-(5 Yrs.)

125

125-10-245 (12 Yrs.) EB-12 1/2-

320 (6 Yrs.)

225

225-20-385 (8 Yrs.) EB-30-445 (2

Yrs.)

350

350-25-550 (8 Yrs.) -40-630 (2

Yrs.)

IV

100

100-5-165 (13 Yrs.) EB-7-200 (5

Yrs.)

III

150

150-12 1/2-300 (12 Yrs.) EB-20420 (6 Yrs.)

II

350

350-20-510 (8 Yrs.) EB-30-570 (2

Yrs.)

500

500-30-740 (8 Yrs.) -40-820 (2

Yrs.)

IV

125

125-7 1/2-215 (12 Yrs.) EB-10275 (6 Yrs.)

III

175

175-20-415 (12 Yrs.) EB-25-515

(4 Yrs.)

II

500

500-40-820 (8 Yrs.) EB-50-920 (2

Yrs.)

1000

1000-50-1300 (6 Yrs.) -75-1600

(4 Yrs.)

36. Dearness allowance, location allowance and part time employees

remuneration were also majority decisions. - The chairman and the
representatives of the working journalists voting for and the representatives of
the employers voting against.

28. Other allowances :- In view of the paucity of evidence on the subject, the
Board decided that the fixation of conveyance and other allowances should be
left to collective bargaining between the working journalists and the newspaper
establishments concerned.
29. Fitment of employees :- For fitment of the present employees into the new
scales, service in a particular grade and category and in the particular
newspaper establishment alone should be taken into account.
30. In no case should the present emoluments of the employees be reduced as
a result of the operation of this decision.
35. When a newspaper establishment is re-classified as per para. 6 supra, the
existing pay of the staff should be protected. But future increments and scales
should be those applicable to the class of paper into which it falls.
38. Date of operation :- The Board's decision should be operative from the date
of constitution of the Board (i.e., 2-5-1956) in respect of newspaper
establishments coming under Class "A", "B" and "C" and from a date six months
from the date of appointment of the Board (i.e. 1-11-1956) in the case of
newspaper establishments under class "D" & "E". (This was also a majority
decision. The chairman and the representatives of the working journalists voted
for and the representatives of the employers voted against).
41. The Government of India should constitute a Wage Board under the Act, to
review the effect of the decisions of the Board on the newspaper establishments
and the working journalists, after the expiry of 3 years but not later than 5
years from the date of the publication of the decisions of the Board.
31. These decisions were recorded on April 30, 1957, but the representatives of the
employers thought fit to append a minute of dissent and the chairman also put on
record a note on the same day explaining the reasons for the decisions thus recorded.
These documents are of vital importance in the determination of the issues before us.
32. In the minute of dissent recorded by the representatives of the employers they
started with an expression of regret that the conditions in the newspaper industry did
not permit them to accept the majority view. They expressed their opinion that the
fixation of rates of wages should be governed by the following criteria :
(i) normal needs of a worker;
(ii) capacity of the industry to pay;
(iii) nature of the industry; and
(iv) effect on the development of the industry and on employment.
33. They pointed out that :
(a) The newspaper industry was a class by itself. The selling price of its product
was ordinarily below its cost of production. Further, the cost of production

specially that of newsprint, went on varying and the frequent rises in newsprint
price made it difficult to plan and undertake any long term commitment of an
increasing expenditure.
(b) The income of the newspaper industry was principally derived from two
main sources : sales of copies and advertisement. While sales depended on
public acceptance, income from advertisement depended upon circulation,
prestige and purchasing power of readers. All those factors made publishing of
newspapers a hazardous undertaking and the hazard continued throughout its
existence with the result that it was obligatory that the rates of wages or scales
should be fixed at the minimum level, leaving it to the employees to share the
prosperity of the units through bonuses.
(c) It was not ordinarily easy for newspapers to increase the selling price and it
had been the experience of some established newspapers that such a course,
when adopted, had invariably brought about a reduction in circulation. The fall
in circulation had in turn an adverse effect on the advertisement revenue. The
sales or advertisement income of a newspaper was not responsive to a
progressive increase in expenditure.
(d) In any fixation of wages of a section of employees, its effect on other
sections had to be taken into consideration. Editorial employees were one
section of a newspaper establishment and any increase in their emoluments
would have its inevitable repercussions on the wages of other sections. The
salaries of working journalists would roughly be one-fifth of the total wage bill.
The factory staff had a great bargaining power and as such any increase in the
salaries and introduction of scales in the editorial department would have to be
followed by an increase in the wages and introduction of time scales in the
factory side.
(e) It was the advertisement revenue that principally decided the capacity to
pay of a newspaper industry. It was not enough to take into consideration the
gross revenue of a newspaper alone but also the proportion of advertisement
revenue in it. This meant that minimum salaries and scales to be fixed on an
All-India basis would perforce have to be low if the newspapers in language of
regions with a low purchasing power such as Kerala and Orissa were not to be
handicapped. It would therefore be fair both to the industry and employees if
wages were fixed region-wise.
(f) The proposals, which the majority had made, clearly showed that, according
to it the dominating principle of wage fixation was the need of the worker as
conceived by them, irrespective of its effect on the industry. The Board had not
before it sufficient data needed for the proper assessment of the paying
capacity of the industry. The profit and loss statements of the daily newspaper
establishments for the year 1954-55 as submitted to the Board revealed that
while 43 of them had shown profits 40 had incurred losses. The condition of the
newspaper industry in the country as a whole could not be considered
satisfactory. The proposals embodied in the decision made by the majority were
therefore unduly high. They would immediately throw a huge burden on many
papers, a burden which would progressively grow for some years, and would be
still bigger when its impact takes place on the wages of employees of its other
sections. All this will in its turn add to the burden of provident fund, gratuity,

etc., when the full impact of the burden took place and the wages of the entire
newspaper establishments went up, it would throw out of gear the economy of
most of the newspapers. It might be that there may not be many closures
immediately, because many of the newspapers would not be in a position to
meet the liability of retrenchment compensation, gratuity, etc., resulting from
such a step, newspapers would try to meet the liability by borrowing to the
extent possible and when their credit was exhausted, they must close down. So
far as new newspaper promotions were concerned, they would be few and far
between, with the result that after a few years it would be found that the
number of daily newspapers in the country had not increased but had gone
down. Such an eventuality was not in the interests of the country both from the
point of view of employment as well as of freedom of expression.
(g) As regards chains and groups the criterion for classification adopted by the
majority was unfair and unnatural. The total gross revenue of all the units in a
chain or a group gave an unreal picture of its capacity to pay.
(h) Giving of retrospective effect, would help only to aggravate the troubles of
the newspaper industry which had been already called upon to devise ways and
means of meeting the burden of retrospective gratuity.
(i) As regards the prevalent rates of wages for comparable employments the
nature of work of the working journalists in newspaper establishments could not
be compared with other avocations or professions and the rates of wages of
working journalists should be fixed only in the context of the financial condition
of the newspaper industry. Comparison, could, however, be made within limits,
namely with respect to alternative employments available to persons with
similar educational qualifications in particular regions or localities. From that
point of view the salaries paid to secondary school teachers, college and
university teachers and employees in commercial firms and banks should be
taken into consideration, but the majority had rejected this view.
34. The note of the chairman was meant to explain the reasons of the decisions which
he stated he at least had in view and some of which were accepted unanimously and
others were accepted by some members and thereby became majority decisions. At
the outset the chairman explained that most of the recommendations of the Press
commission were intended for the betterment of the economic condition of small and
medium newspapers, such as price page schedule, telescopic rates for Government
advertisements and their fair distribution among newspapers, statutory restrictions on
malpractices so as to eliminate cutthroat competition and fixation of news agency
tariffs which still remained to be implemented and there had been no stability in the
prices of newsprint which constituted a considerable proportion of the expenditure of a
newspaper. These circumstances had necessitated the fixing of a minimum wage lower
than that recommended by the Press Commission.
35. As regards fixation of the rates of wages, the chairman observed :
"In fixing the rates of wages, we have based them on the condition of the
newspaper industry as a whole and not on the effect which they will produce on
a particular newspaper. We can only proceed on the average gross income of a
newspaper falling under the same class and not on the lowest unit in that class.
Otherwise, there will be no improvement in any unit of the same class, and the

status quo might remain. With the extremely divergent conditions obtaining in
both English as well as Indian language newspapers, it is impossible to try to
avoid any small or medium newspaper being adversely affected. When the tone
and condition of journalism in India has to be brought on a higher level it is
inevitable that in doing so, more or less burden will fall on several newspapers;
I realise that in cases where wages are very low and dearness allowance is also
low or even non-existent and there are no scales at all, the reaction to our wage
schedule will be one of resentment by the proprietors. Some anomalies may
also be pointed out; but it must be remembered that we had no data of all the
newspapers before us and where we had, it was in many cases not satisfactory.
Under these circumstances, we cannot satisfy all newspapers as well as
journalists. However, we have tried to proceed on the basis of accepted
principles also keeping in view the recommendations of the Press Commission
and not on the editorial expenditure of each newspaper. I am also of the opinion
that by rational management there is great scope for increasing the income of
newspapers and we have evidence before us that the future of the Indian
language newspapers is bright, having regard to increasing literacy and the
growth of political consciousness of the reading public. When there are wide
disparities, there cannot be any adjustment which might satisfy all persons
interested. We hope no newspaper is forced to close down as a result of our
decision. But if there is a good paper and it deserves to exist, we hope the
Government and the public will help it to continue."
The chairman then proceeded to observe :
"We do not consider it a matter of regret if our decisions discourage the entry into this
industry of persons without the necessary resources required for the payment of a
reasonable minimum wage. While we are anxious to promote and encourage the growth
of small newspapers, we also feel strongly that it should not be at the expense of the
working journalists. The same applies, in our view, to newspapers started for political,
religious or any other propaganda."
36. The reason for grouping all the constituent units of the same group of chain in the
same class in which they would fall on the basis of the total gross income of the entire
establishment was given by the chairman as under :"One of the difficult tasks before us was to fix the wages of journalists working
in newspapers which have recently come to exist in our country. All the
accounts of the constituent units in the same group or chain are merged
together with the result that the losses of the weaker units are borne from the
high income of prosperous units. There is considerable disparity in the wages of
journalists doing the same kind of work in the various constituent units situated
in different centers. The Press Commission has strongly criticised the methods
of such chains and groups and their adverse effects on the employees. We have
decided to group all the constituent units of the same group or chain in the
same class in which they would fall on the basis of the total gross income of the
entire establishment. We are conscious that as a result of this decision, some of
the journalists in the weak units of the same group or chain may get much more
than those working in its highest income units. If however, our principle is good
and scientific, the inevitable result of its application should be judged from the
stand-point of Indian Journalism as a whole and not on the burden it casts on a
particular establishment. It may be added that in our view, the principle on

which we have proceeded is one of the main steps to give effect to the views
expressed by the Press Commission."
37. The chairman then referred to the points which the representatives of the
newspaper employers had urged as to the burden which might be cast as a result of
the decisions and expressed himself as under :
"I Sympathies with their view point and in my opinion, looking to all the
circumstances, especially the fact that this is the first attempt to fix rates of
wages for journalists, it is probable that some anomalies may result from the
implementation of our decisions. We are, therefore, averse to imposing a wage
schedule of all classes of newspapers on a permanent basis. It is, thus
important that the wage rates fixed by us should be open to review and revision
in the light of experience gained within a period of 3 to 5 years. This becomes
necessary especially in view of the fact that the data available to us have not
been as complete as we would have wished them to be, and also because it is
difficult for us at this stage to work out with any degree of precision, the
economic and other effects of our decisions on the newspaper industry as a
whole."
38. The chairman suggested as a palliative the creation by the Government of India
immediately of a standing administrative machinery
"which could also combine in itself the functions of implementing and administering our
decisions and that of preparing the ground for the review and revision envisaged after 3
to 5 years. This machinery should collect from all newspaper establishments in the
country on systematic basis detailed information and data such as those on employment,
wage rates, and earnings, financial condition of papers, figures of circulation, etc., which
may be required for the assessment of the effects of our decisions at the time of the
review."
39. The above decision of the Wage Board was published by the Central Government in
the Gazette of India Extraordinary dated May 11, 1957. The Commissioner of Labour,
Madras, issued a circular on May 30, 1957, calling upon the managements of all
newspaper establishments in the State to send to him the report of the gross revenue
for the three years, i.e., 1952, 1953 and 1954, within a period of one month from the
date of the publication of the Board's decision, i.e., not later than June 10, 1957. Writ
Petition No. 91 of 1957 was thereupon filed on June 13, 1957, by the Express
Newspapers (Private) Ltd., against the Union of India & others and this petition was
followed up by similar petitions field on August 9, 1957, by the Press Trust of India
Ltd., the Indian National Press (Bombay) Private Ltd., and the Saurashtra Trust, being
Petitions Nos. 99, 100, and 101 of 1957 respectively. The Hindustan Times Ltd., New
Delhi filed on August 23, 1957, a similar petition, being Petition No. 103 of 1957, and
three more petitions, being Petitions Nos. 116, 117 and 118 of 1957, were filed by the
Loksatta Karyalaya, Baroda, Sandesh Ltd., Ahmedabad and Jan Satta Karyalaya,
Ahmedabad, respectively, on September 18, 1957.
40. The Express Newspapers (Private) Ltd., the petitioners in Petition No. 91 of 1957,
otherwise termed the "Express Group", are the biggest chain in the newspaper world in
India. They publish (i) Indian Express, an English Daily, from Madras, Bombay, Delhi
and Madurai, (ii) Sunday Standard, an English Weekly, from three centers - Madras,
Bombay and Delhi, (iii) Dinmani, a Tamil Daily from Madras and Madurai, (iv) Dinmani

Kadir, a Tamil Weekly from Madras, (v) Loksatta, a Maratha Daily, and Sunday
Loksatta, a Maratha Weekly, from Bombay, (vi) Screen, and English Weekly from
Bombay and (vii) Andhra Prabha, a Telugu Daily and weekly. The total number of
working journalists employed by them are 331, out of whom there are 123 proof
readers, as against 1570 who form the other members of the staff. The present
emoluments of the working journalists in their employ amount to Rs. 9,77,892,
whereas if the decision of the Wage Board were given effect to they would go up to Rs.
15,21,282.12 thus increasing the wage bill of the working journalists annually by Rs.
5,43,390.12. They would also have to pay remuneration to the part-time
correspondents on the basis of retainer as well as payment or news items on column
basis. That would involve an additional burden of about Rs. 1 lakh a year. The
retrospective operation of the Wage Board's decision with effect from May 2, 1956, in
their case would further involve a payment of Rs. 5,16,337.20. This would be the extra
burden not taking account the liability for past gratuity and the recurring gratuity as
awarded under the provisions of the Act and also the increased burden which would
have to be borne by reason of the impact of the provisions in regard to reduced hours
of working, increase in leave, etc., provided therein. If, moreover, the members of the
staff who are not included in the definition of working journalists made similar
demands for increasing their emoluments and bettering their conditions of service then
there would be an additional burden which is estimated at Rs. 9,92,443.68.
41. The Press Trust of India Ltd., the petitioners in Petition No. 99 of 1957, are a nonprofit making co-operative organization of newspaper proprietors. They employ 820
employees in all, out of whom 170 are working journalists and 650 do not come within
that definition. Their total wage bill is Rs. 21,00,000 per year (approximately) out of
which the annual salary of the working journalists is Rs. 9,00,000. The increase in their
wage bill due to increase in the salary of the working journalists as per the decision of
the Wage Board would come to Rs. 4,05,600 and they would have to pay be way of
arrears by reason of the retrospective operation of the decision another sum of Rs.
4,05,600 to the working journalists. There would also be an additional financial burden
of Rs. 60,000 every year by reason of the recurring increments in the monthly salaries
of the working journalists employed by them. If the benefits of the Wage Board
decision were extended to the other members of the staff who are not working
journalists within the definition of that term but who have also made similar demands
on them, a further annual burden would be imposed on the petitioners which is
estimated at Rs. 3,90,000. If perchance the petitioners not being able to run their
concerned except at a loss intended to close down the same, the amount which they
would have to pay to the working journalists under the provisions of the Act and the
decision of the Wage Board would be Rs. 23,68,500 as against the old scale liability of
Rs. 11,62,500 and the other members of the staff who do not fall within the category
of working journalists would have to be paid a further sum of Rs. 15,50,000. The total
liability of the petitioners in such an event would amount to Rs. 39,18,000 as against
the old liability of Rs. 27,12,500.
42. The Indian National Press (Bombay) Private Ltd., otherwise known as the Free
Press Group, are petitioners in Petition No. 100 of 1957. They publish (i) Free Press
Journal, a morning English Daily (ii) Free Press Bulletin, an evening English Daily (iii)
Bharat Jyoti, an English Weekly (iv) Janashakti, a morning Gujarati Daily and (v)
Navashakthi, a Marathi Daily - all from Bombay. They employ 442 employees including
part-time correspondents out of whom 65 are working journalists and 21 are proof
readers and the rest from members of the other staff not falling within the category
working journalists. The effect of the decision of the Wage Board would be that there

would have to be an immediate payment of Rs. 1,73,811 by reason of the

retrospective operation of the decision and there will also be an annual increase in the
wage bill to the same extent, i.e., Rs. 1,73,811. There will also be a yearly recurring
increase to the extent of Rs. 22,470 and also corresponding increase for contribution
to the provident fund on account of increase in salary. Under the provisions of the Act
in regard to reduced hours of work, and increase in leave, moreover, there will be an
increase in liability to pay Rs. 90,669 and Rs. 29,806 respectively, in the case of
working journalists, besides the liability for past gratuity in another sum of Rs.
1,08,534 and recurring annual liability for gratuity in a sum of Rs. 17,995. If similar
benefits would have to be given to the other members of the staff who do not fall
within the definition of working journalists the annual burden would be increased by a
sum of Rs. 1,80,000. This would be the position by reason of the petitioners being
classified and treated as a chain of newspapers and having been classified as "A" class
newspaper establishment on a total computation of the gross revenue of all their units.
If they were not so treated and the component units were classified on their individual
gross revenue the result would be that the Free Press Journal, the Free Press Bulletin
and the Bharat Jyoti would fall within class "A", and Navashakthi would fall within class
"C" and Janashakti would fall within class "D" thus minimising the burden imposed
upon them by the impact of the Wage Board decision.
43. The Saurashtra Trust, the petitioners in Petition No. 101 of 1957, are another chain
of newspapers and they publish (i) Janmabhoomi, a Gujarati Daily from Bombay, (ii)
Janmabhoomi and Pravasi, a Gujrati Weekly from Bombay, (iii) Lokmanya, a Marathi
Daily from Bombay, (iv) Vyapar, a Gujrati Weekly commercial paper from Bombay, (v)
Fulchhab, a Gujrati Daily from Rajkot, (vi) Pratap, a Gujrati Daily from Surat, (vii)
Cuttccha Mitra, a Gujrati Daily from Bhuj (Cutch) and, (vii) Nav Bharat, a Gujrati Daily
from Baroda. They employ 445 employees out of whom 60 are working journalists and
12, proof readers and the rest belong to the other members of the staff. The effect of
the Wage Board decision on them would be to impose on them a burden of Rs.
1,59,528 by reason of the retrospective operation of the decision and an annual
increase in the wage bill of Rs. 1,59,528 for the first year and an annual recurring
increase of Rs. 22,000. The operation of sections 6 and 7 of the Act in regard to
reduced hours of work and provision for increased leave would impose an additional
burden of Rs. 42,000 per year. The liability for past gratuity would be Rs. 93,376 and
the recurring annual increase in gratuity would be Rs. 11,000. If similar benefits were
also given to the other members of the staff who were not working journalists the
annual burden will increase by Rs. 5,18,964, by reason of their classification as "A"
class newspaper establishment on a chain basis, all the component units have got to
be treated as "A" class newspapers, whereas if they were classified on a computation
of the gross revenue of their component units Vyapar would fall within Class "B" the
Janmabhoomi and Lokmanya would fall within Class "C" and the Cuttccha Mitra,
Fulchhab and Pratap would fall within class "E". The inequity of this measure is,
moreover, sought to be augmented by their pointing out that whereas the
Janmabhoomi from Bombay is placed in the "A" Class, Bombay Samachar (Bombay), a
morning Gujrati Daily from Bombay, which has a larger gross revenue than
Janmabhoomi taken as a single unit is placed in Class B. Similarly, the Pratap from
Surat is placed in Class A, whereas the Gujarat Mitra from Surat which has a larger
gross revenue than the Pratap is placed in Class "B" because of its being treated as a
unit by itself; and the Fulchhab from Rajkot is also placed in Class "A", whereas the
Jaihind from Rajkot, which has a larger gross revenue than the Fulchhab, is placed in
Class "C" for an identical reason. The total cost of closing down the concern, if
perchance the petitioners have to so close down owing to their inability to carry on the

business except at a loss, is worked out at Rs. 6,13,921 for the working journalists as
against the old basis of Rs. 1,00,890. The figure for the rest of the staff who are not
working journalists is computed at Rs. 3,08,112 with the result that the total cost of
closing down on the new basis under the provisions of the Act and the decision of the
Wage Board would be Rs. 9,22,033 as against what otherwise would have been a sum
of Rs. 4,09,002.
44. The Hindustan Times Ltd., New Delhi, the petitioners in petition No. 103 of 1957,
otherwise called "the Hindustan Times Group", publish (i) Hindustan Times, an English
(Morning) Daily, (ii) Hindustan Times (Evening News) an English (evening) Daily, (iii)
Overseas Hindustan Times, an English Weekly, (iv) Hindustan, a Hindi Daily, and (v)
Saptahik Hindustan, a Hindi Weekly - all from Delhi. They employ a total number of
695 employees out of whom 79 are working journalists, 14 are proof readers and the
rest, viz., 602 are other members of the staff. The wages paid to the working
journalists absorb about one-third of the total wage bill as against 602 other members
of the staff whose wage bill constitutes the remaining two-thirds. If the decision of the
Wage Board is given effect to the petitioners would be subjected to the following
additional liabilities in respect of working journalists alone : (i) Increase in the annual
wage bill Rs. 2,16,000 (Approx.) (ii) Arrears of payments from May 2, 1956, to April
30, 1957, Rs. 1,89,000 (iii) Past liability in respect of gratuity as on March 31, 1957,
Rs. 2,65,000 (iv) Recurring annual liability of gratuity Rs. 28,000. The total liability
thus comes to Rs. 6,98,000. The above figures do not include increased liability on
account of the petitioners' contribution towards provident fund, leave rules and
payment to part-time correspondents. There would also be a further recurring increase
in the wage bill by reason of the increments which would have to be given to the
various categories of working journalists on the scales of wages prescribed by the
Wage Board. If other members of the staff (who are not "working journalists") were to
be considered for increase in their emoluments, etc., there will be a further burden on
the petitioners computed as under :
(a) Increase in the annual wage bill, Rs. 5,02,000 (Approx.), (b) arrears of
payments from May 2, 1956, to April 30, 1957, Rs. 4,51,000 (Approx.), (c) Past
liability in respect of gratuity as on March 31, 1957, Rs. 5,50,000 (Approx.), (d)
Recurring annual liability for gratuity Rs. 60,000 (Approx.). The total comes to
Rs. 15,63,000.
45. The petitioners in petition No. 116 of 1957 are the Loksatta Karyalaya, Baroda,
which publish the Loksatta, a Gujarati Daily from Baroda. They employ 15 working
journalists. The annual wage bill of working journalists would have to be increased by
reason of the decision of the Wage Board by Rs. 10,800; the burden of payment of
retrospective liability being Rs. 9,600. Moreover, there will be a recurring annual
burden of Rs. 6,340 inclusive of the expenditure involved by reason of the provisions
as to (i) Notice pay, (ii) Gratuity, (iii) Retrenchment compensation and (iv) Extra
burden of reduced hours of work and increased leave.
46. The Sandesh Ltd., the petitioners in Petition No. 117 of 1957, otherwise styled, the
Sandesh Group, Ahmedabad, Publish (i) Sandesh, a morning Gujrati Daily, (ii) Sevak,
an evening Gujrati Daily, (iii) Bal Sandesh, a Gujarati Weekly, and (iv) Aram, and (v)
Sat Sandesh, Gujarati Monthlies - all from Ahmedabad. They employ a total staff of
205 employees out of whom there are 11 working journalists, 7 proof readers and the
rest 187 constitute the other members of the staff. The increase in the wage bill of the
working journalists under the provisions of the Act would be Rs. 24,807 per year

besides a similar liability for Rs. 24,807 by reason of the retrospective operation of the
decision. There will be an increase in expenditure to the tune of Rs. 30,900 by reason
of the reduced working hours and increase in leave and holidays, a liability of Rs.
31,597 for past gratuity and Rs. 24,807 every year for recurring gratuity as also Rs.
1,530 for recurring increase in wages of the working journalists. The financial burden
in the case of proof-readers who are included in the definition of working journalists
under the terms of the Act would be Rs. 5,724 per year. If similar benefits were to be
given to the other members of the staff who are not working journalists the annual
increase in the burden will be Rs. 1,89,816. The total costs of closing down if such an
eventuality were contemplated would be Rs. 1,08,997 for the working journalists only
as against a liability of Rs. 22,755 on the old basis. The other members of the staff
would have to be paid Rs. 1,46,351 and the total cost of closing down the whole
concern would thus come to Rs. 2,55,349 under the new dispensation as against Rs.
1,69,106 as of old.
47. The Jansatta Karyalaya, Ahmedabad, petitioners in Petition No. 118 of 1957 bring
out (i) Jansatta, a Gujarati Daily and (ii) Chandni a Gujarati Monthly from Ahmedabad.
They employ 15 working journalists, 6 proof-readers and 87 other members of the
staff thus making a total number of 108 employees. The increase in the wage-bill of
the working journalists would come to Rs. 29,808. The liability for past gratuity would
be Rs. 6,624 and the recurring annual gratuity would be Rs. 2,303 and the annual
recurring increase in wages would come to Rs. 2,280. The financial burden in case of
proof-readers would be Rs. 6,480 per year as per the decision of the Wage Board. If
similar benefits had to be given to the other members of the staff who are nonworking journalists the annual burden will increase by Rs. 48,720. The total cost of
closing down, if such a contingency ever arose, would come to Rs. 1,00,798 under the
provisions of the Act and the Wage Board decision as against Rs. 45,206 on the old
basis.
48. All these petitions filed by the several petitioners as above followed a common
pattern. After succinctly reciting the history of the events narrated above which led to
the enactment of the impugned Act and the decision of the Wage Board, they
challenged the vires of the Act and the decision of the Wage Board. The vires of the
Act was challenged on the ground that the provisions thereof were violative of the
fundamental rights guaranteed by the Constitution under Art. 19(1)(a), Art. 19(1)(g),
and Art. 14; but in the course of the arguments before us another Article, viz.,
Art. 32 was also added as having been infringed by the Act. The decision of the Wage
Board was challenged on various grounds which were in pari materia with the
objections that had been urged by the representatives of the employers in the Wage
Board in their minute of dissent above referred to. It was also contended that the
implementation of the decision would be beyond the capacity of the petitioners and
would result in their utter collapse. The reply made by the respondents was that none
of the fundamental rights guaranteed under Art. 19(1)(a), Art. 19(1)(g),
Art. 14 and/or Art. 32 were infringed by the impugned Act, that the functions of the
Wage Board were not judicial or quasi-judicial in character, that the fixation of the
rates of wages was a legislative act and not a judicial one, that the decision of the
Wage Board had been arrived at after taking into consideration all the criteria for
fixation of wages under s. 9(i) of the Act and the material as well as the evidence led
before it, that a considerable portion of the decisions recorded by the Wage Board
were unanimous, that the Wage Board had the power and authority also to fix the
scales of wages and to give retrospective operation to its decision, and that the
financial position of the petitioners was not such as to lead to their collapse as a result

of the impact of the provisions of the impugned Act and the decision of the Wage
Board.
49. The petitioners in Petitions Nos. 91 of 1957, 99 of 1957, 100 of 1957, 101 of 1957
and 103 of 1957 also field petitions for special leave to appeal against the decision of
the Wage Board being Petitions Nos. 323, 346, 347, 348 and 359 of 1957 respectively
and this Court granted the special leave in all these petitions under Art. 136 of the
Constitution subject to the question of the maintainability of the appeals being open to
be urged at the hearing. civil Appeals arising out of these special leave petitions were
ordered to be placed along with the Writ Petitions aforesaid for hearing and final
disposal and civil Appeals Nos. 699 of 1957, 700 of 1957, 701 of 1957, 702 of 1957
and 703 of 1957 arising there from thus came up for hearing and final disposal before
us along with the Writ Petitions under Art. 32 mentioned above. We took up the
hearing of the Writ Petitions first as they were more comprehensive in scope than the
civil Appeals filed by the respective parties and heard counsel at considerable length on
the questions arising for our determination therein.
50. Before we discuss the vires of the impugned Act and the decision of the Wage
Board, it will be appropriate at this juncture to clear the ground by considering the
principles of wage fixation and the machinery employed for the purpose in various
countries. Broadly speaking wages have been classified into three categories, viz., (1)
the living wage, (2) the fair wage and (3) the minimum wage.
51. The concept of the living wage :
"The concept of the living wage which has influenced the fixation of wages,
statutorily or otherwise, in all economically advanced countries is an old and
well-established one, but most of the current definitions are of recent origin.
The most expressive definition of the living wage is that of Justice Higgins of the
Australian Commonwealth Court of Conciliation in the Harvester case. He
defined the living wage as one appropriate for "the normal needs of the average
employee, regarded as a human being living in a civilized community". Justice
Higgins has, at other places, explained what he meant by this cryptic
pronouncement. The living wage must provide not merely for absolute
essentials such as food, shelter and clothing but for "a condition of frugal
comfort estimated by current human standards." He explained himself further
by saying that it was a wage "sufficient to insure the workmen food, shelter,
clothing frugal comfort, provision for evil days, etc., as well as regard for the
special skill of an artisan if he is one". In a subsequent case he observed that
"treating marriage as the usual fate of adult men, a wage which does not allow
of the matrimonial condition and the maintenance of about five persons in a
home would not be treated as a living wage". According to the South Australian
Act of 1912, the living wage means "a sum sufficient for the normal and
reasonable needs of the average employee living in a locality where work under
consideration is done or is to be done." The Queensland Industrial conciliation
and Arbitration Act provides that the basic wage paid to an adult male employee
shall not be less than is "sufficient to maintain a well-conducted employee of
average health, strength and competence and his wife and a family of three
children in a fair and average standard of comfort, having regard to the
conditions of living prevailing among employees in the calling in respect of
which such basic wage is fixed, and provided that in fixing such basic wage the
earnings of the children or wife of such employee shall not be taken into

account". In a Tentative Budget Inquiry conducted in the United States of

America in 1919 the Commissioner of the Bureau of Labour Statistics analysed
the budgets with reference to three concepts, viz.,
(i) the pauper and poverty level,
(ii) the minimum of subsistence level, and,
(iii) the minimum of health and comfort level,
and adopted the last for the determination of the living wage. The Royal
Commission on the Basic Wage for the Commonwealth of Australia approved of
this course and proceeded through norms and budget enquiries to ascertain
what the minimum of health and comfort level should be. The commission
quoted with approval the description of the minimum of health and comfort level
in the following terms :
"This represents a slightly higher level than that of subsistence, providing not only for
the material needs of food, shelter, and body covering, but also for certain comforts,
such as clothing sufficient for bodily comfort, and to maintain the wearer's instinct of
self-respect and decency, some insurance against the more important misfortunes-death,
disability and fire-good education for the children, some amusement, and some
expenditure for self-development."
Writing practically in the same language, the United Provinces Labour Enquiry
Committee classified levels of living standard in four categories, viz.,
(i) the poverty level,
(ii) the minimum subsistence level,
(iii) the subsistence plus level and
(iv) The Comfort Level,
and chose the subsistence plus level as the basis of what it called the "minimum
living wage". The Bombay Textile labour Inquiry Committee, 1937 considered
the living wage standard at considerable length and, while accepting the
concept of the living wage as described above, observed as follows :
".... what we have to attempt is not an exact measurement of a well-defined concept.
Any definition of a standard of living is necessarily descriptive rather than logical. Any
minimum, after all, is arbitrary and relative. No completely objective and absolute
meaning can be attached to a term like the "living wage standard" and it has necessarily
to be judged in the light of the circumstances of the particular time and country."
The Committee then proceeded through the use of norms and standard budgets
to lay down what the basic wage should be, so that it might approximate to the
living wage standard "in the light of the circumstances of the particular time and
country."

The Minimum Wage-Fixing Machinery published by the I.L.O. has summarised

these views as follows :
"In different countries estimates have been made of the amount of a living
wage, but the estimates vary according to the point of view of the investigator.
Estimates may be classified into at least three groups :
(1) the amount necessary for mere subsistence, (2) the amount necessary for
health and decency, and (3) the amount necessary to provide a standard of
comfort."
It will be seen from this summary of the concepts of the living wage held in
various parts of the world that there is general agreement that the living wage
should enable the male earner to provide for himself and his family not merely
the bare essentials of food, clothing and shelter but a measure of frugal comfort
including education for the children, protection against ill-health, requirements
of essential social needs, and a measure of insurance against the more
important misfortunes including old age." (Report of the Committee on Fair
Wages (1947 to 1949), pp. 5-7, paras 6 & 7).
52. Article 43 of our Constitution has also adopted as one of the Directive principles of
State Policy that :
"The State shall endeavour to secure, by suitable legislation or economic
organisation or in any other way, to all workers, agricultural, industrial or other
wise, work, as living wage, conditions of work ensuring a decent standard of life
and full enjoyment of leisure and social and cultural opportunities....."
This is the ideal to which our social welfare State has to approximate in an attempt to
ameliorate the living conditions of the workers.
53. The concept of the minimum wage :
"The International Convention of 1928 prescribes the setting up of minimum
wage-fixing machinery in industries in which "no arrangements exist for the
effective regulation of wages by collective agreement or otherwise and wages
are exceptionally low"....
"As a rule, though the living wage is the target, it has to be tempered, even in advanced
countries, by other considerations, particularly the general level of wages in other
industries and the capacity of industry to pay. This view has been accepted by the
Bombay Textile Labour Inquiry Committee which says that "the living wage basis affords
an absolute external standard for the determination of the minimum" and that "where a
living wage criterion has been used in the giving of an award or the fixing of a wage, the
decision has always been tempered by other considerations of a practical character."
"In India,
generally
minimum
described
minimum

however, the level of the national income is so low at present that it is

accepted that the country cannot afford to prescribe by law a
wage which would correspond to the concept of the living wage as
in the preceding paragraphs. What then should be the level of
wage which can be sustained by the present stage of the country's

economy ? Most employers and some Provincial Governments consider that the
minimum wage can at present be only a bare subsistence wage. In tact, even
one important All-India organisation of employees has suggested that "a
minimum wage is that wage which is sufficient to cover the bare physical needs
of a worker and his family." Many others, however,.... consider that a minimum
wage should also provide for some other essential requirements such as a
minimum of education, medical facilities and other amenities. We consider that
a minimum wage must provide not merely for the bare sustenance of life but for
the preservation of the efficiency of the worker. For this purpose, the minimum
wage must also provide for some measure of education, medical requirements,
and amenities." (Report of the Committee on Fair Wages, pp. 7-9, paras, 8-10).
54. This is the concept of the "minimum wage" adopted by the Committee on Fair
Wages. There are however variations of that concept and a distinction had been drawn,
for instance, in Australian industrial terminology between the basic wage and the
minimum wage, "The basic wage there approximates to a bare minimum subsistence wage and
no normal adult male covered by an award is permitted to work a full standard
hours week at less than the assessed basic wage rate. The basic wage is
expressed as the minimum at which normal adult male unskilled workers may
legally be employed, differing from the amounts fixed as legal minima for skilled
and semiskilled workers, piece workers and casual workers respectively..... The
minimum wage is the lowest rate at which members of a specified grade of
workers may legally be employed." (O.D.R. Feenander Industrial Regulation in
Australia (1947), Ch. XVII, P. 155).
55. There is also a distinction between a bare subsistence or minimum wage and a
statutory minimum wage. The former is a wage which would be sufficient to cover the
bare physical needs of a worker and his family, that is, a rate which has got to be paid
to the worker irrespective of the capacity of the industry to pay. If an industry is
unable to pay to its workmen at least a bare minimum wage it has no right to exist. As
was observed by us in Messrs. Crown Aluminium Works v. Their Workmen
MANU/SC/0082/1957 : (1958)ILLJ1SC :
"It is quite likely that in under-developed countries, where unemployment
prevails on a very large scale, unorganised labour may be available on
starvation wages, but the employment of labour on starvation wages cannot be
encouraged or favoured in a modern democratic welfare state. If an employer
cannot maintain his enterprise without cutting down the wages of his employees
below even a bare subsistence or minimum wage, he would have no right to
conduct his enterprise on such terms."
The statutory minimum wage however is the minimum which is prescribed by the
statute and it may be higher than the bare subsistence or minimum wage, providing
for some measure of education, medical requirements and amenities, as contemplated
above. (Cf. also the connotation of "minimum rate of wages" in s. 4 of the Minimum
Wages Act, 1948 (XI of 1948)).
56. The concept of the fair wage :

"The payment of fair wages to labour is one of the cardinal recommendations of

the Industrial Truce Resolution...... Marshall would consider the rate of wages
prevailing in an occupation as "fair" if it is "about on level with the average
payment for tasks in other trades which are of equal difficulty and
disagreeableness, which require equally rare natural abilities and an equally
expensive training." Prof. Pigou would apply two degrees of fairness in judging a
wage rate, viz., "fair in the narrower sense" and "fair in the wider sense". A
wage rate, in his opinion, is "fair in the narrower sense" when it is equal to the
rate current for similar workmen in the same trade and neighbourhood and "fair
in the wider sense" when it is equal to the predominant rate for similar work
throughout the country and in the generality of trades."
..............................................
"The Indian National Trade Union Congress.... is of the opinion that the wage
fixed by collective agreements, arbitrators, and adjudicators could at best be
treated, like the minimum wage, as the starting point and that wherever the
capacity of an industry to pay a higher wage is established, such a higher wage
should be deemed to be the fair wage. The minimum wage should have no
regard to the capacity of an industry to pay and should be based solely on the
requirements of the worker and his family. "A fair wages" is, in the opinion of
the Indian National Trade Union Congress, "a step towards the progressive
realisation of a living wage". Several employers while they are inclined to the
view that fair wages would, in the initial stages, be closely related to current
wages, are prepared to agree that the prevailing rates could suitably be
enhanced according to the capacity of an industry to pay and that the fair wage
would in time progressively approach the living wage. It is necessary to quote
one other opinion, viz., that of the Government of Bombay, which has had
considerable experience in the matter of wage regulation. The opinion of that
Government is as follows :
"Nothing short of a living wage can be a fair wage if under competitive
conditions an industry can be shown to be capable of paying a full living wage.
The minimum wage standards set up the irreducible level, the lowest limit or the
floor below which no workers shall be paid... A fair wage is settled above the
minimum wage and goes through the process of approximating towards a living
wage."
While the lower limit of the fair wage must obviously be the minimum wage, the
upper limit is equally set by what may broadly be called the capacity of industry
to pay. This will depend not only on the present economic position of the
industry but on its future prospects. Between these two limits the actual wages
will depend on a consideration of the following factors and in the light of the
comments given below :
(i) the productivity of labour; (ii) the prevailing rates of wages in the same or
similar occupations in the same or neighbouring localities; (iii) the level of the
national income and its distribution; and (iv) the place of the industry in the
economy of the country.".............(Report of the Committee on Fair Wages pp.
4, 9-11, paras, II-15).

57. It will be noticed that the "fair wage" is thus a mean between the living wage and
the minimum wage and even the minimum wage contemplated above is something
more than the bare minimum or subsistence wage which would be sufficient to cover
the bare physical needs of the worker and his family, a wage which would provide also
for the preservation of the efficiency of the worker and for some measure of education,
medical requirements and amenities.
58. This concept of minimum wage is in harmony with the advance of thought in all
civilised countries and approximates to the statutory minimum wage which the State
should strive to achieve having regard to the Directive Principle of State Policy
mentioned above.
59. The enactment of the Minimum Wages Act, 1948, affords an illustration of an
attempt to provide a statutory minimum wage. It was an Act to provide for fixing
minimum rates of wages in certain employments and the appropriate Government was
thereby empowered to fix different minimum rates of wages for (i) different scheduled
employments; (ii) different classes of work in the same scheduled employment; (iii)
adults, adolescents, children and apprentices; and (iv) different localities; and (v) such
minimum rates of wages could be fixed by the hour, by the day or by any larger period
as may be prescribed.
60. It will also be noticed that the content of the expressions "minimum wage" "fair
wage" and "living wage" is not fixed and static. It varies and is bound to vary from
time to time. With the growth and development of national economy, living standards
would improve and so would our notions about the respective categories of wages
expand and be more progressive.
61. It must however be remembered that whereas the bare minimum or subsistence
wage would have to be fixed irrespective of the capacity of the industry to pay, the
minimum wage thus contemplated postulates the capacity of the industry to pay and
no fixation of wages which ignores this essential factor of the capacity of the industry
to pay could ever be supported.
62. Fixation of Scales of Wages :A question arises as to whether the fixation of rates of wages would also include the
fixation of scales of wages. The rates of wages and scales of wages are two different
expressions with two different connotations. "Wages" have been defined in the
Industrial Disputes Act, 1947, to mean
"all remuneration capable of being expressed in terms of money, which would, if
the terms of employment, express or implied, were fulfilled, be payable to a
workman in respect of his employment or of work done in such employment."
Similar definition of "wages" is to be found in the Minimum Wages Act, 1948, also.
They would therefore include all payments made from time to time to a workman
during the course of his employment as such and not merely the starting amount of
wages at the beginning of his employment. The dictionary meaning of the term in the
Concise Oxford Dictionary is also the same, viz.,
"Amount paid periodically, especially by the day or week or month, for time
during which workman or servant is at employer's disposal".

The use of the word "rate" in the expression "rates of wages" has not the effect of
limiting the connotation of the term. "Rate" is described in the Concise Oxford
Dictionary as
"a statement of numeral proportion prevailing or to prevail between two sets of things
either or both of which may be unspecified, amount, etc., mentioned in one case for
application to all similar ones, standard or way of reckoning (measure of) value, etc."
In chambers' Twentieth Century Dictionary its meaning is given as : estimated amount
or value (Shakespeare), and also "amount determined according to a rule or basis; a
standard; a class or rank; manner or mode".
63. "Rates of wages" therefore mean the manner, mode or standard of the payments
of remuneration for work done whether at the start or in the subsequent stages. Rates
of wages would thus include the scales of wages, and there is no antithesis between
the two expressions, the expression being applicable both to the initial as well as
subsequent amounts of wages. It is true that in references made to Industrial Tribunals
fixing of scales of pay has been specifically mentioned, e.g., in the Industrial dispute
between certain banking companies and their workers. But that is not sufficient to
exclude the "scales of wages" from being comprised within the larger connotation of
the expression "rates of wages" which is capable of including the scales of wages also
within its ambit. Even without the specific mention of the scales of wages it would be
open to fix the same in an inquiry directed towards the fixation of the rates of wages.
64. It is also true that Industrial Tribunals have laid down that the increments of wages
or scales of remuneration could only be fixed having due regard to the capacity of the
industry to pay. In the case of the Britannia Building & Iron Co. Ltd. [1954] 1 L.L.J.
651 :
"As time scales increase the wage bill year after year which is reflected in the
cost of production, such scales should not, in our opinion, be forced upon the
employer of industrial labour unless it is established that the employer has the
present capacity to pay and its financial capacity can be counted upon in future.
Thus, both financial ability and stability are requisite conditions."
64a. Similar observations were made in the case of the Union Drug Co. Ltd. [1954] 1
L.L.J. 766 :
"For before incremental scales can be imposed by adjudication, it is essential to
see whether employer would be able to bear its burden. The financial condition
of the Company must be such as to lead to the conclusion that it would be able
to pay the increments year by year for an appreciable number of years, for
wage scales when settled are intended to be long term schemes."
65. This consideration however of the capacity of the industry to pay does not militate
against the construction adopted above that rates of wages do comprise within their
scope the scales of wages also and it therefore follows that the fixation of rates of
wages would also include the fixation of scales of wages. As a matter of fact, the
provisions in regard to the statutory minimum wages in Queensland, Western
Australia, and Tasmania prescribe scales of wages which are graduated according to
age and experience.

66. The capacity of the industry to pay being thus one of the essential ingredients in
the fixation of wages, it is relevant to consider the different methods of measuring
such capacity.
67. The capacity of the industry to pay :
The capacity of industry to pay can mean one of three things, viz. :
(i) the capacity of a particular unit (marginal, representative or average) to pay,
(ii) the capacity of a particular industry as a whole to pay or (iii) the capacity of
all industries in the country to pay.
"Ideas on this subject have varied from country to country. In New Zealand and
Australia the capacity to pay is calculated with reference to all industries in the
country and no special concessions are shown to depressed industries. In
Australia the Arbitration Court considered that "in view of the absence of clear
means of measuring the general wage-paying capacity of total industry, the
actual wage upon which well-situated labourers were at the time maintaining
the average family unit could justifiably be taken as the criterion of what
industry could probably pay to all labourers". This is at best a secondary
definition of capacity, for it could only serve to show that certain industries or
units could afford to pay as much as certain others."
"The Bombay Textile Labour Inquiry Committee came to conclusion that it was
not possible to define the term "capacity to pay" in a precise manner and
observed as follows :
"The capacity to pay a wage cannot obviously be determined merely by the
value of production. There is the important question of determining the charges
that have to be deducted before arriving at the amount that can be paid in
wages. The determination of each of a large number of charges involves
difficulties, both theoretical and practical. Interest charges, remuneration to
salaried staffs and managing agents, sales commissions, profits, all these
cannot for any large organised industry be taken as pre-determined in a fixed
manner. Neither is it to be expected that representatives of Labour would accept
without challenge the current levels of expenditure on these items-apart from
the consideration whether the industry has been reasonably well managed or
not."
"That Committee was, however, of the opinion that capacity should not be
measured in terms of the individual establishment and that "the main criterion
should be the profit making capacity of the industry in the whole province....."
"In determining the capacity of an industry to pay it would be wrong to take the
capacity of a particular unit or the capacity of all industries in the country. The
relevant criterion should be the capacity of a particular industry in a specified
region and, as far as possible, the same wages should be prescribed for all units
of that industry in that region. It will obviously not be possible for the wage
fixing board to measure the capacity of each of the units of an industry in a
region and the only practicable method is to take a fair cross-section of that
industry." (Report of the Committee on Fair Wages, pp. 13-15, paras, 21 & 23).

68. It is clear therefore that the capacity of an industry to pay should be gauged on an
industry-cum-region basis after taking a fair cross-section of that industry. In a given
case it may be even permissible to divide the industry into appropriate classes and
then deal with the capacity of the industry to pay class-wise.
69. As regards the measure of the capacity again there are two points of view in
regard to the same :
96. "One view is that the wage-fixing machinery should, in determining the
capacity of industry to pay, have regard to
(i) a fair return on capital and remuneration to management; and
(ii) a fair allocation to reserves and depreciation so as to keep the industry in a
healthy condition.
The other view is that the fair wage must be paid at any cost and that industry
must go on paying such wage as long as it does not encroach on capital to pay
that wage...................
................................................................
The objective is not merely to determine wages which are fair in the abstract,
but to see that employment at existing levels is not only maintained but, if
possible, increased. From this point of view, it will be clear that the level of
wages should enable the industry to maintain production with efficiency. The
capacity of industry to pay should, therefore, be assessed in the light of this
very important consideration. The wages board should also be charged with the
duty of seeing that fair wages so fixed for any particular industry are not very
much out of lien with wages in other industries in that region. Wide disparities
would inevitably lead to movement of labour, and consequent industrial unrest
not only in the industry concerned but in other industries." (Report of the
Committee on Fair Wages, p. 14, para. 24).
70. The main consideration which is to be borne in mind therefore is that the industry
should be able to maintain production with efficiency and the fixation of rates of wages
should be such that there are no movements from one industry to another owing to
wide disparities and employment at existing levels is not only maintained, but if
possible, increased.
71. Different tests have been suggested for measuring the capacity of the industry to
pay : viz :
(1) The selling price of the product;
(2) The volume of the output;
(3) the profit and loss in the business;
(4) the rates which have been agreed to by a large majority of the employers;

(5) the amount of unemployment brought about or likely to be brought about by

the imposition of the increased wage, etc.
72. They are however not quite satisfactory. The real measure of the capacity of the
industry to pay has been thus laid down in "Wages & the State" by E.M. Burns at p.
387 :
"It would be necessary to inquire inter alia into the elasticity of demand for the
product, for on this depends the extent to which employers could transfer the
burden of the increased wage to consumers. It would also be necessary to
inquire how far the enforced payment of a higher wage would lead employers to
tighten up organisation and so pay the higher wage without difficulty.
........................................................
Similarly it frequently happens that an enhanced wage increased the efficiency
of the lowest paid workers; the resulting increase in production should be
considered in conjunction with the elasticity of demand for the commodity
before the ability of a trade to pay can fairly be judged.
........................................................
Again unless what the trade can bear be held to imply that in no circumstances
should the existing rate of profit be reduced, there is no reason why attempts
should not be made to discover how far it is possible to force employers to bear
the burden of an increased rate without driving them out of business. This
would involve an investigation into the elasticity of supply of capital and
organising ability in that particular trade, and thus an inquiry into the rate of
profits in other industries, the case with which transferences might be made,
the possibility of similar wage regulation extending to other trades, and the
probability of the export of capital and organising ability etc."
73. The principles which emerge from the above discussion are :
(1) that in the fixation of rates of wages which include within its compass the
fixation of scales of wages also, the capacity of the industry to pay is one of the
essential circumstances to be taken into consideration except in cases of bare
subsistence or minimum wage where the employer is bound to pay the same
irrespective of such capacity;
(2) that the capacity of the industry to pay is to be considered on an industrycum-region basis after taking a fair cross section of the industry; and
(3) that the proper measure for gauging the capacity of the industry to pay
should take into account the elasticity of demand for the product, the possibility
of tightening up the organisation so that the industry could pay higher wages
without difficulty and the possibility of increase in the efficiency of the lowest
paid workers resulting in increase in production considered in conjunction with
the elasticity of demand for the product - no doubt against the ultimate
background that the burden of the increased rate should not be such as to drive
the employer out of business.

74. These are the principles of fixation of rates of wages and it falls now to be
considered what is the machinery employed for such fixation.
75. The machinery for fixations of wages :
The fixation of wages may form the subject matter of reference to industrial
tribunals or similar machinery under the Labour Relations Law. But this
machinery is designed for the prevention and settlement of industrial disputes
which have either arisen or are apprehended, disputes relating to wages being
one of such disputes. The ensuring of an adequate wage is however a distinctive
objective and it requires the setting up of some kind of wage fixing board,
whether they be trade boards or general boards. It is seldom that legislative
enactments themselves fix the rates of wages, though a few such instances are
known. This method of regulation of wages has now become obsolete in view of
its inflexibility." (The Report of the Committee on Fair Wages, p. 26, para 49).
"The Constitution of Boards falls naturally into two main groups. On the one
hand, there are those not representatives of one but of all trades, workers in
general and employers in general being represented. This group includes among
others the Industrial Welfare Commission of Texas, consisting of the
Commissioner of labour, the representative of employers of labour on the
Industrial Accidents, Board and the State Superintendent of Public Instruction;
the Minimum Wage Board of Manitoba, composed of two representatives of
employers, and two of workers (one of each to be a woman) and one
disinterested person; and the South Australian board of Industry, consisting of a
President and four Commissioners, two of whom are to be nominated by the
South Australian Employers' Federation and two by the United Trades and
Labour Council of the State. On the other hand are those Boards representative
of one trade only or of a part of a trade, or of a group of allied trades. An
attempt is made to obtain a body of specialists and the membership of the
Board reflects this intention. It will contain an equal number of representatives
of employers and workers, together with an impartial chairman, and in some
cases members of the public as well. Of this type are the British Trade Boards;
the South Australian, Victorian and Tasmanian Wages Boards; and the Advisory
or Wages Boards set up by many of the Central Commissioners in the United
States and Canada." ("Wages & The State" by E.M. Burns at p. 187).
76. The following is a brief description of the composition and working of wages boards
in the United Kingdom :
"In the United Kingdom where trade boards, and not general boards, have been
set up, the Minister of Labour appoints a board if he is satisfied that no
adequate machinery exists in a particular trade or industry for effectively
regulation the wages and that it is necessary to provide such machinery. The
trade board is a fairly large body consisting of an equal number of
representatives of employers and workers with a few independent members
including the chairman. Although appointments are made by the Minister, the
representatives of employers and workers are appointed on the
recommendation of the associations concerned. The trade board publishes a
notice announcing its tentative proposals for the fixation or revision of a wage
rate and invites objections or comments. After a two months' notice the board
takes a final decision and submits a report to the Minister who must confirm the

rate unless, for any special reasons, he returns the recommendations to the
board for further consideration." (The Report of the Committee on Fair Wages,
pp. 25-26, para 50).
77. The Wage Council Act, 1945 (8 & 9 Geo. VI, ch. 17) provides for the establishment
of Wage Councils. The Minister of Labour and National Service has the power to make
a wages council order after considering objections made with respect to the draft order
on behalf of any person appearing to him to be affected. The Wage Council makes such
investigation as it thinks fit and publishes notice of the wage regulation proposals and
parties affected are entitled to make written representations with respect to these
proposals which representations the Wage Council considers. The Wage Council can
make such further enquiries as it considers necessary and thereafter submit the
proposals to the Minister either without amendment or with such amendments as it
thinks fit in regard to the same. The Minister considers these wage regulations
proposals and makes an order giving effect to the proposals from such date as may be
specified in the order. Remuneration fixed by the wage regulation orders is called
statutory minimum remuneration.
78. There are also similar provisions under the Agricultural Wage Regulation Act, 1924
(14 & 15 Geo. V, ch. 37) in regard to the regulation of wages by Agricultural Wages
Committees and the Agricultural Wages Board.
79. In Canada and Syria a board consists of generally 5 members, but in china the size
of the board varies from 9 to 15. In all these countries employers and workers obtain
equal representation. In Canada the boards are required to enquiry into the conditions
of work and wages. In some provinces the boards are authorised to issue orders or
decrees while in others the recommendations have to be submitted to the Lieutenant
Governor who issues orders.
"In the United States of America some state laws prescribe that the
representatives of employers and workers should be elected, but in the majority
of States the administrative authorities are authorised to make direct
appointments. The boards so set up are empowered to make enquiries, to call
for records, to summon witnesses and to make recommendations regarding
minimum wages. Some of the American laws lay down a time-limit for the
submission of proposals. The administrative authority may accept or reject a
report and refer it back for reconsideration, or form a new board for considering
the matter afresh. Some of the laws provide that if the report is not accepted,
the matter must be submitted again to the same wages board or a new wages
board." (Report of the Committee on Fair Wages, p. 26, para. 50).
80. The whole procedure for the determination of wages in the United States of
America is described in two decisions of the Supreme Court : (i) Interstate Commerce
Com. v. Louisville & M.R. [1912] 227 U.S. 88 and (ii) Opp. Cotton Mills Inc. v.
Administration. [1940] 312 U.S. 126
81. The Fair Labour Standards Act of 1938 in the U.S.A. provides for convening by the
Administrator of industry committees for each such industry which from time to time
recommend the minimum rate or rates of wages to be paid by the employers. The
committee recommends to the administrator the highest minimum wage rates for the
industry which it determines, having due regard to economic and competitive
conditions, will not substantially curtail employment in the industry. Wage orders can

thereupon be issued by the administrator after due notice to all interested persons and
giving them an opportunity to be heard.
82. In Australia also there are provisions in various states for the appointment of wage
boards the details of which we need not go into. We may only refer to the wage board
system in Victoria which was established in 1896 as a means of directly regulating
wages and working conditions in industries subject to "sweating", and was not
intended to control industrial relations as such.
"Under the Factories and Shops Act, 1924, wage boards are set up for the
various industries with a court of Industrial Appeals to decide appeals from a
determination of a wage board. Industries for which there is no special wage
board are regulated by the General Wages Board, which consists of two
employers' representatives nominated by the Victorian Chamber of
Manufacturers, two employees' representatives nominated by the Melbourne
Trade Hall Council, and a chairman, agreed upon by these four members or
nominated by the minister for labour." (Kenneth F. Walker, "Industrial Relations
in Australia").
83. It may be noted that in the majority of cases these wage boards are constituted of
equal number of representatives of employers and employees and one or more
independent persons, one of whom is appointed the chairman.
84. The position in India has been thus summarised :
"The history of wage-fixation in India is a very recent one. There was practically
no effective machinery until the last war for the settlement of industrial disputes
or the fixation of wages. The first important enactment for the settlement of
disputes was the Bombay Industrial Disputes Act, 1938 which created an
Industrial Court. The Act had limited application and the Court was not charged
with the responsibilities of fixing and regulating wages. During the war State
intervention in the settlement of industrial disputes became necessary, and
numerous adjudicators were appointed to adjudicate on trade disputes under
the Defence of India Rules. The Industrial Disputes Act, 1947, is the first
effective measure of All-India applicability for the settlement of industrial
disputes. Under this Act various Tribunals have passed awards regulating wages
in a number of important industries.
"The first enactment specifically to regulate wages in this country is the
Minimum Wages Act, 1948. This Act is limited in its operation to the so-called
sweated industries in which labour is practically unorganised and working
conditions are far worse than in organised industry. Under that Act the
appropriate Government has either to appoint a Committee to hold enquiries
and to advise it in regard to the fixation of minimum rates of wages, or, if it
thinks that it has enough material on hand, to publish its proposals for the
fixation of wages in the official gazette and to invite objections. The appropriate
Government finally fixes the minimum rates of wages on receipt of the
recommendations of the Committee or of objections from the public. There is no
provision for any appeal. There is an advisory board in each province to coordinate the work of the various committees. There is also a Central Advisory
Board to co-ordinate the work of provincial boards. Complaints of non-payment
of the minimum rates of wages fixed by Government may be taken to claims

authorities. Breaches of the Act are punishable by criminal courts." (Report of

the Committee on Fair Wages, pp. 26-27, para. 51, 52).
85. It is worthy of note that these committee, sub-committees, advisory board and
central advisory board are to consist of persons to be nominated by the Central
Government representing employers and employees in the scheduled employments,
who shall be equal in number, and independent persons not exceeding one-third of its
total number of members; one of such independent persons shall be appointed the
chairman by the appropriate Government.
"Under a recent amendment to the Bombay Industrial Relations Act, 1946, wage
boards can be set up in the Province of Bombay either separately for each
industry or for a group of industries. The wage board is to consist of an equal
number of representatives of employers and employees and some independent
persons including the Chairman, all of whom are nominated by the Government.
The board decides disputes relating to reduction in the number of persons
employed, rationalisation or other efficiency systems of work, wages and the
period and mode of payment, hours of work and leave with or without pay.
When a matter has been referred to a wages board, no proceedings may be
commenced or continued before a conciliator, conciliation board, labour court or
industrial court. The wages boards are authorised to from committees for local
areas for the purpose of making enquiries. It is obligatory on Government to
declare the decisions of the wages boards binding, but where Government feel
that it will be inexpedient on public grounds to give effect to the whole or any
part of the decision, the matter has to be placed before the Provincial
Legislature, the decision of which will be binding. There is provision for the filing
of appeals from the decisions of the wages boards to the Industrial Court."
(Report of the Committee on Fair Wages, p. 27, para. 52).
Those wage boards moreover are under the superintendence of the Industrial Court.
86. We may also notice here Recommendation 30, being the recommendation
concerning the application of Minimum Wage-Fixing Machinery made by the
International Labour Office, 1949 (Extracts from Conventions & Recommendations,
1919-49, published by International Labour Office (1949) :
"(1) The minimum wage-fixing machinery whatever form it may take (for
instance, trade board for individual trades, tribunals), should operate by way of
investigation into the relevant conditions in the trade or part of trade concerned
and consultation with the interests primarily and principally affected, that is to
say, the employers and workers in the trade or part of trade, whose views on all
matters relating to the fixing of the minimum rate of wages should in any case
be solicited and be given full and equal consideration.
(2)(a) To secure greater authority for the rates that may be fixed, it should be
the general policy that the employers and workers concerned through
representatives equal in number or having equal voting strength, should jointly
take a direct part in the deliberations and decisions of the wage-fixing body; in
any case, where representation is accorded to one side, the other side should be
represented on the same footing. The wage-fixing body should also include one
or more independent persons whose votes can ensure effective decisions being
reached in the event of the votes of the employers' and workers'

representatives being equally divided. Such independent persons should, as far

as possible, be selected in agreement with or after consultation with the
employers' and workers' representatives on the wage fixing body.
"(b) In order to ensure that the employers' and workers' representatives shall
be persons having the confidence of those whose interests they respectively
represent, the employers and workers concerned should be given a voice as far
as is practicable in the circumstances in the selection of their representatives,
and if any organisations of the employers and workers exist these should in any
case be invited to submit names of persons recommended by them for
appointment on the wage-fixing body.
(c) The independent person or persons mentioned in paragraph (a) should be
selected from among men or women recognized as possessing the necessary
qualifications for their duties and as being dissociated from any interest in the
trade or part of trade concerned which might be calculated to put their
impartiality in question."
................................................
87. The following appraisement of the system of establishing trader boards by the
committee on fair wages may be noted in this context :
"A trade board has the advantage of expert knowledge of the special problems
of the trade for which it has been set up and is, therefore, in apposition to
evolve a scheme of wages suited to the conditions obtaining in the trade. The
system, however, suffers from the limitation that there is no one authority to
co-ordinate the activities of the various boards with the result that wide
disparities may arise between the scales sanctioned for similar industries. A
general board ensures due co-ordination but is far less competent than a trade
board to appreciate the special problems of each trade. The Bombay Textile
Labour Inquiry Committee have stated in their report that the trade board
system is the best suited to Indian conditions, particularly because the very
manner of functioning of trade boards is such that wages are arrived at largely
by discussion and conciliation and that it is only in exceptional cases that the
deciding votes of the Chairman and of the independent members have to be
given." (Report of Committee on Fair Wages, p. 27, para. 53).
88. It is clear therefore that a wage board relating to a particular trade or industry
constituted of equal number of representatives of employers and employees, with an
independent member or members one of whom is appointed a chairman, is best
calculated to arrive at the proper fixation of wages in that industry.
89. Principles for guidance. If a wage board is thus appointed it is necessary that the
principles for its guidance in wage fixation should also be laid down by the appointing
authority. The following passage from "Minimum Wage - An International Survey I.L.O. Geneva, 1939, summarises the position as it obtains in various countries :
"As will be clear from the analysis of legislation given earlier in this monograph,
the fundamental principle of the Australian system, both in the Commonwealth
and in the State sphere, is that of the living wage. Even in those cases where
the law contains no reference to this principle its importance is in practice

great... As a criterion of wage regulation the principle of the living wage is

however no more than a vague and general indication of the purpose of the
legislation. It leaves the broadest possible discretion in practice to the wage
fixing tribunals. In the case of the Commonwealth laws indeed the Court is left
completely free to determine the principles on which the basic or living wage is
to be assessed. Under certain of the State laws specific, though limited,
directions are given. Thus in Queensland there is a statutory definition of the
family unit on whose requirements the basic wage is to be calculated. In certain
cases the general emphasis on the criterion of the workers' needs is
supplemented by directions to fix wage rates that will be "fair and reasonable"
and in doing so to take into account the average standard of comfort being
enjoyed by workers in the same locality or in similar occupations. Such
references, it may be noted, involve at least an indirect allusion to general
economic conditions and the capacity of industry to pay, since the standards
currently enjoyed are closely related to these factors. In at least one case (in
Queensland) the Court is specifically directed to examine the probable effects of
its decisions upon industry and the community in general."
90. In the United States of America the Fair Labour Standards Act of 1938 enunciates
certain principles for the guidance of the industry committees which are convened by
the Administrator under the Act :
"The committee shall recommend to the Administrator the highest minimum
wage rates for the industry which it determines, having due regard to economic
and competitive conditions, will not substantially curtail employment in the
industry" and further "in determining whether such classifications should be
made in any industry in making such classification, and in determining the
minimum wage rates for such classification, no classification shall be made, and
no minimum wage rate shall be fixed, solely on a regional basis, but the
industry committee and the Administrator shall consider among other relevant
factors the following.
(1) competitive conditions as affected by transportation, living, and production
cost;
(2) the wages established for work of like or comparable character by collective
labour agreements negotiated between employers and employees by
representatives of their own choosing; and
(3) the wages paid for work of like or comparable character by employers who
voluntarily maintain minimum wage standards in the industry.
No classification shall be made under this section on the basis of age or sex."
91. The normal rule however is to leave a wide discretion to the tribunals responsible
for the fixation of wages inasmuch as they being constituted of equal numbers of
representatives of the employers and the employees are best calculated to appreciate
the whole position and arrive at correct results.
92. Procedure to be followed : The procedure to be followed by the wage boards is
equally fluid. The wage councils and the central co-ordinating committees appointed
under the Wages Council Act, 1945, as also the agricultural wages committees and the

agricultural boards appointed under the Agricultural Wages Regulation Act, 1924, in
the United Kingdom each of them subject, of course, to the regulations which might be
made by the minister as to the meetings and procedure of these bodies including
quorum, etc., is entitled to regulate its procedure in such manner as it thinks fit.
93. The wage boards in Australia
"are called together informally by the chairman upon request of either party. No
legal formalities or procedure need be complied with. Meetings of wage boards
are held in the offices of the Department of Labour an officer of the department
acting as secretary." (Kenneth F. Walker "Industrial Relations Australia", p. 24).
94. The wage boards thus constituted are left to regulate their procedure in such
manner as they think fit and it is not necessary that any regulation should be made in
regard to the procedure to be adopted by them in the conduct of the enquiry before
them.
95. There are, however, a number of safeguards which have been provided in order to
protect the interests of the parties concerned. The wages councils established by the
Minister of Labour and National Services in the United Kingdom are so established after
considering objections from persons appearing to be affected thereby and wage
regulation orders are also recommended by these councils after considering the written
representations in regard to their proposals which are duly published in the manner
prescribed. These recommendations are again in their turn considered by the minister
and it is only after the minister is satisfied that these wage regulation orders are
promulgated, the minister having the power in proper cases to send the same back for
reconsideration by the wage councils. When these proposals are again submitted by
the wage council the same procedure is followed as in the case of original proposals
made by them.
96. The reports of the industry committees convened by the administrator in the
United States of America are subject to scrutiny by the administrator who gives notice
to all interested persons and gives them an opportunity of being heard in regard to the
same. It is only after this is done that he approves and carries into effect the
recommendations in these reports on his being fully satisfied that they are proper and
if he disapproves of these recommendations he again refers the matter to such
committees for further considerations and recommendations. The orders of the
administrator are again subject to review in the Circuit Court of Appeals in the United
States and further revision in the U.S. Supreme Court upon certiorari or certification.
97. As regards the determinations of the special boards in some of the States of the
Commonwealth of Australia appeals lie against the same to the court of industrial
appeals and they are also challengeable before the High Court.
98. Such safeguards are also provided in our Minimum Wages Act, 1948. Here the
work of the committees, sub-committees and advisory committees is co-ordinated by
advisory boards and the work of the advisory boards is co-ordinated by the central
advisory board which advises the Central Government in the matter of the fixing of the
minimum rates of wages and other matters under the Act and it is after the receipt of
such advice from the Central advisory board by the appropriate Government that the
latter takes action in the matter of fixation or revision of minimum rates of wages.
Where, however, the appropriate Government proposes to fix the minimum rates of

wages without reference

proposals by notification
be affected thereby and
representations received

to the various committees, or sub-committees, it publishes its

in the Official Gazette for the information of persons likely to
fixes the minimum rates of wages only after considering the
by it from the interested parties.

99. The wage boards appointed by the amended Bombay Industrial Relations Act,
1946, are subject to the appellate jurisdiction as well as supervisory jurisdiction of the
industrial courts in the State and parties affected by their decisions are entitled to file
appeals against the same in the industrial courts.
100. If these safeguards are provided against the determinations of the wage boards,
it will be really immaterial what procedure they adopt in the course of the proceedings
before them. They would normally be expected to adopt all procedure necessary to
gather sufficient data and collect sufficient materials to enable them to come to a
proper conclusion in regard to the matters submitted to them for their determination.
If however at any time they flouted the regulations prescribed in regard to the
procedure to be followed by them or in the absence of any such regulations adopted a
procedure which was contrary to the principles of natural justice their decision would
be vitiated and liable to be set aside by the appropriate authority.
101. Character of the functions performed :
141. There is considerable divergence of opinion in regard to the character of
the functions performed by these wage boards and a controversy has arisen as
to whether the functions performed by them are administrative, judicial or
quasi-judicial or legislative in character. The question assumes importance on
two grounds; viz., (i) whether the decisions of the wage boards are open to
judicial review and (ii) whether the principle of audi alteram partem applies to
the proceedings before the wage boards. If the functions performed by them
were administrative or legislative in character they would not be subject to
judicial review and not only would they not be amenable to the writs of
certiorari or prohibition, under Arts. 32 and 226 of the Constitution, they would
also not be amenable to the exercise of special leave jurisdiction under Art. 136.
Their decisions moreover would not be vulnerable on the ground that the
principle of audi alteram partem, i.e., no man shall be condemned unheard, was
not followed in the course of the proceedings before them and the procedure
adopted by them was contrary to the principles of natural justice.
102. It is well settled that writs of certiorari and prohibition will lie only in respect of
judicial or quasi-judicial acts :
"the orders of certiorari and prohibition will lie to bodies and persons other than
courts stricto sensu. Any body of persons having legal authority to determine
questions affecting the rights of subjects, and having the duty to act judicially,
is subject to the controlling jurisdiction of the High Court of justice, exercised by
means of these orders." (Halsbury's Laws of England, 3rd Edn., Vol. II. at p. 55,
para, 114).
103. The principle of audi alteram partem also applies only to judicial or quasi-judicial
proceedings : As was observed by the Judicial Committee of the Privy Council in
Patterson v. District Commissioner of Accra [1948] A.C. 341 :-

"On this part of the case, counsel suggested that the provisions of s. 9 were in
the nature of a "mass punishment" of the inhabitants of the proclaimed district
and he relied on the well-known passage from the judgment of the court in
Banaker v. Evans, (16 Q.B. 162, 171) "no proposition can be more clearly
established than that a man cannot incur the loss of liberty or property for an
offence by a judicial proceeding until he has had a fair opportunity of answering
the charge against him, unless indeed the legislature has expressly or impliedly
given an authority to act, without that necessary preliminary. This is laid down
in [here a number of cases are mentioned] and many other cases, concluding
with that of Capel v. Child [1832] 2 C. & J. 558 in which Bayley B. says he
knows of no case in which you are to have a judicial proceeding, by which a
man is to be deprived of any part of his property, without his having an
opportunity of being heard."... Their Lordships have already indicated that, in
their view, the section does not contemplate any judicial proceeding, and thus a
decision against the appellant does not infringe the principles stated in Bonaker
v. Evans." 16 Q.B. 162.
104. The distinction between a legislative and a judicial function is thus brought out in
Cooley's Constitutional Limitations, 8th Edn., Vol. I, ch. V under the caption of "the
powers which the legislative department may exercise", at p. 185 :"On general principles, therefore, those inquires, deliberations, orders, and
decrees, which are peculiar to such a department, must in their nature be
judicial acts. Nor can they be both judicial and legislative; because a marked
difference exists between the employment of judicial and legislative tribunals.
The former decide upon the legality of claims and conduct, and the latter make
rules upon which, in connection with the constitution, those decisions should be
founded. It is the province of judges to determine what is the law upon existing
cases. In fine, the law is applied by one, and made by the other. To do the first,
therefore, is to compare, the claims of parties with the law of the land before
established - is in its nature judicial act. But to do the last - to pass new rules
for the regulation of new controversies - is in its nature a legislative act; and if
these rules interfere with the past, or the present, and do not look wholly to the
future, they violate the definition of a law as "a rule of civil conduct", because
no rule of conduct can with consistency operate upon what occurred before the
rule itself was promulgated.
"It is the province of judicial power, also to decide private disputes between or
concerning persons; but of legislative power to regulate public concerns, and to
make laws for the benefit and welfare of the State. Nor does the passage of
private statutes, when lawful, are enacted on petition, or by the consent of all
concerned; or else they forbear to interfere with past transactions and vested
rights."
105. The following classic passage from the opinion of Holmes, J., in Prentis v. Atlantic
Coast Line Co. Ltd., [1908] 211 U.S. 210 is very apposite in this context :
"A judicial inquiry investigates, declares, and enforces liabilities as they stand on
present or past facts and under laws supposed already to exist. That is its
purpose and end. Legislation, on the other hand looks to the future and changes
existing conditions by making a new rule, to be applied thereafter to all or some

part of those subject to its power. The establishment of a rate is the making of a
rule for the future, and therefore, is an act legislative not judicial in kind,......."
..................................................
That question depends not upon the character of the body, but upon the
character of the proceedings.
...............................................
The nature of the final act determines the nature of the previous enquiry."
(See also Mitchell Coal & Coke Co. v. Pennsylvania R. Co. [1913] 230 U.S. 247 and
Louisville & Nashville Railroad Company v. Green Garrett [1913] 231 U.S. 198.
106. A practical difficulty however arises in thus characterizing the functions as
legislative or judicial because the functions performed by administrative agencies do
not fall within water-tight compartments. Stason and Cooper in their treatises on
"Cases and other materials on Administrative Tribunals" point out :
"One of the great difficulties of properly classifying a particular function of an
administrative agency is that frequently - and, indeed; typically - a single
function has three aspects. It is partly legislative, partly judicial and partly
administrative. Consider, for example, the function of rate-making. It has
sometimes been characterised as legislative, sometimes as judicial. In some
aspects, actually, it involves merely executive or administrative powers. For
example, where the Interstate Commerce Commission fixes a tariff of charges
for any railroad, its function is viewed as legislative. But where the question for
decision is whether a shipment of a mixture of coffee and chicory should be
charged the rate established for coffee or the lower rate established for chicory,
the question is more nearly judicial. On the other hand, where the problem is
merely the calculation of the total freight charges due for a particular shipment,
the determination can fairly be described as an administrative act."
107. This difficulty is solved by the Court considering in a proper case whether the
administrative agency performs a predominantly legislative or judicial or administrative
function and determining its character accordingly. (Vide : Village of Saratoga Springs
v. Saratoga Gas, Electric Light & Power Co., [1908] 191 New York 123 and People ex
rel. Central Park, North & East River R. Co. v. Willcox. [1909] 194 New York 383.
108. The function of the wage board in the United Kingdom had been characterised as
legislative in character by various text-book writers.
108a. Robson's Justice and Administrative Law, 3rd Edn., states at p. 608 (foot-note) :
"An example of a subordinate body of this type is a Wage Council, which is not
an administrative tribunal but a subordinate legislative authority."
109. Griffith's Principles of Administrative Law contains the following passage at p. 39 :

"The subordinate legislation which occupies more space than any other subject
relates to Wages Councils. By the Wages Councils Act, 1945, the Minister of
Labour and National Service was empowered to establish by order Wages
Councils to operate in industries and trades. Six such orders were made in
1947. Wages Councils, under the Act, may submit to the Minister detailed
"wages regulations proposals" for fixing remuneration and making provisions for
holidays. The Minister then makes orders embodying and giving effect to these
proposals. In 1947, fifty-five such orders were made, covering thirty-one
different trades."
110. Barbare Wootton in "Social Foundations of Wage Policy; Modern Methods of Wage
Determination" makes the following observations at p. 88 :
"Both arbitration tribunals and courts of inquiry share with - one important
difference - the tripartite structure of statutory wage councils; they are
composed of equal numbers of representatives of employers and of workers
under an independent chairman together with (in some cases) additional
independent members. The essential difference between their structure and that
of statutory wage authorities is that the representative members of the latter
are chosen from within the industry concerned, whereas employers and workers
on arbitration tribunal come from outside the industry whose disputes they have
to resolve; if in any case technical knowledge of a particular industry is
required, this is normally supplied by the help of assessors who take no part in
the final award. This difference between the constitution of wage boards and
that to arbitration tribunals clearly implies a corresponding distinction between
the legislative function of the former and the judicial function of the latter. The
wages board drafts laws for its own industry, whereas the arbitration court gives
judgment on matters submitted by others. The choice of industrial arbitrators
unconnected with the industries the merits of whose claims they must pledge, is
evidently intended as a guarantee that they, like other judges, will be free from
bias arising from personal interest."
111. The High Court of the Commonwealth of Australia has taken a similar view in
Australian Boot Trade Employees Federation v. Whybrow & Co. [1910] 10 C.L.R. 266,
in discussing an award made by the wages board empowered by a State statute to fix
minimum rates of wages. The test applied for determining the character of that
function may be stated in the words of Issacs J. at p. 318 :
"If the dispute is as to the relative rights of parties as they rest on past or
present circumstances, the award is in the nature of a judgment, which might
have been the decree of an ordinary judicial tribunal acting under the ordinary
judicial power. There the law applicable to the case must be observed. If,
however, the dispute is as to what shall in the future be the mutual rights and
responsibilities of the parties - in other words, if no present rights are asserted
or denied, but a future rule of conduct is to be prescribed, thus creating new
rights and obligations, with sanctions for non-conformity - then the
determination that so prescribes, call it an award, or arbitration, determination,
or decision or what you will, is essentially of a legislative character, and limited
only by the law which authorises it. If, again, there are neither present rights
asserted, nor a future rule of conduct prescribed, but merely a fact ascertained
necessary for the practical effectuation of admitted rights, the proceeding,

though called an arbitration, is rather in the nature of an appraisement or

ministerial act."
.................................
112. As against this trend of opinion it has been urged that the decisions of the Wage
Councils in the shape of wage regulation proposals submitted to the minister in Great
Britain under the Wage Councils Act derive their sanction from the orders made by the
minister giving effect to these proposals; but for such orders of the minister they
would merely remain the determinations of the Wage Councils and would not acquire
any legislative character. In regard to the determinations of the wage boards
empowered by the statutes to fix the minimum rates of wages in the Commonwealth
of Australia also it is pointed out that under the provisions of the Factories and Shops
Act, 1905, of Victoria "Every determination of any Special Board shall unless and until
so quashed... have the like force, validity and effect as if such determination had been
enacted in this Act..." thus investing the determination of the boards with the
characteristics of a legislative act.
113. Reference is made to the provisions of the Fair Labour Standards Act of 1938 in
the United States of America, where the wages orders ultimately approved by the
Administrator are subject to judicial review in the Circuit courts of Appeals or in the
United States courts of appeals of the particular District and also subject to further
review by the Supreme Court of the United States of America on certification.
114. The Minimum Wages Act, 1948, in our country also provides for the committees,
sub-committees, advisory sub-committees, advisory boards and central advisory
boards for fixing minimum rates of wages and the recommendations of these
committees are forwarded to the appropriate Government who by notification in the
official gazette fix minimum rates of wages in respect of each scheduled employment.
The notification is a token of the approval by the appropriate Government of these
recommendations of the Committees and invests them with legal sanction.
115. The recent amendment of the Bombay Industrial Relations Act, 1946, empowers
the State Government by notification in the official Gazette to constitute for one or
more industries a wage board for the State and enjoins these wage boards to follow
the same procedure as the Industrial Court in respect of arbitration proceedings before
it and appeals from the decisions of these wage boards lie to the Industrial Courts
which has powers of superintendence and control over these wage boards and it
cannot, under the circumstances, be urged that these wage boards perform any
legislative functions.
116. These are the two opposite points of view which have been pressed before us and
it is impossible to state that the functions performed by the wage boards are
necessarily of a legislative character. It is no doubt true that their determinations bind
not only the employers and the employees in the present, but they also operate when
accepted by the appropriate government or authorities and notified in accordance with
law, to bind the future employers and employees in the industry. If that were the only
consideration the dictum of Justice Holmes cited above would apply and the functions
performed by these wage boards would be invested with a legislative character. This is
however not all, and regard must be had to the provisions of the statutes constituting
the wage boards. If on a scrutiny of the provisions in regard thereto one can come to
the conclusion that they are appointed only with a view to determine the relations

between the employers and the employees in the future in regard to the wages
payable to the employees there would be justification for holding that they were
performing legislative functions. If, however, on a consideration of all the relevant
provisions of the statutes bringing the wage boards into existence, it appears that the
powers and procedure exercised by them are assimilated to those of Industrial
Tribunals or their adjudications are subject to judicial review at the hands of higher
Tribunals exercising judicial or quasi-judicial functions, it cannot be predicated that
these wage boards are exercising legislative functions. Whether they exercise these
functions or not is thus to be determined by the relevant provisions of the statutes
incorporating them and it would be impossible to lay down any universal rule which
would help in the determination of this question.
117. Even if on the construction of the relevant provisions of the statute we come to
the conclusion that the functions performed by a particular wage board are not of a
legislative character, the question still remains whether the functions exercised by
them are administrative in character or judicial or quasi-judicial in character, because
only in the latter event would their decision be amenable to the writ jurisdiction or to
the special leave jurisdiction above referred to.
118. There is no doubt that these wage boards are not exercising purely judicial
functions. They are not courts in the strict sense of the term and the functions which
they perform may at best be quasi-judicial in character. The fact that they are
administrative agencies set up for the purpose of fixation of wages do not necessarily
invest their functions with an administrative character and in spite of their being
administrative bodies they can nevertheless be exercising quasi-judicial functions if
certain conditions are fulfilled.
119. The position in law has been thus summarised in Halsbury's Laws of England, 3rd
Ed., Vol. 11, at pp. 55-56 :"The orders of certiorari and prohibition will lie to bodies and persons other than
courts stricto sensu. Any body of persons having legal authority to determine
questions affecting the rights of subjects, and having the duty to act judicially,
is subject to the controlling jurisdiction of the High Court of Justice, exercised by
means of these orders. It is not necessary that it should be a court; an
administrative body in ascertaining facts or law may be under a duty to act
judicially notwithstanding that its proceedings have none of the formalities of,
and are not in accordance with the practice of, a court of law. It is enough if it is
exercising, after hearing evidence, judicial functions in the sense that it has to
decide on evidence between a proposal and an opposition. A body may be under
a duty, however, to act judicially (and subject to control by means of these
orders) although there is no form of lis inter parties before it; it is enough that it
should have to determine a question solely on the facts of the particular case,
solely on the evidence before it, apart from questions of policy or any other
extraneous considerations."
"Moreover an administrative body, whose decision is actuated in whole or in part
by questions of policy, may be under a duty to act judicially in the course of
arriving at that decision. Thus, if in order to arrive at the decision, the body
concerned had to consider proposals and objections and consider evidence, if at
some stage of the proceedings leading up to the decision there was something
in the nature of a lis before it, then in the course of such consideration and at

that stage the body would be under a duty to act judicially. If, on the other
hand, an administrative body in arriving at its decision has before it at no stage
any form of lis and throughout has to consider the question from the point of
view of policy and expediency, it cannot be said that it is under a duty at any
time to act judicially."
(See also the decision of this Court in Nagendra Nath Bora v. Commissioner of Hills
Division and Appeals, Assam. MANU/SC/0101/1958 : [1958]1SCR1240
120. In order therefore to determine whether an administrative body is exercising a
quasi-judicial function, it would be necessary to examine in the first instance, whether
it has to decide on evidence between a proposal and an opposition and secondly,
whether it is under a duty to act judicially in the matter of arriving at its decision.
"The duty to act judicially may arise in widely differing circumstances which it
would be impossible to attempt to define exhaustively. The question whether or
not there is a duty to act judicially must be decided in each case in the light of
the circumstances of the particular case and the construction of the particular
statute, with the assistance of the general principles already set out." (Ibid,
para. 115).
121. The decision in R. v. Manchester Legal Aid Committee Ex parte R. A. Brand & Co.
Ltd. [1952] 2 Q.B. 413, lays down when an administrative body can be said to have a
duty to act judicially :
"The true view, as it seems to us, is that the duty to act judicially may arise in
widely different circumstances which it would be impossible, and, indeed,
inadvisable, to attempt to define exhaustively. Where the decision is that of a
court, then, unless, as in the case, for instance, of justices granting excise
licences, it is acting in a purely ministerial capacity, it is clearly under a duty to
act judicially. When, on the other hand, the decision is that of an administrative
body and is actuated in whole or in part by questions of policy, the duty to act
judicially may arise in the course of arriving at that decision. Thus, if, in order to
arrive at the decision, the body concerned had to consider proposals, and
objections and consider evidence, then there is the duty to act judicially in the
course of that inquiry. That, as it seems to us, is the true basis of the decision in
Errington v. Minister of Health....." [1935] 1 K.B. 249.
(See also Rex v. The London Country Council : Ex parte Entertainments Protection
Association Ltd. .....[1931] 2 K.B. 215.
"Further, an administrative body in ascertaining facts or law may be under a
duty to act judicially notwithstanding that its proceedings have none of the
formalities of and are not in accordance with the practice of a court of law."
Vide Board of Education v. Rice : [1911] A.C. 179.
.............................................
"More recently it has been held by this Court on many occasions that certiorari
will lie to quash the decision of rent control tribunals, and this notwithstanding
that such a tribunal is entitled to act on its own knowledge and information,

without evidence unless submitted, and without a hearing except on notice from
a party; see Rex v. Brighton and Area Rent Tribunal. [1950] 2 K.B. 410.
"If, on the other hand, an administrative body in arriving at its decision at no
stage has before it any form of lis and throughout has to consider the question
from the point of view of policy and expediency, it cannot be said that it is under
a duty at any stage to act judicially : Compare Franklin v. Minister of Town and
Country Planning." [1948] A.C. 87.
122. It is strenuously urged before us by learned counsel for the petitioners that if the
functions which the wage boards perform in the matter of fixation of the rates of
wages are considered in the light of the principles cited above, it would appear that as
between the employers, on the one hand, and the employees, on the other, there is a
proposition and opposition. The employees demand that a particular statutory
minimum wage should be fixed and the scales of wages should also be determined in a
particular manner. The employers on their part would maintain that the status quo
should continue or that, in any event, much less than the statutory minimum wage
demanded by the employees should be fixed and also that the scales of wages should
be fixed on a gradation which is much less than or in any event, different from that
suggested by the employees. The employees may say that certain factors which are
material in the fixation of wages and which affect the employees should be considered
as determinative of the rates of wages while the importance of these factors may be
sought to be minimized by the employers who might put forward certain other factors
affecting them, in their turn, as determinative of those rates, the importance of which
may be sought to be minimized by the employees on the other hand. All these would
create proposition and opposition on both sides with the result that a lis would arise
between them. The determination of these points at issue would have to be arrived at
by the wage boards and the wage boards could only do so after collecting proper data
and materials and hearing evidence in that behalf. If the functions performed by the
wage board would thus consist of the determination of the issues as between a
proposition and an opposition on data and materials gathered by the board in answers
to the questionnaire issued to all parties interested and the evidence led before it,
there is no doubt that there would be imported in the proceedings of the wage board a
duty to act judicially and the functions performed by the wage board would be quasi
judicial in character. It has been on the other hand urged before us by the learned
counsel for the respondents that the very constitution of the wage boards is against
the fundamental principle of jurisprudence which postulates that no man should be a
judge in his own cause. It was laid down by the House of Lords in Franklin v. Minister
of Town and Country Planning [1948] A.C. 87. 102 :
"My Lords, I could wish that the use of the word "bias" should be confined to its
proper sphere. Its proper significance, in my opinion, is to denote a departure
from the standard of even-handed justice which the law requires from those
who occupy judicial office, or those who are commonly regarded as holding a
quasi-judicial office, such as an arbitrator. The reason for this clearly is, that
having to adjudicate as between two or more parties, he must come to his
adjudication with an independent mind, without any inclination or bias towards
one side or other in the dispute."
The representatives of the employers and the representatives of the employees who
are appointed on the wage board along with an independent chairman and some other
members, it is submitted, would necessarily have a bias in favour of those whom they

represent and therefore would not be competent to be judges and the wage board thus
constituted could hardly be called a judicial body.
123. There is considerable force in these contentions, but we do not fell called upon to
express our final opinion on this question in view of the conclusion which we have
hereafter reached in regard to the ultra vires character of the decision of the Wage
Board itself. We are however bound to observe that whatever be the character of the
functions performed by the wage boards whether they be legislative or quasi-judicial, if
proper safeguards are adopted of the nature discussed earlier, e.g., provision for
judicial review or the adopting of the procedure as in the case of the recommendations
of the wage councils in the United Kingdom, or the reports of the advisory committees
which come to be considered by the administrator under the Fair Labour Standards Act
of 1938 in the United States of America, no objection could ever be urged against the
determinations of the wage boards thus arrived at one the score of the principles of
natural justice having been violated.
124. We now proceed to consider how far the impugned Act violates the fundamental
rights of the petitioners.
125. Re : Article 19(1)(a).
Art. 19(1)(a) guarantees to all citizens the right to freedom of speech and expression.
It has, however, got to be read along with Art. 19(2) which lays down certain
constitutionally permissible limitations on the exercise of that right. Art. 19(2) as
substituted by the Constitution (First Amendment) Act, 1951, with retrospective effect
reads as under :
"Nothing in sub-clause (a) of clause (1) shall effect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said subclause in the interests of the security of the State, friendly relations with foreign
States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence."
126. If any limitation on the exercise of the fundamental right under Art. 19(1)
(a) does not fall within the four corners of Art. 19(2) it cannot be upheld.
127. Freedom of speech and expression includes within its scope the freedom of the
press and it would be apposite here to refer to the following passages from "Freedom
of the Press - A Framework of Principles" (Report of the Commission on Freedom of
Press in the United States of America).
128. The General Meaning of Freedom :
To be free is to have the use of one's powers of action (i) without restraint or
control from outside and (ii) with whatever means or equipment the action
requires.
"The primary suggestion of the term "freedom" is the negative one, the absence
of external interference whether to suppress or to constrain. To be free is
essentially to be free from something - some arbitrary impediment to action,
some dominating power or authority. And so long as it can be taken for granted

that the unhindered person has all he needs to act with - which is usually the
case the negative meaning remains the chief element of the conception.
"But since freedom is for action, and action is for an end, the positive kernel of
freedom lies in the ability to achieve the end; to be free means to be free for
some accomplishment. And this implies command of the means to achieve the
end. Unless the equipment necessary for effective action is at hand, may be a
mockery of freedom...... Unrestraint without equipment is not liberty for any
end which demands equipment." (pp. 54-55).
.............................................
129. Resulting Conception of Freedom of the Press :
"The emerging conception of freedom of the press may be summarised as follows :
As with all freedoms, press freedom means freedom from and freedom for. A
free press is free from compulsions from whatever source, governmental or
social, external or internal. From compulsions, not from pressures; for no press
can be free from pressures except in a moribund society empty of contending
forces and beliefs. These pressures, however, if they are persistent and
distorting - as financial, clerical, popular, institutional pressures may become approach compulsion; and something is then lost from effective freedom which
the press and its public must unite to restore.
"A free press is free for the expression of opinion in all its phases. It is free for
the achievement of those goals of press service on which its own ideals and the
requirements of the community combine and which existing techniques make
possible. For these ends it must have full command on technical resources,
financial strength, reasonable access to sources of information at home and
abroad, and the necessary facilities for bringing information to the national
market. The press must grow to the measure of this market." (p. 228).
....................................................
129a. There is paucity of authority in India on the nature, scope and extent of this
fundamental right to freedom of speech and expression enshrined in Art. 19(1)(a) of
the Constitution. The first case which came up for decision before this court was that
of Ramesh Thaper v. The State of Madras MANU/SC/0006/1950 : 1950CriLJ1514 . It
was a case of a ban on the entry and circulation of the appellant's journal in the State
of Madras under the provisions of section 9(1-A) of the Madras Maintenance of Public
Order Act, 1949, and it was observed by Patanjali Sastri J. (as he then was) at p. 597 :
"There can be no doubt that freedom of speech and expression includes
freedom of propagation of ideas, and that freedom is ensured by the freedom of
circulation. "Liberty of circulation is as essential to that freedom as the liberty of
publication. Indeed, without circulation the publication would be of little
value." : Ex parte Jackson [1877] 96 U.S. 727. See also Lovell v. City of Griffin.
[1937] 303 U.S. 444.
130. Brij Bhushan & Anr. v. The State of Delhi MANU/SC/0007/1950 : 1950CriLJ1525
was the next case which came up for decision before this Court and it concerned the

constitutionality of section 7(i)(c) of the East Punjab Public Safety Act, 1949. It was a
provision for the imposition of pre-censorship on a journal. Patanjali Sastri J. (as he
then was) who delivered the majority judgment observed at p. 608 :"There can be little doubt that the imposition of pre-censorship on a journal is a
restriction on the liberty of the press which is an essential part of the right to
freedom of speech and expression declared by Art. 19(1)(a). As pointed out by
Blackstone in his Commentaries "the liberty of the Press consists in laying no
previous restraint upon publications, and not in freedom from censure for
criminal matter when published. Every freeman has an undoubted right to lay
what sentiments he pleases before the public; to forbid this, is to destroy the
freedom of the press. (Blackstone's Commentaries, Vol. IV, pp. 151, 152)."
131. These are the only two decisions of this Court which involve the interpretation of
Art. 19(1)(a) and they only lay down that the freedom of speech and expression
includes freedom of propagation of ideas which freedom is ensured by the freedom of
circulation and that the liberty of the press is an essential part of the right to freedom
of speech and expression and that liberty of the press consists in allowing no previous
restraint upon publication.
132. There is however, a considerable body of authority to be found in the decisions of
the Supreme Court of the United States of America bearing on this concept of the
freedom of speech and expression. Amendment I of that Constitution lays down :
"Congress shall make no law.... abridging the freedom of speech or of the
press......"
133. It is trite to observe that the fundamental right to the freedom of speech and
expression enshrined in Art. 19(1)(a) of our Constitution is based on these provisions
in Amendment I of the Constitution of the United States of America and it would be
therefore legitimate and proper to refer to those decisions of the Supreme Court of the
United States of America in order to appreciate the true nature, scope and extent of
this right in spite of the warning administered by this Court against the use of
American and other cases, (Vide State of Travancore-Cochin & Ors. v. Bombay Co. Ltd.
MANU/SC/0068/1952 : [1952]1SCR1112 and State of Bombay v. R. M. D.
Chamarbaugwala. MANU/SC/0019/1957 : [1957]1SCR874 .
134. Grosjean v. American Press Co. [1935] 297 U.S. 233, was a case where a statute
imposed a license tax on the business of publishing advertisements and it was
observed at p. 668 :
"The evils to be prevented were not the censorship of the press merely, but any
action of the Government by means of which it might prevent such free and
general discussion of public matters as seems absolutely essential to prepare
the people for an intelligent exercise of their rights as citizens." (Vide Cooley's
Constitutional Limitations, 8th Edn., Vol. II, p. 886).
135. The statute was there struck down as unconstitutional because in the light of its
history and of its present setting it was seen to be a deliberate and calculated device in
the guise of a tax to limit the circulation of information to which the public was entitled
in virtue of the constitutional guarantees.

136. The following passage from the dissenting opinion in The Associated Press v. The
National Labour Relations Board [1936] 301 U.S. 103 is also instructive :
"If the freedom of the press does not include the right to adopt and pursue a
policy without governmental restriction, it is a misnomer to call it freedom. And
we may as well deny at once the right to the press freely to adopt a policy and
pursue it, as to concede that right and deny the liberty to exercise an
uncensored judgment in respect of the employment and discharge of the agents
through whom the policy is to be effectuated."
137. It was also observed there at p. 965 :
"Due regard for the constitutional guarantee requires that the publisher or
agency of the publisher of news shall be free from restraint in respect of
employment in the editorial force."
138. Schneider v. Irvingtor [1939] 308 U.S. 147 was concerned with the effect of the
Municipal Regulations against littering of streets. In the course of its decision the Court
made the following observations at p. 164 :
"This court has characterized the freedom of speech and that of the press as
fundamental personal rights and liberties. The phrase is not an empty one and
was not lightly used. It reflects the belief of the framers of the Constitution that
exercise of the rights lies at the foundation of free government by free press. It
stresses, as do many opinions of this court, the importance of preventing the
restriction of enjoyment of these liberties."
139. Non-interference by the State with this right was emphasized in Thomas v.
Collins [1944] 323 U.S. 516 :"But it cannot be the duty, because it is not the right, of the State to protect the public
against false doctrine. The very purpose of the First Amendment is to foreclose public
authority from assuming a guardianship of the public mind through regulating the press,
speech, and religion. In this field every person must be his own watchman for truth,
because the forefathers did not trust any Government to separate the true from the false
for us".....
140. In 93 L.Ed. at p. 1151 is given a summary of the decisions of the Supreme Court
of the United States of America on this subject under the heading "The Supreme Court
and the right of Free Speech and Press" and it contains at p. 1153 the following
passage under the captain "Right in General : Freedom from Censorship and
Punishment" :
"The freedom of speech and of press are fundamental personal rights &
liberties, the exercise of which lies at the foundation of free Government by free
men...... The very purpose of the first Amendment is to foreclose public
authority from assuming a guardianship of the public mind through regulating
the press, speech, and religion; it rests on the assumption that the widest
possible dissemination of information from diverse and antagonistic sources is
essential to the welfare of the public."

141. The dissenting opinion of Douglas J. in Beauharnais v. Illinois [1951] 343 U.S.
250 contains the following at p. 943 :
"There is room for regulation of the ways and means of invading privacy. No
such leeway is granted the invasion of the right of free speech guaranteed by
the First Amendment. Until recent years that had been the course and direction
of constitutional law. Yet recently the Court in this and other cases has
engrafted the right of regulation onto the First Amendment by placing in the
hands of the legislative branch the right to regulate "within reasonable limits"
the right of free speech. This to me is an ominous and alarming trend. The free
trade in ideas which the framers of the Constitution visualised disappears. In its
place there is substituted a new orthodoxy - an orthodoxy that changes with the
whims of the age or the day, an orthodoxy which the majority by solemn
judgment proclaims to be essential to the safety, welfare, security, morality, or
health of Society. Free speech in the constitutional sense disappears. Limits are
drawn - limits dictated by expediency, political opinion, prejudices or some other
desideratum of legislative action."
142. It is clear from the above that in the United States of America :
(a) the freedom of speech comprehends the freedom of press and the freedom
of speech and press are fundamental personal rights of the citizens;
(b) the freedom of the press rests on the assumption that the widest possible
dissemination of information from diverse and antagonistic source is essential to
the welfare of the public;
(c) Such freedom is the foundation of free Government of a free people;
(d) the purpose of such a guarantee is to prevent public authorities from
assuming the guardianship of the public mind and
(e) freedom of press involves freedom of employment or non-employment of
the necessary means of exercising this right or in other words, freedom from
restriction in respect of employment in the editorial force.
143. This is the concept of the freedom of speech and expression as it obtains in the
United States of America and the necessary corollary thereof is that no measure can
be enacted which would have the effect of imposing a pre-censorship, curtailing the
circulation or restricting the choice of employment or unemployment in the editorial
force. Such a measure would certainly tend to infringe the freedom of speech and
expression and would therefore be liable to be struck down as unconstitutional.
144. The press is however, not immune from the ordinary forms of taxation for support
of the Government nor from the application of the general laws relating to industrial
relations. It was observed in Grosjean v. American Press Co. [1935] 297 U.S. 233 :
"It is not intended by anything we have said to suggest that the owners of
newspapers are immune from any of the ordinary forms of taxation for support
of the Government; But this is not an ordinary form of tax but one single in kind
with a long history of hostile misuse against the freedom of the press.

"The predominant purpose of the grant of immunity here invoked was to

preserve an untrammelled press as a vocal source of public information. The
newspapers, magazines, and other journals of the country, it is safe to say, have
shed and continue to shed, more light on the public and business affairs of the
nation than any other instrumentality of publicity; and since informed public
opinion is the most patent of all restraints upon mis-government, the
suppression or abridgment of the publicity afforded by a free press cannot be
regarded otherwise than with gave concern. The tax here involved is bad not
because it takes money from the pockets of the appellees. If that were all, a
wholly different question would be presented. It is bad : Because, in the light of
its history and of its present setting, it is seen to be a deliberate and calculated
device in the guise of a tax to limit the circulation of information to which the
public is entitled in virtue of the constitutional guarantees. A free press stands
as one of the great interpreters between the Government and the people. To
allow it to be fettered is to fetter ourselves."
145. In The Associated Press v. National Labour Relations Board [1936] 301 U.S. 103,
it was held that the freedom of the press safeguarded by the First Amendment was not
abridged by the application in the case of an editor employed by the Associated Press
to determine the news value of the items received and to rewrite them for
transmission to members of the association throughout the United States who must
function without bias and prejudice, of the provisions of the National Labour Relations
Act which inhibited an employer from discharging an employee because of union
activities. It was further observed at p. 960 :
"So it is said that any regulation protective of union activities, or the right
collectively to bargain on the part of such employees, is necessarily an invalid
invasion of the freedom of the press. We think that the contention not only has
no relevance to the circumstances of the instant case but is an unsound
generalization."
146. Murdock v. Pennsylvania, [1942] 319 U.S. 105, was a case of a license fee for the
sale of religious books and Mr. Justice Frankfurter in his dissenting opinion at p. 1311
observed :
"A tax upon newspaper publishing is not invalid simply because it falls upon the
exercise of a constitutional right. Such a tax might be invalid if it invidiously
singled out newspaper publishing for bearing the burden or taxation or imposed
upon them in such ways as to encroach on the essential scope of a free press. If
the Court could justifiably hold that the tax measures in these cases were
vulnerable on that ground, I would unreservedly agree. But the Court has not
done so, and indeed could not."
147. In Oklahoma Press Publishing Co. v. Walling [1945] 327 U.S. 186, and in Mabee
v. White Planis Publishing Co. (1945) 327 U.S. 178 the Federal Fair Labour Standards
Act was held applicable to the press and it was observed in the former case at p. 621 :
"Here there was no singling out of the press for treatment different from that
accorded other business in general. Rather the Act's purpose was to place
publishers of newspapers upon the same plane with other businesses and the
exemption for small newspapers had the same object. Nothing in the Grosjean

case [1935] 297 U.S. 233, forbids congress to exempt some publishers because
of size from either a tax or a regulation which would be valid if applied to all."
148. The Constitution of the United States of America - Analysis and Interpretation Prepared by the Legislative Reference Service, Library of Congress, summarises the
position thus at p. 792 :
"The Supreme Court, citing the fact that the American Revolution "really began
when......... that Government (of England) sent stamps for newspaper duties to
the American colonies" has been alert to the possible uses of taxation as a
method of suppressing objectionable publications. Persons engaged in the
dissemination of ideas are, to be sure, subject to ordinary forms of taxation in
like manner as other persons. With respect to license or privilege taxes,
however, they stand on a different footing. Their privilege is granted by the
Constitution and cannot be withheld by either State or Federal Government.
..................................
"The application to newspapers of the Anti-Trust Laws, the National Labour Relations
Act, or the Fair Labour Standards Act, does not abridge the freedom of the press."
149. The Laws regulating payment of wages have similarly been held as not abridging
the freedom of speech and expression and the following observations in the same
publication (at p. 988) in regard to the Minimum Wage Laws are apposite :
"MINIMUM WAGE LAWS : The theory that a law prescribing minimum wages for
women and children violates due process by impairing freedom of contract was
finally discarded in 1937 (West Coast Hotel Co. v. Parish, 300 U.S. 379) . The
current theory of the Court, particularly when labour is the beneficiary of
legislation, was recently stated by Justice Douglas for a majority of the Court, in
the following terms : "Our recent decisions make plain that we do not sit as a
super-legislature to weigh the wisdom of legislation nor to decide whether the
policy which it expresses offends the public welfare..... But the state legislatures
have constitutional authority to experiment with new techniques; they are
entitled to their own standard of the public welfare; they may within extremely
broad limits control practices in the business-labor field, so long as specific
constitutional prohibitions are not violated and so long as conflicts with valid and
controlling federal laws are avoided (Day-Brite Lighting, Inc. v. Missouri, 342
U.S. 421, 423 (1952)). "
150. While therefore no such immunity from the general law can be claimed by the
press it would certainly not be legitimate to subject the press to laws which take away
or abridge the freedom of speech and expression or which would curtail circulation and
thereby narrow the scope of dissemination of information, or fetter its freedom to
choose its means of exercising the right or would undermine its independence by
driving it to seek Government aid. Laws which single out the press for laying upon it
excessive and prohibitive burdens which would restrict the circulation, impose a
penalty on its right to choose the instruments for its exercise or to seek an alternative
media, prevent newspapers from being started and ultimately drive the press to seek
Government aid in order to service, would therefore be struck down as
unconstitutional.

151. Such laws would not be saved by Art. 19(2) of the Constitution. This Court had
occasion to consider the scope of Art. 19(2) in Brij Bhushan & Anr. v. The State of
Delhi MANU/SC/0007/1950 : 1950CriLJ1525 , where Fazl Ali J. in his dissenting
judgment observed at p. 619 :
"It must be recognized that freedom of speech and expression is one of the
most valuable rights guaranteed to a citizen by the Constitution and should be
jealously guarded by the Court. It must also be recognised that free political
discussion is essential for the proper functioning of a democratic government,
and the tendency of the modern jurists is to deprecate censorship though they
all agree that "liberty of the press" is not to be confused with its
"licentiousness". But the Constitution itself has prescribed certain limits and this
Court is only called upon to see whether a particular case comes within those
limits."
152. Unless, therefore, a law enacted by the Legislature comes squarely within the
provisions of Art. 19(2) it would not be saved and would be struck down as
unconstitutional on the score of its violating the fundamental right of the petitioners
under Art. 19(1)(a).
153. In the present case it is obvious that the only justification for the enactment of
the impugned Act is that it imposes reasonable restrictions in the interests of a section
of the general public, viz., the working journalists and other persons employed in the
newspaper establishments. It does not fall within any of the categories specified in
Art. 19(2), viz.,
"In the interests of the security of the State, friendly relations with foreign
States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence."
Article 19(2) being thus out of the question the only point that falls to be determined
by us is whether the provisions of the impugned Act in any way take away or abridge
the petitioners' fundamental right of freedom of speech and expression.
154. It was contended before us by the learned Attorney-General that it was only
legislation directly dealing with the right mentioned in Art. 19(1)(a) that was protected
by it. If the legislation was not a direct legislation on the subject, Art. 19(1)(a) would
have no application, the test being not the effect or result of legislation but its subjectmatter. In support of his contention he relied upon the following observations of Kania
C.J. in A. K. Gopalan v. The State of Madras MANU/SC/0012/1950 : 1950CriLJ1383 .
"As the preventive detention order results in the detention of the applicant in a cell it
was contended on his behalf that the rights specified in article 19(1), (a), (b), (c), (d),
(e) and (g) have been infringed. It was argued that because of his detention he cannot
have a free right to speech as and where he desired and the same argument was urged
in respect of the rest of the rights mentioned in sub-clauses (b), (c), (d), (e), and (g).
Although this argument is advanced in a case which deals with preventive detention, in
correct, it should be applicable in the case of punitive detention also to any one
sentenced to a term of imprisonment under the relevant section of the Indian Penal
Code. So considered, the argument must clearly be rejected. In spite of the saving
clauses (2) to (5), permitting abridgment of the rights connected with each of them,
punitive detention under several sections of the Penal Code, e.g., for theft, cheating,

forgery and even ordinary assault, will be illegal. Unless such conclusion necessarily
follows from the article, it is obvious that such construction should be avoided. In my
opinion, such result is clearly not the outcome of the Constitution. The article has to be
read without any pre-conceived notions. So read, it clearly means that the legislation to
be examined must be directly in respect of one of the rights mentioned in the subclauses. If there is a legislation directly attempting the control a citizen's freedom of
speech or expression, or his right to assemble peaceably and without arms, etc., the
question whether that legislation is saved by the relevant saving clause of article 19 will
arise. If, however, the legislation is not directly in respect of any of these subjects, but as
a result of the operation of other legislation, for instance, for punitive or preventive
detention, his right under any of these sub-clauses is abridged, the question of the
application of article 19 does not arise. The true approach is only to consider the
directness of the legislation and not what will be the result of the detention otherwise
valid, on the mode of the detenu's life. On that short ground, in my opinion, this
argument about the infringement of the rights mentioned in article 19(1) generally must
fail. Any other construction put on the article, it seems to me, will be unreasonable."
155. This opinion was expressed by Kania C.J. alone, the other learned judges forming
the Bench not expressing themselves on this question. This passage was, however,
cited, with approval by a Bench of this Court in Ram Singh & Ors. v. The State of Delhi
MANU/SC/0005/1951 : [1951]2SCR451 . It was held by the Full Court in that case
that though personal liberty is sufficiently comprehensive to include the freedoms
enumerated in Art. 19(1) and its deprivation would result in the extinction of these
freedoms, the Constitution has treated these constitutional liberties as distinct
fundamental rights and made separate provisions in Arts. 19, 21 and 22 as to the
limitations and conditions subject to which alone they could be taken away or
abridged. Consequently, even though a law which restricts the freedom of speech and
expression is not directed solely against the undermining of security of the State or its
over throw but is concerned generally in the interests of public order may not fall
within the reservation of clause (2) of Art. 19 and may therefore be void, an order of
preventive detention cannot be held to be invalid merely because :
"the detention is made with a view to prevent the making of speeches prejudicial to the
maintenance of public order......
156. This was also a case of detention under the Preventive Detention Act and the
detention of the detenu had been ordered with a view to prevent him from making
speeches prejudicial to the maintenance of public order. Public order was not one of
the categories mentioned in Art. 19(2) as it then stood, and any restriction imposed
upon the freedom of speech and expression could not be justified on that ground, the
only relevant ground in that connection then being undermining of the security of the
State or its overthrow. A restriction on the freedom of speech and expression in the
maintenance of public order would therefore not have been justified under
Art. 19(2) and if the Court had come to the conclusion that there was an infringement
of the right of freedom of speech and expression the order could not have been saved
under Art. 19(2). The Court, however, took the view that the direct object of the order
was preventive detention and not the infringement of the right of freedom of speech
and expression, which was merely consequential upon the detention of the detenu and
therefore upheld the validity of the order. It was, therefore, urged by the learned
Attorney-General that the object of the impugned Act was only to regulate certain
conditions of service of working journalists and other persons employed in the
newspaper establishments and not to take away or abridge the right of freedom of

speech and expression enjoyed by the petitioners and that therefore the impugned Act
could not come within the prohibition of Art. 19(1)(a) read with Art. 13(2) of the
Constitution.
157. It was contended, on the other hand, on behalf of the petitioners that the Court
has got to look at the true nature and character of the legislation and judge its
substance and not its form, or in other words, its effect and operation. It was pointed
out that the impugned Act viewed as a whole was one to regulate the employment of
the necessary organs of newspaper publications and therefore related to the freedom
of the press and as such came within the prohibition. Reliance was place in this behalf
on the following passage in Minnesota Ex Rel. Olson : [1930] 283 U.S. 697 .
"With respect to these contentions it is enough to say that in passing upon
constitutional questions the Court has regard to substance and not to mere
matters of form, and that, in accordance with familiar, principles, the statute
must be tested by its operation and effect."
158. The following observations of Mahajan J. (as he then was) in Dwarkadas Shrinivas
of Bombay v. The Sholapur Spinning and Weaving Co., Ltd. MANU/SC/0019/1953 :
[1954]1SCR674 were also relied upon :
"In order to decide these issues it is necessary to examine with some strictness
the substance of the legislation for the purpose of determining what it is that
the legislature has really done; the Court, when such questions arise, is not
over persuaded by the mere appearance of the legislation. In relation to
Constitutional prohibitions binding a legislature it is clear that the legislature
cannot disobey the prohibitions merely by employing indirect method of
achieving exactly the same result. therefore, in all such cases the court has to
look behind the names, forms and appearances to discover the true character
and nature of the legislation."
159. The impugned Act is as its long title shows an act to regulate certain conditions of
service of working journalists and other persons employed in newspaper
establishments and in the very forefront of the Act, the Industrial Disputes Act, 1947,
is by s. 3 made applicable to working journalists with certain modification in connection
with the application of s. 25F of that Act. The rest of the provisions contained in ch. II
concerned themselves with the payment of gratuity, hours of work and leave and
fixation of wages of the working journalists. The regulation of the conditions of service
is thus the main object which is sought to be achieved by the impugned Act. Chapter
III of the Act applies the provisions of the Industrial Employment (Standing Orders)
Act, 1946, and the Employees' provident Funds Act, 1952, to all the employees of the
newspaper establishments wherein twenty or more newspaper employees are
employed and covers working journalists as well as other employees in the employ of
the newspaper establishments. The miscellaneous provisions contained in ch. IV are
designed merely to implement or to carry out the provisions of the main part of the Act
and they do not make any difference so far as the effect and operation of the Act is
concerned. If this is the true nature of the Act, it is impossible to say that the Act was
designed to affect the freedom of speech and expression enjoyed by the petitioners or
that, that was its necessary effect and operation. It was conceded in the course of the
arguments that if a general law in regard to the industrial or labour relations had been
applied to the press industry as a whole no exception could have been taken to it. If
the matter had rested with the application of the Industrial Disputes Act. 1947, to the

working journalists or with the application of the Industrial Employment (Standing

Orders) Act, 1946, or the Employees' Provident Funds Act, 1952, to them no exception
could have been taken to this measure. It was, however, urged that apart from the
application of these general laws to the working journalists, there are provisions
enacted in the impugned Act in relation to payment of gratuity, hours of work, leave
and fixation of the rates of wages which are absolutely special to the press industry
qua the working journalists and they have the effect of singling out the press industry
by creating a class of privileged workers with benefits and rights which have not be
conferred upon other employees and the provisions contained therein have the effect
of laying a direct and preferential burden on the press, have a tendency to curtail the
circulation and thereby narrow the scope of dissemination of information, fetter the
petitioners; freedom to choose the means of exercising their right and are likely to
undermine the independence of the press by having to seek Government aid.
160. It is obvious that the enactment of this measure is for the amelioration of the
conditions of the workmen in the newspaper industry. It would not be possible for the
State to take up all the industries together and even as a matter of policy it would be
expedient to take the industries one by one. Even in regard to the workmen employed
it would be equally expedient to take a class of employees who stand in a separate
category by themselves for the purpose of benefiting them in the manner
contemplated. This circumstance by itself would therefore not be indicative of any
undue preference or a prejudicial treatment being meted out to that particular
industry, the main object being the amelioration of the conditions of those workmen. It
could not also be said that there was any ulterior motive behind the enactment of such
a measure because the employers may have to share a greater financial burden than
before or that the working of the industry may be rendered more difficult than before.
These are all incidental disadvantages which may manifest themselves in the future
working of the industry, but it could not be said that the Legislature in enacting that
measure was aiming at these disadvantages when it was trying to ameliorate the
conditions of the workmen. Those employers who are favourably situated, may not feel
the strain at all while those of them who are marginally situated may not be able to
bear the strain and may in conceivable cases have to disappear after closing down
their establishments. That, however, would be a consequence which would be
extraneous and not within the contemplation of the Legislature. It could therefore
hardly be urged that the possible effect of the impact of these measures in conceivable
cases would vitiate the legislation as such. All the consequences which have been
visualized in this behalf by the petitioners, viz., the tendency to curtail circulation and
thereby narrow the scope of dissemination of information, fetters on the petitioners'
freedom to choose the means of exercising the right, likelihood of the independence of
the press being undermined by having to seek government aid; the imposition of
penalty on the petitioners' right to choose the instruments for exercising the freedom
or compelling them to seek alternative media, etc., would be remote and depend upon
various factors which may or may not come into pay. Unless these were the direct or
inevitable consequences of the measures enacted in the impugned Act, it would not be
possible to strike down the legislation as having that effect and operation. A possible
eventuality of this type would not necessarily be the consequence which could be in
the contemplation of the legislature while enacting a measure of this type for the
benefit of the workmen concerned.
161. Even though the impugned Act enacts measures for the benefit of the working
journalists who are employed in newspaper establishments, the working journalists are
but the vocal organs and the necessary agencies for the exercise of the right of free

speech and expression, and any legislation directed towards the amelioration of their
conditions of service must necessarily affect the newspaper establishments and have
its repercussions on the freedom of Press. The impugned Act can therefore be
legitimately characterized as a measure which affects the press, and if the intention or
the proximate effect and operation of the Act was such as to bring it within the
mischief of Art. 19(1)(a) it would certainly be liable to be struck down. The real
difficulty, however, in the way of the petitioners is that whatever be the measures
enacted for the benefit of the working journalists neither the intention nor the effect
and operation of the impugned Act is to take away or abridge the right of freedom of
speech and expression enjoyed by the petitioners.
162. The gravamen of the complaint of the petitioners against the impugned Act,
however, has been the appointment of the Wage Board for fixation of rates of wages
for the working journalists and it is contended that apart from creating a class of
privileged workers with benefits and rights which were not conferred upon other
employees of industrial establishments, the Act has left the fixation of rates of wages
to an agency invested with arbitrary and uncanalised powers to impose an
indeterminate burden on the wage structure of the press, to impose such employeremployee relations as in its discretion it thinks fit and to impose such burden and
relations for such time as it thinks proper. This contention will be more appropriately
dealt with while considering the alleged infringement of the fundamental right
enshrined in Art. 19(1)(g). Suffice it to say that so far as Art. 19(1)(a) is concerned
this contention also has a remote bearing on the same and need not be discussed here
at any particular length.
163. Re : Article 19(1)(g).
164. The fundamental right of the petitioners herein is the right to carry on any
occupation, trade or business.
165. This freedom also is hemmed in by limitations which are to be found in
Art. 19(6), which in so far as it is relevant for our purposes enacts :
"Nothing in sub-clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the
exercise of the right, conferred by the said sub-clause."
The contention under this head is thus elaborated on behalf of the petitioners :
1. The impugned Act imposes unreasonable restrictions on the freedom to carry
on business :
(a) in empowering the fixation of rates of wages on criteria relevant only
for fixation of minimum wages;
(b) in empowering fixation of wages, grant of gratuity and compensation
without making it incumbent on the Board to consider the major factor of
the capacity of the industry to pay;
(c) in authorizing the Board to have regard to not what is relevant for
such fixation but to what the Board deems relevant for the purpose; and

(d) in providing for a procedure which does not compel the Board to
conform to the rules under the Industrial Disputes Act, 1947, thus
permitting the Board to follow any arbitrary procedure violating the
principle of audi alteram partem.
2. The restrictions enumerated above in so far as they affect the destruction of
the petitioners' business exceed the bounds of permissible legislation under
Art. 19(1)(g).
166. The unreasonableness of the restriction is further sought to be emphasized by
pointing out that under s. 12 of the impugned Act, the decision of the Board is
declared binding on all employers, though the working journalists are not bound by the
same and are entitled, if they are dissatisfied with it, to agitate for further revision by
raising industrial disputes between themselves and their employers and having them
adjudicated under the Industrial Disputes Act, 1947.
167. The test of reasonable restrictions which can be imposed on the fundamental
right enshrined in Art. 19(1)(g) has been laid down by this Court in two decisions :
168. In Chintaman Rao v. The State of Madhya Pradesh MANU/SC/0008/1950
[1950]1SCR759 Mahajan J. (as he then was) observed at p. 763 :-

"The phrase "reasonable restriction" connotes that the limitation imposed on a

person in enjoyment of the right should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public. The word
"reasonable" implies intelligent care and deliberation, that is, the choice of a
course which reason dictates. Legislation which arbitrarily or excessively invades
the right cannot be said to contain the quality of reasonableness and unless it
strikes a proper balance between the freedom guaranteed in article 19(1)(g),
and the social control permitted by clause (6) of article 19, it must be held to be
wanting in that quality." [cited with approval in Dwarka Prasad Laxmi Narain
v. The State of Uttar Pradesh & Ors. MANU/SC/0030/1954 : [1954]1SCR803
and in Ch. Tika Ramji v. State of Uttar Pradesh & Ors. MANU/SC/0008/1956 :
[1956]1SCR393 .
169. The State of Madras v. V. G. Rao MANU/SC/0013/1952 : 1952CriLJ966 was the
next case in which this phrase came to be considered by this Court and Patanjali Sastri
C.J. observed at p. 606 :"This Court had occasion in Dr. Khare's case MANU/SC/0004/1950 :
[1950]1SCR519 to define the scope of the judicial review under clause of (5) of
Art. 19 where the phrase "imposing reasonable restriction on the exercise of the
right" also occurs and four of the five judges participating in the decision
expressed the view (the other judge leaving the question open) that both the
substantive and the procedural aspects of the impugned restrictive law should
be examined from the point of view of reasonableness : that is to say, the Court
should consider not only factors such as the duration and the extent of the
restrictions but also the circumstances under which and the manner in which
their imposition has been authorised. It is important in this context to bear in
mind that the test of reasonableness, where-ever prescribed, should be applied
to each individual statute impugned, and no abstract standard, or general
pattern, of reasonableness can be laid down as applicable to all cases. The

nature of the right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the prevailing conditions at the
time, should all enter into the judicial verdict."
170. This criterion was approved of in State of West Bengal v. Subodh Gopal Bose &
Others MANU/SC/0018/1953 : [1954]1SCR587 where the present Chief Justice
further expressed his opinion that the fact of the statute being given retrospective
operation may also be properly taken into consideration in determining the
reasonableness of the restriction imposed in the interest of the general public [see also
a recent decision of this Court in Virendra v. State of Punjab MANU/SC/0023/1957 :
[1958]1SCR308 .
171. The appointment of a wage board for the purposes of fixing rates of wages could
not be and was not challenged as such because the constitution of such wages boards
has been considered one of the appropriate modes for the fixation of rates of wages.
The Industrial Disputes Act, 1947, can only apply when an industrial dispute actually
arises or is apprehended to arise between the employers and the employees in a
particular industrial establishment. Though under the amendment of that Act by the
Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, (36 of
1956), there is a provision for the appointment of a National Tribunal by the Central
Government for the adjudication of industrial disputes which in the opinion of the
Central Government involve questions of national importance or are of such a nature
that industrial establishments situated in more than one State are likely to be
interested in, or affected by, such dispute (Vide s. 7-B) the condition precedent,
however, is the existence of an industrial dispute or the apprehension of one. If the
wages for the employees of a particular industry have got to be fixed without such an
industrial dispute having arisen or being apprehended to arise, the only proper mode
of such fixation would be the appointment of wage boards for the purpose. They take
the place of Industrial Tribunals or National Industrial Tribunals and are generally
constituted of equal number of representatives of the employers and the employees in
that particular industry along with a quota if independent member or members one of
whom is appointed the chairman of the Board.
172. The main grievance of the petitioners, however, has been that the relevant
criteria for the fixation of rates of wages were not laid down in s. 9 of the Act.
Section 8 empowered the Central Government to constitute a wage board for fixing
rates of wages in respect of working journalists in accordance with the provisions of
the Act and s. 9 directed that in fixing such rates of wages the Board shall have regard
to the cost of living, the prevalent rates of wages for comparable employments, the
circumstances relating to the newspaper industry in different regions of the country
and to any other circumstances which to the Board may seem relevant. These criteria,
it was contended, were only relevant for fixing minimum rates of wages, though the
word "minimum" which had been used in the Bill No. 13 of 1955 as introduced in the
Rajya Sabha was deleted when the Act actually came to be passed and it was further
contended that the capacity of the Industry to pay which was an essential
circumstance to be taken into consideration in the fixation of wages was not set out as
one of the circumstances to be taken into consideration by the Board in fixing rates of
wages. It was also contended that the other circumstances which the Board was
directed to consider in addition to those specifically enumerated in s. 9(1) were such
as to the Board may seem relevant thus relegating these circumstances to the

subjective determination of the Board with the necessary consequence that no Court
or other authority could scrutinize the same objectively.
173. We do not propose to enter into any elaborate discussion on the question whether
it would be competent to us in arriving at a proper construction of the expression
"fixing rates of wages" to look into the Statement of Objects and Reasons attached to
the Bill No. 13 of 1955 as introduced in the Rajya Sabha or the circumstances under
which the word "minimum" came to be deleted from the provisions of the Bill relating
to rates of wages and the Wage Board and the fact of such deletion when the Act came
to be passed in its present form. There is a consensus of opinion that these are not
aids to the construction of the terms of the Statute which have of course to be given
their plain and grammatical meaning [See : Ashvini Kumar Ghosh & Anr. v. Arabinda
Bose & Anr. MANU/SC/0022/1952 : [1953]4SCR1 and Provat Kumar Kar and others
v. William Trevelyan Curtiez Parkar MANU/WB/0035/1950 : AIR1950Cal116 . It is
only when the terms of the statute are ambiguous or vague that resort may be had to
them for the purpose of arriving at the true intention of the legislature. No such
reference is, however, necessary in the case before us, even though perchance, the
expression "fixing rates of wages" be considered ambiguous in so far as it does not
specify whether the "wages" there are meant to be "living wages", "fair wages", or
"minimum wages". We have already stated in the earlier part of this judgment that the
Act was passed with a view to implement the recommendations of the Press
Commission's Report and we have already seen that the concept of minimum wage, as
adopted by the Press commission was to that of a bare subsistence or minimum wage
but what it termed a minimum wage was meant to provide for not merely the bare
subsistence of living, but for the efficiency of the worker, making provision also for
some measure of education, medical requirements and amenities. If this was the
concept of a minimum wage which the Legislature set about to implement, that
minimum was certainly higher than the bare subsistence or minimum wage, and, in
any event, required a consideration by the Wages Board of the capacity of the industry
to pay, even though the Press Commission itself did not think it necessary, to do so, it
having expressed the opinion that if a newspaper industry could not afford to pay to its
employees a minimum wage which would enable them to live decently and with
dignity, that newspaper had no right to exist.
174. This was the concept of a minimum wage which was sought to be implemented
by the legislature and for that purpose the capacity of the industry to pay was an
essential circumstance to be taken into consideration and the deletion of the word
"minimum", if at all, had the effect of widening the scope of the enquiry before the
Wage Board. If the word "minimum" had been used in relation to the rates of wages
and the Wage Board in the impugned Act, the Wage Board in its deliberations would
have been necessarily confined to a consideration of that aspect alone. But, by the
deletion of that word from the context the Wage Board was invested with a power to
determine the question of the fixation of rates of wages unfettered by any such
limitations and to fix the rates of wages in any proper manner having regard to the
circumstances of the case, whether the resultant wages would be a statutory minimum
wage or would approximate to a standard of wage, though having regard to the
economic conditions of our country at present they could not find it within their power
to fix living wages for the working journalists. The criteria which were specified in
s. 9(1); of the Act comprised also the prevalent rates of wages for comparable
employments. This criterion had no relation whatever to minimum wages. Reference
may be made in this connection to a decision of the Industrial Court in the case of
Nellimarla Jute Mills [1953] 1 L.L.J. 666, where it was held that the comparison with

rates of wages in other concerns, could be undertaken for determining fair wage and
the upper limit of wages but not for determining the minimum or floor level of wages
which should depend on the minimum requirements of the workers' family consisting
of three consumption units. This criterion was no doubt taken into consideration by the
members of the Committee on Fair Wages as also by the Press Commission and even
though the Press Commission considered that to be an essential ingredient of the
minimum wage as contemplated by it, we are not inclined to stress that circumstance
so much and come to the conclusion that what was contemplated in s. 9(1) was
merely a minimum wage and no other.
175. If, therefore, the criterion of the prevalent rates of wages for comparable
employments can on a true construction of s. 9(1) be considered consistent only with
the fixation of rates of wages which are higher than the bare subsistence or minimum
wage whether they be statutory minimum wage or fair wage or even living wage, it
could not be urged that the criteria, specified in s. 9(1) of the Act were relevant only
for fixation of minimum wages. The capacity of the industry to pay was therefore one
of the essential circumstances to be taken into consideration by the Wage Board
whether it be for the fixation of rates of wages or the scales of wages which, as we
have observed before, were included within the expression "rates of wages". This was
by no means an unimportant circumstance which could be assigned a minor role. It
was as important as the cost of living, and the prevalent rates of wages for comparable
employments and ought to have been specifically mentioned in s. 9(1). The Legislature
however, was either influenced in not maintaining it as such by reason of the view
taken by the Press Commission in that behalf or thought that the third criterion which
was specified in s. 9(1), viz., the circumstances relating to the newspaper industry in
different regions of the country was capable of including the same. Even here, there is
considerable difficulty in reconciling oneself to this mode of construction. The capacity
of the industry to pay, can only be considered on an industry-cum-region basis and
this circumstance from that point of view would be capable of being included in this
criterion, viz., the circumstances relating to the newspaper industry in different regions
of the country. Even if it were thus capable of being included, the minor role assigned
to it along with literacy of the population, the popularity of the newspapers,
predilections of the population in the matter of language and other circumstances of
the like nature prevailing in the different regions of the country would make it difficult
to imagine that this circumstance of the capacity of the industry to pay was really in
the mind of the Legislature, particularly when it is remembered that the Press
Commission attached no significance to the same. From that point of view, the
criticism of the petitioners would appear to be justified, viz., :- that it was not made
incumbent on the Board to consider the major factor of the capacity of the industry to
pay as an essential circumstance in fixing the rates of wages. It is, however, wellrecognized that the Courts would lean towards the constitutionality of an enactment
and if it is possible to read this circumstance as comprised within the category of
circumstances relating to the newspaper industry in different regions of the country,
the court should not strike down the provisions as in any manner whatever
unreasonable and violative of the fundamental right of the petitioners.
176. We are therefore of opinion that s. 9(1) did not eschew the consideration of this
essential circumstance, viz., the capacity of the industry to pay and it was not only
open but incumbent upon the Wage Board to consider that essential circumstance in
order to arrive at the fixation of the rates of wages of the working journalists.

177. The last criterion enumerated in s. 9(1) of the Act was "any other circumstance
which to the Board may seem relevant" and it was urged that this was left merely to
the subjective determination of the Board and the Board was at liberty to consider the
circumstances, if any, falling within this category in its own absolute discretion which
could not be controlled by any higher authority. If the matters were left to be
objectively determined then it would certainly be enquired into and the existence or
otherwise of such circumstances would be properly scrutinized in appropriate
proceedings. The manner in which, however, this criterion was left to be determined by
the Board on its subjective satisfaction was calculated to enable the Board to exercise
arbitrary powers in regard to the same and that was quite unreasonable in itself. The
case of Thakur Reghubir Singh v. Court of Wards, Ajmer & Ors. MANU/SC/0012/1953
: [1953]4SCR1049 , was pointed out as an illustration of such an arbitrary power
having been vested in the Court of Wards which could in its own discretion and on its
subjective determination assume the superintendence of the property of a landed
proprietor who habitually infringed the rights of his tenants. The provision was there
struck down because such subjective determination which resulted in the
superintendence of the property of a citizen being assumed could not be scrutinized
and the propriety thereof investigated by higher authorities.
178. This argument, however, does not help the petitioners because this criterion is on
a par with or ejusdem generis with the other criteria which have been specifically
enumerated in the earlier part of the section. The major and important criteria have
been specifically enumerated and it would be impossible for the Legislature
exhaustively to enumerate the other circumstances which would be relevant to be
considered by the Board in arriving at the fixation of the rates of wages. In the course
of the enquiry the Board might come across other relevant circumstances which would
weigh with it in the determination of the rates of wages and it would not be possible
for the Legislature to think of them or to enumerate the same as relevant
considerations and it was therefore, and rightly in our opinion, left to the Board to
determine the relevancy of those circumstances and take them into consideration while
fixing the rates of wages. If the principles which should guide the Board in fixing the
rates of wages were laid down with sufficient clarity and particularity and the criteria
so far as they were of major importance were specifically enumerated there was
nothing wrong in leaving other relevant considerations arising in the course of the
enquiry to the subjective satisfaction of the Board. The Board was, after all,
constituted of equal numbers of representative of employers and the employees and
they were best calculated to take into account all the relevant circumstances apart
from those which were specifically enumerated in the section.
179. It was, however, contended that the procedure to be followed by the Board for
fixing the rates of wages was not laid down and it was open to the Board to follow any
arbitrary procedure violating the principle of audi alteram partem and as such this also
was unreasonable. Section 20(2)(d) of the impugned Act gave power to the Central
Government to make rules inter alia in regard to the procedure to be followed by the
Board in fixing rates of wages and s. 11 provided that subject to any rules which might
be prescribed the Board may, for the purpose of fixing rates of wages, exercise the
same powers and follow the same procedure as an Industrial Tribunal constituted
under the Industrial Disputes Act, 1947, exercises or follows for the purpose of
adjudicating an industrial dispute referred to it. This was, however, an enabling
provision which vested in the Board the discretion whether to exercise the same
powers and follow the same procedure as an Industrial Tribunal. The Board was at

liberty not to do so and follow its own procedure which may be arbitrary or violative of
the principle of audi alteram partem.
180. It has to be remembered, however, that in the United Kingdom the Wage Councils
and the Central Co-ordinating Committees under the Wages Councils Act, 1945, and
the Agricultural Wages Board under the Agricultural Wages Regulations Act, 1924, also
are empowered to regulate their proceeding in such manner as they think fit. The
Wage Boards in Australia have also no formal procedure prescribed for them, though
the Wage Boards which are established under the amended Bombay Industrial
Relations Act, 1946, are enjoined to fallow the same procedure as an industrial court in
respect of industrial proceedings before it. It would not therefore be legitimate to hold
that the procedure to be followed by the wage board for fixing rates of wages must
necessarily be prescribed by the statute constituting the same. It is no doubt
contemplated in each of these statutes that rules of procedure may be prescribed; but
even though they may be so prescribed, it is left to the discretion of the wage boards
to regulate their procedure in such manner as they think fit, subject of course to the
rules thus prescribed. A wide discretion is thus left with the wage boards to prescribe
their own rules of procedure, but it does not therefore follow that they are entitled to
follow any arbitrary rules of procedure. The wage boards are responsible bodies
entrusted with the tax of gathering data and materials relevant for the determination
of the issues arising before them and even though they are not judicial tribunals but
administrative agencies they would elicit all relevant information and invite answers to
the questionnaire or representations from the parties concerned, hear evidence and
arrive at their determination after conforming to the principles of natural justice. Even
though they may perform, quasi-judicial functions, the exercise of arbitrary powers by
them would not be countenanced by any court or higher authority.
181. In the present case, however, we have in the forefront of the impugned Act a
provision as to the application of the Industrial Disputes Act, 1947, to working
journalists. No doubt certain specific provisions as to payment of gratuity, hours of
work and leave are specifically enacted, but when we come to the fixation of rates of
wages we find that a wage board has been constituted for the purpose. The principles
to be followed by the Wage Board for fixing rates of wages are also laid down and the
decision of the Board is to be published in the same manner as awards of industrial
courts under the Industrial Disputes Act. Then follows s. 11which talks of the powers
and procedure of the Board and there also, subject to any rules of procedure which
may be prescribed by the Central Government, the Board is empowered to exercise
the same powers and follow the same procedure as an Industrial Tribunal constituted
under the Industrial Disputes Act. If regard be had to this provision it is abundantly
clear that the intention of the legislature was to assimilate the Wage Board thus
constituted as much as possible to an Industrial Tribunal constituted under the
Industrial Disputes Act, 1947, and it was contemplated that the Board may for fixing
rates of wages exercise the same powers and follow the same procedure. The Decision
of the Board was to be binding on all the employers, though the working journalists
were at liberty to further agitate the question under the Industrial Disputes Act if they
were not satisfied with the decision of the Wage Board and wanted a further increase
in their rates of wages, thus determined. All these circumstances point to the
conclusion that even though the Board was not bound to exercise the same powers
and follow the same procedure as an industrial tribunal constituted under the
Industrial Disputes Act, the Board was, in any event, not entitled to adopt any
arbitrary procedure violating the principles of natural justice.

182. If on the construction of the relevant sections of the statute the functions which
the Wage Board was performing would be tantamount to laying down a law or rule of
conduct for the future so that all the employers and the employees in the industry not
only those who were participating in it in the present but also those who would enter
therein in the future would be bound by it, the dictum of Justice Holmes would apply
and the functions performed by the wage board could be characterised as legislative in
character. Where, however, as in the present case, the constitution of the Wage Board
is considered in the background of the application of the provisions of the Industrial
Disputes Act to the working journalists and the provisions for the exercise of the same
powers and following the same procedure as an industrial tribunal constituted under
the Industrial Disputes Act, it would be possible to argue that the Wage Board was not
exercising legislative functions but was exercising functions which were quasi-judicial
in character.
183. In this connection, it was also pointed out that the Legislature itself while
enacting the impugned Act did not consider these functions as legislative at all. The
Rules of Procedure and Conduct of Business in Lok Sabha (1957) provide in Rule No.
70 for a Bill involving proposals for the delegation of legislative power shall further be
accompanied by a memorandum explaining such proposals and drawing attention to
their scope and stating also whether they are of normal or exceptional character. There
is also a committee on subordinate legislation which is established for scrutinizing and
reporting to the House whether the powers to made regulations, rules, sub-rules, bylaws, etc., conferred by the Constitution or delegated by Parliament are being properly
exercised within such delegation (vide Rule 317 ibid). The constitution by the
Legislature of the Wages Board in the matter of the fixation of rates of wages was not
considered as a piece of delegated legislation in the memorandum regarding delegated
legislation appended to the draft Bill No. 13 of 1955 introduced in the Rajya Sabha on
September 28, 1955, and the only reference that was made there was to Clause 19 of
the Bill which empowered the Central Government to make rules in respect of certain
matters specified therein and it was stated that these were purely procedural matters
of a routine character an related inter alia to prescribing hours of work, payment of
gratuity, holidays, earned leave or other kinds of leave and the procedure to be
followed by the Minimum Wages Board in fixing minimum wages and the manner in
which its decisions may be published. Clause 19(3) of the Bill further provided that all
rules made under this section shall as soon as practicable after they are made, be laid
before both Houses of Parliament. These clauses were ultimately passed as s. 20 of the
Impugned Act but they were the only piece of delegated legislation contemplated by
the Legislature and were covered by the memorandum regarding the same which was
appended to the Bill. The decision of the Wage Board was not to be laid before both
the Houses of Parliament which would have been the case if the fixation of rates of
wages was a piece of delegated legislation. It was only to be published by the Central
Government after it was communicated to it by the Wage Board in such manner as the
Central Government thought fit, a provision which was akin to the publication of
awards of the industrial Tribunals by the appropriate Government under the provisions
of the Industrial Disputes Act, 1947. This circumstance also was pointed out as
indicative of the intention of the Legislature not to constitute the Wage Board a sublegislative authority. While recognising the force of these contentions we may observe
that it is not necessary for our purposes to determine the nature and character of the
functions performed by the Wage Board here. It is sufficient to say that the Wage
Board was not empowered or authorized to adopt any arbitrary procedure and flout the
principles of natural justice.

184. It was next contended that the restrictions imposed on newspaper establishments
under the terms of the impugned Act were unreasonable in so far as they would have
the effect of destroying the business of the petitioners and would therefore exceed the
bounds of permissible legislation under Art. 19(6). It was urged that the right to
impose reasonable restrictions on the petitioners' right to carry on business did not
empower the legislature to destroy the business itself and reliance was placed in
support of this proposition on Stone v. Farmers Loan and Trust Co. [1885] 116 U.S.
307, where it was observed :"From what has thus been said it is not to be inferred that this power of
limitation or regulation is itself without limit. This power to regulate is not a
power to destroy, and limitation is not the equivalent of confiscation."
185. Similar observations of Judicial Committee of the Privy Council in the Municipal
Corporation of the City of Toronto v. Virgo [1896] A.C. 88 and the Attorney General for
Ontario v. Attorney General for the Dominion [1896] A.C. 348 were also relied upon
and particularly the following observations in the former case :"But their Lordships think there is a marked distinction to be drawn between the
prohibition or prevention of a trade and the regulation or governance of it and
indeed a power to regulate and govern seems to imply the continued existence
of that which is sought to be regulated or governed."
186. These observations were considered by this Court in Saghir Ahmed v. State of
U.P. & Ors. MANU/SC/0110/1954 : [1955]1SCR707 and after considering the various
cases which were cited by both sides, this Court observed :
"Be that as it may, although in our opinion the normal use of the word
"restriction" seems to be in the sense of "limitation" and not "extinction", we
would on this occasion prefer not to express any final opinion on this matter"
and the Court ultimately wound up by saying that "whether the restrictions are
reasonable or not would depend to a large extent on the nature of the trade and
the conditions prevalent in it."
187. Even if the provisions of the impugned Act would not necessarily have the effect
of destroying the business of the petitioners but of crippling it and making it impossible
for the petitioners to continue the same except under onerous conditions, they would
have the effect of curtailing their circulation and drive them to seek government aid
and thereby impose an unreasonable burden on their right to carry on business and
would come within the ban of Art. 19(1)(g) read with Art. 13(2) of the Constitution.
188. Several provisions of the impugned Act were referred to in this context.
Section 2(f) of the Act which defines "working journalist" so as to include "proofreader"
was pointed out in this connection and it was urged that even though the Press
Commission Report recommended the exclusion of certain class of proof-readers from
the definition of working journalists the Legislature went a step further and included all
proof-readers within that definition thereby imposing upon the newspaper
establishments an unreasonable burden far in excess of what they were expected to
bear. The provision as to the notice in relation to the retrenchment of working
journalist was also extended beyond the limitations specified in s. 25F of the Industrial
Disputes Act, 1947, and was extended to six months in the case of an Editor and three
months in the case of any other working journalist. The provision with regard to

retrenchment was also made applicable retrospectively to all cases of retrenchment

which had occurred between July 14, 1954, and March 12, 1955; so also the payment
of gratuity was ordered not only in the cases usually provided for but also in cases
where a working journalist who had been in continuous service for not less than three
years voluntarily resigned from service from a newspaper establishment. The hours of
work prescribed were 144 hours only during any period of four consecutive weeks and
they were far less in number than the hours of work recommended by the Press
Commission Report. The fixation of rates of wages was entrusted to the Wage Board
which could fix any wages which it thought proper irrespective of the capacity of the
industry to pay and might be such as the industry could not bear. These provisions
taken each one by itself may not have the effect of destroying the petitioners' business
altogether or even crippling it in the manner indicated but taken cumulatively along
with the provisions contained in Sections 14 and 15 of the impugned Act which applied
the provisions of the Industrial Employment (Standing Orders) Act, 1946, and the
Employees' Provident Funds Act, 1952, to newspaper establishments would certainly
bring about that result and would therefore constitute an unreasonable restriction on
the petitioners' right to carry on business.
189. We shall deal with these contentions one by one.
190. There is no doubt that "proof-readers" were not all recommended by the Press
Commission to be included in the definition of working journalists, but it has to be
remembered that proof-readers occupy a very important position in the editorial staff
of a newspaper establishment. B. Sen Gupta in his "Journalism as a Career" (1955)
talks of the position of the proof-reader as follows :
"The proof-reader is another important link in the production of a newspaper. On
him depends, not to a small extent, the reputation of a paper. He has to be very
careful in correcting mistakes and pointing out any error of fact or grammar that
has crept into any news item or article through oversight or hurry on the part of
the sub-editor. He has not only to correct mistakes but also to see that
corrections are carried out", and the Kemsley Manual of Journalism has the
following passage at p. 337 :
"Having thus seen the proof-reader in action, let us consider in detail
what proof-reading denotes. It is primarily the art and practice of finding
mistakes in printed matter before publication and of indicating the
needed corrections. It includes the detection of variations between the
type and the copy from which it was set, mis-statements of facts, figures
or dates, errors in grammar, inaccuracies in quotations, and other
defects. Often, too, it happens that, though the proof-reader does not
feel justified in himself making a correction, he takes other action. If he
thinks there is a mistake but is not sure, he must query the proof so that
the editorial staff may decide. He may spot a libel, or think he has. In
either case it is important that the matter shall be queried and passed
back to editorial authority.
"It is obvious from this that proof-readers should be men of exceptional
knowledge and sound-judgment. They should be conversant with current affairs,
familiar with names of public men and quite sure how they should be spelled.
Some specialize in different branches of sport, others in theatre, the cinema,

music and so on. This saves much time in looking up books of reference,
though, of course, the books are there."
191. As a matter of fact, the Wage Board in the Schedule to its decision defines "proof
reader" as "a person who checks up printed matter or "Proof" with edited copy to
ensure strict conformity of the former with the latter. Factual discrepancies, slips of
spelling, grammar and syntax may also be discovered by him and either corrected or
get them corrected."
192. If this is the important role played by the proofreaders then no wonder that the
Legislature in spite of the recommendations of the Press Commission included them
also in the definition of working journalist. No doubt they would be entitled to higher
wages by reason of the fixation of rates of wages by the Wage Board but that would by
itself be no ground for holding the inclusion of proof-readers within the definition of
working journalist an unreasonable burden on newspaper establishments.
193. The provisions in regard to notice cannot be said to be per se unreasonable.
Apart from the recommendations of the Press Commission in that behalf, Halsbury's
Laws of England, Vol. 22, 2nd Edn., p. 150, para. 249, foot note (e), contains the
following statement in regard to the periods of reasonable notice to which persons of
various employments have been found entitled :194. Newspaper editor, from six months (Fox-Bourne v. Vernon & Co. Ltd., (1894) 10
T.L.R. 647; to twelve months (Grundy v. Sun Printing and Publishing
Association, 1916) 33 T.L.R. 77.
Sub-editor of a newspaper, six months (Chamberlain v. Bennett, (1892) 8 T.L.R. 234.
195. Foreign correspondent to The Times, six months period (Lowe v. Walter, (1892) 8
T.L.R. 358.
The Press Commission also recommended that the period of notice for the termination
of services should be based on the length of the service rendered and the nature of the
appointment. There could be no hard and fast rule as to what the notice period should
be. The practice upheld by law or by collective bargaining varies from country to
country. In England the practice established by some judicial decisions is that the
editor is entitled to a year's notice and an assistant editor to six months' notice. After
examining the provisions in regard to notice which are in vogue in England, the
Commission also noticed a decision in Bombay (Suit No. 735 of 1951 in the City civil
Court) where the judge concerned held that in the circumstances of the particular case
the plaintiff, an assistant editor was entitled to a notice of four months although in
normal times, he said, the rule adopted in England of six months should be the correct
rule to adopt in India and a longer period of notice was suggested for editors because
it was comparatively much more difficult to secure another assignment for a journalist
of that seniority and standing in the profession.
196. The period of six months, in the case of an editor, and three months, in the case
of any other working journalists prescribed under s. 3(2) of the impugned Act was
therefore not open to any serious objection.
197. The retrospective operation of this provision in regard to the period between July
14, 1954, and March 12, 1955, was designed to meet the few cases of those

employees in the editorial staff of the newspaper establishments who had been
retrenched by the managements anticipating the implementation of the
recommendations of the Press Commission. There was nothing untoward in that
provision also.
198. When we come however to the provision in regard to the payment of gratuity to
working journalists who voluntarily resigned from service from newspaper
establishments, we find that this was a provision which was not at all reasonable. A
gratuity is a scheme of retirement benefit and the conditions for its being awarded
have been thus laid down in the Labour Court decisions in this country.
199. In the case of Ahmedabad Municipal Corporation [1955] L.A.C. 55 it was
observed at p. 158 :"The fundamental principle in allowing gratuity is that it is a retirement benefit
for long services, a provision for old age and the trend of the recent authorities
as borne out from various awards as well as the decisions of this Tribunal is in
favour of double benefit.... We are, therefore, of the considered opinion that
Provident Fund provides a certain measure of relief only and a portion of that
consists of the employees' wages, that he or his family would ultimately receive,
and that this provision in the present day conditions in wholly insufficient relief
and two retirement benefits when the finances of the concern permit ought to
be allowed." (See also Nundydroog Mines Ltd. [1956] L.A.C. 265.
200. These were cases however of gratuity to be allowed to employees on their
retirement. The Labour Court decisions have however awarded gratuity benefits on the
resignation of an employee also. In the case of Cipla Ltd. [1955] 2 L.L.J. 355, the
Court took into consideration the capacity of the concern and other factors therein
referred to and directed gratuity on full scale... which included... (2) on voluntary
retirement or resignation of an employee after 15 years continuous service.
201. Similar considerations were imported in the case of the Indian Oxygen &
Acetylene Co., Ltd. [1956] 1 L.L.J. 435, where it was observed :
"It is now well-settled by a series of decisions of the Appellate Tribunal that
where an employer company has the financial capacity the workmen would be
entitled to the benefit of gratuity in addition to be benefits of the Provident
Fund. In considering the financial capacity of the concern what has to be seen is
the general financial stability of the concern. The factors to be considered before
granting a scheme of gratuity are the broad aspects of the financial condition of
the concern, its profit earning capacity, the profit earned in the past, its
reserves and the possibility of replenishing the reserves, the claim of capital put
having regard to the risk involved, in short the financial stability of the concern.
202. There also the court awarded gratuity under ground No. 2, viz., on retirement or
resignation of an employee after 15 years of continuous service and 15 months' salary
or wage.
203. It will be noticed from the above that even in those cases where gratuity was
awarded on the employee's resignation from service, it was granted only after the
completion of 15 years continuous service and not merely on a minimum of 3 years
service as in the present case. Gratuity being a reward for good, efficient and faithful

service rendered for a considerable period (Vide Indian Railway Establishment Code,
Vol. I at p. 614 - Ch. XV, para. 1503), there would be no justification for awarding the
same when an employee voluntarily resigns and brings about a termination of his
service, except in exceptional circumstances.
One such exception is the operation of what is termed "The conscience clause". In
Fernand Terrou and Lucion Solal's Legislation for Press, Film and Radio in the World today (a series of studies published by UNESCO in 1951) the following passage occurs in
relation to "Journalists' Working Conditions and their Moral Rights", at p. 404 :
"Among the benefits which the status of professional journalist may confer
(whether it stems from the law or from an agreement) is one of particular
importance, since it goes to the very core of the profession. It concerns freedom
of information. It is intended to safeguard the journalist's independence, his
freedom of thought and his moral rights. It constitutes what has been called in
France the "conscience clause". The essence of this clause is that when a
journalist's integrity is seriously threatened, he may break the contract binding
him to the newspaper concern, and at the same time receive all the indemnities
which are normally payable only if it is the employer who breaks the contract. In
France, accordingly, under the law of 1935, the indemnity for dismissal which,
as we have seen, may be quite substantial, is payable even when the contract is
broken by a professional journalist, in cases where his action is inspired by "a
marked change in the character or policy of the newspaper or periodical, if such
change creates for the person employed a situation prejudicial to his honour, his
reputation, or in a general way his moral interests.
"This moral right of a journalist is comparable to the moral right of an author or
artist, which the law of 1935 was the first to recognize, has since been
acknowledged in a number of countries. It was stated in the collective contract
of January 31, 1938, in Poland in this form : "The following are good and
sufficient reasons for a journalist to cancel his contract without warning; (a) the
exertion of pressure by an employer upon a journalist to induce him to perform
an immoral action; (b) a fundamental change in the political outlook of the
journal, proclaimed by public declaration or otherwise made manifest, if the
journalist's employment would thereafter be contrary to his political opinions or
the dictates of his conscience."
A similar clause is to be found in Switzerland, in the collective agreement signed on
April 1, 1948, between the Geneva Press Association and the Geneva Union of
Newspaper Publishers :
"If a marked change takes place in the character or fundamental policy of the
newspaper, if the concern no longer has the same moral, political or religious
character that it had at the moment when an editorial employee was engaged
and if this change is such as to prejudice his honour, his reputation or, in a
general way, his moral interests, he may demand his instant release. In these
circumstances he shall be entitled to an indemnity.... This indemnity is payable
in the same manner as was the salary."
204. The other exception is where the employee has been in continuous service of the
employer for a period of more than 15 years.

205. Where however an employee voluntarily resigns from service of the employer
after a period of only three years, there will be no justification whatever for awarding
him a gratuity and any such provision of the type which has been made in s. 5(1)(a)
(iii) of the Act would certainly be unreasonable. We hold therefore that this provision
imposes an unreasonable restriction on the petitioners' right to carry on business and
is liable to be struck down as unconstitutional.
206. The provision in regard to the hours of work also cannot be considered
unreasonable having regard to the nature and quality of the work to be done by
working journalists.
207. That leaves the considerations of fixation of rates of wages by the Wage Board.
As we have already observed, the Wage Board is constituted of equal numbers of
representatives of the newspaper establishments and the working journalists with an
independent chairman at its head and principles for the guidance of the Wage Board in
the fixation of such rates of wages directing the Wage Board to take into consideration
amongst other circumstances the capacity of the industry to pay have also been laid
down and it is impossible to say that the provisions in that behalf are in any manner
unreasonable. It may be that the decision of the Wage Board may be arrived at
ignoring some of these essential criteria which have been laid down in s. 9(1) of the
Act or that the procedure followed by the Wage Board may be contrary to the
principles of natural justice. But that would affect the validity of the decision itself and
not the constitution of the Wage Board which as we have seen cannot be objected to
on this ground.
208. The further provision contained in s. 17 of the Act in regard to the recovery of
money due from an employer empowering the State Government or any such authority
appointed in that behalf to issue a certificate for that amount to the collector in the
same manner as an arrear of land revenue was also impeached by the petitioners on
this ground. That provision, however, relates only to the mode of recovery and not to
the imposition of any financial burden as such on the employer. We shall have occasion
to deal with this provision in connection with the alleged infringement of the
fundamental right under Art. 14 hereafter. We do not subscribe to the view that such a
provision infringes the fundamental right of the petitioners to carry on business under
Art. 19(1)(g).
209. This attack of the petitioners on the constitutionality of the impugned Act under
Art. 19(1)(g), viz., that it violates the petitioners' fundamental right to carry on
business, therefore, fails except in regard to s. 5(1)(a)(iii) thereof which being clearly
severable from the rest of the provisions, can be struck down as unconstitutional
without invalidating the other parts of the impugned Act.
210. Re. Article 14.
The question as formulated is that the impugned Act selected the working journalists
for favoured treatment by giving them a statutory guarantee of gratuity, hours of work
and leave which other persons in similar or comparable employment had not got and in
providing for the fixation of their salaries without following the normal procedure
envisaged in the Industrial Disputes Act, 1947. The following propositions are
advanced :-

1. In selecting the Press industry employers from all industrial employers

governed by the ordinary law regulating industrial relations under the Industrial
Disputes Act, 1947, and Act I of 1955, the impugned Act subjects the Press
industry employers to discriminatory treatment.
2. Such discrimination lies in
(a) singling out newspaper employees for differential treatment;
(b) saddling them with a new burden in regard to a section of their
workers in matters of gratuities, compensation, hours of work and
wages;
(c) devising a machinery in the form of a Pay Commission for fixing the
wages of working journalists;
(d) not prescribing the major criterion of capacity to pay to be taken into
consideration;
(e) allowing the Board in fixing the wages to adopt any arbitrary
procedure even violating the principle of audi alteram partem;
(f) permitting the Board the discretion to operate the procedure of the
Industrial Disputes Act for some newspapers and any arbitrary procedure
for others;
(g) making the decision binding only on the employers and not on the
employees, and
(h) providing for the recovery of money due from the employers in the
same manner as an arrear of land revenue.
3. The classification made by the impugned Act is arbitrary and unreasonable, in
so far as it removes the newspaper employers vis-a-vis working journalists from
the general operation of the Industrial Disputes Act, 1947, and Act I of 1955.
211. The principle underlying the enactment of Art. 14 has been the subject-matter of
various decisions of this Court and it is only necessary to set out the summary thereof
given by Das J. (as he then was) in Budhan Choudhry & Others v. The State of Bihar
MANU/SC/0047/1954 : 1955CriLJ374 :"The provisions of article 14 of the Constitution have come up for discussion
before this Court in a number of cases, namely, Chiranjit Lal Chowdhuri v. The
Union of India MANU/SC/0009/1950 : [1950]1SCR869 M, The State of
Bombay v. F. N. Balsara MANU/SC/0009/1951 : [1951]2SCR682 , The State of
West Bengal v. Anwar Ali Sarkar MANU/SC/0033/1952 : 1952CriLJ510 , Kathi
Raning
Rawat
v. The
State
of
Saurashtra
MANU/SC/0041/1952 :
1952CriLJ805 , Lachmandas Kewalaram Ahuja v. The State of Bombay
MANU/SC/0034/1952 : 1952CriLJ1167 , Quasim Razvi v. The State of
Hyderabad MANU/SC/0021/1953 : 1953CriLJ911 , and Habeeb Mohamad
v. The State of Hyderabad MANU/SC/0080/1953 : 1953CriLJ1158 . It is,

therefore, not necessary to enter upon any lengthy discussion as to the

meaning, scope and effect of the article in question. It is now well-established
that while article 14 forbids class legislation, it does not forbid reasonable
classification for the purposes of legislation. In order, however, to pass the test
of permissible classification two conditions must be fulfilled, namely, (i) that the
classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group
and (ii) that that differentia must have a rational relation to the object sought to
be achieved by the statute in question. The classification may be founded on
different bases; namely, geographical, or according to objects or occupations or
the like. What is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration. It is also wellestablished by the decisions of this Court that article 14condemns discrimination
not only by a substantive law but also by a law of procedure."
It is the light of these observations that we shall now proceed to consider whether the
impugned Act violates the fundamental right of the petitioners guaranteed under
Art. 14 of the Constitution.
212. We have already set out what the Press Commission had to say in regard to the
position of the working journalists in our country. A further passage from the Report
may also be quoted in this context :
"It is essential to realise in this connection that the work of a journalist
demands a high degree of general education and some kind of specialised
training. Newspapers are a vital instrument for the education of the masses and
it is their business to protect the rights of the people, to reflect and guide public
opinion and to criticize the wrong done by any individual or organization
however high placed. They thus form an essential adjunct to democracy. The
profession must, therefore, be manned by men of high intellectual and moral
qualities. The journalists are in a sense creative artists and the public rightly or
wrongly, expect from them a general omniscience and a capacity to express
opinion on any topic that may arise under the sun. Apart from the nature of
their work the conditions under which that work is to be performed, are peculiar
to this profession. Journalists have to work at very high pressure and as most of
the papers come out in the morning, the journalists are required to work late in
the night and round the clock. The edition must go to press by a particular time
and all the news that breaks before that hour has got to find its place in that
edition. Journalism thus becomes a highly specialized job and to handle it
adequately a person should be well-read, have the ability to size up a situation
and to arrive quickly at the correct conclusion, and have the capacity to stand
the stress and strain of the work involved. His work cannot be measured, as in
other industries, by the quantity of the output, for the quality of work is an
essential element in measuring the capacity of the journalists. Moreover
insecurity of tenure is a peculiar feature of this profession. This is not to say
that no insecurity exists in other professions but circumstances may arise in
connection with profession of journalism which may lead to unemployment in
this profession, which would not necessarily have that result in other
professions. Their security depends to some extent on the whims and caprices
of the proprietors. We have come across cases where a change in the ownership
of the paper or a change in the editorial policy of the paper has resulted in a
considerable change in the editorial staff. In the case of other industries a

change in the proprietorship does not normally entail a change in the staff. But
as the essential purpose of a newspaper is not only to give news but to educate
and guide public opinion, a change in the proprietorship or in the editorial policy
of the paper may result and in some cases has resulted in a wholesale change
of the staff on the editorial side. These circumstances, which are peculiar to
journalism must be borne in mind in framing any scheme for improvement of
the conditions of working journalists." (para. 512).
213. These were the considerations which weighed with the Press Commission in
recommending the working journalists for special treatment as compared with the
other employees of newspaper establishments in the matter of amelioration of their
conditions of service.
214. We may also in this connection refer to the following passage from the Legislation
for Press, Film and Radio in the world to-day (a series of studies published by UNESCO
in 1951) (supra) at p. 403 :"Under certain systems, special advantages more extensive than those enjoyed
by ordinary employees are conferred upon journalists. These may be sanctioned
by the law itself. For instance, certain Latin American countries have enacted
legislation in favour of journalists which is in some cases very detailed and farreaching and offers special benefits, more particularly in the form of protection
against the risk of sickness or disability, dismissal or retirement. In Brazil,
professional journalists, who must be of Brazilian birth and nationality, enjoy
very considerable tax exemptions.
"In France, the law of 29 March, 1935, conferred on journalists substantial
advantages which at the time were far in advance of general social legislation.
Thus, for example, this law gives all professional journalists the right to an
annual holiday with pay. One month's holiday is granted to journalists who have
been working for a newspaper or periodical for at least one year, and five weeks
to journalists whose contract has been in force for 10 years at least. Should a
contract of indefinite duration be terminated, the journalist is entitled to one or
two month's notice and also to an indemnity for dismissal which may not be less
than one month's salary per year or part of a year of service, at the most recent
rate of pay. However, if the period of service exceeds 15 years, the amount of
the indemnity is fixed, as we have seen, by an arbitral committee."
215. The working journalists are thus a group by themselves and could be classified as
such apart from the other employees of newspaper establishments and if the
Legislature embarked upon a legislation for the purpose of ameliorating their
conditions of service there was nothing discriminatory about it. They could be singled
out thus for preferential treatment against the other employees of newspaper
establishments. A classification of this type could not come within the ban of Art. 14.
The only thing which is prohibited under this article is that persons belonging to a
particular group or class should not be treated differently as amongst themselves and
no such charge could be leveled against this piece of legislation. If this group of
working journalists was specially treated in this manner there is no scope for the
objection that that group had a special legislation enacted for its benefit or that a
special machinery was created, for fixing the rates of its wages different from the
machinery employed for other workmen under the Industrial Disputes Act, 1947. The
payment of retrenchment compensation and gratuities, the regulation of their hours of

work and the fixation of the rates of their wages as compared with those of other
workmen in the newspaper establishments could also be enacted without any such
disability and the machinery for fixing their rates of wages by way of constituting a
wage board for the purpose could be similarly devised. There was no industrial dispute
as such which had arisen or was apprehended to arise as between the employers and
the working journalists in general, though it could have possibly arisen as between the
employers in a particular newspaper establishment and its own working journalists.
What was contemplated by the provisions of the impugned Act however, was a general
fixation of rates of wages of working journalists which would ameliorate the conditions
of their service and the constitution of a wage board for this purpose was one of the
established modes of achieving that object. If, therefore, such a machinery was
devised for their benefit, there was nothing objectionable in it and there was no
discrimination as between the working journalists and the other employees of
newspaper establishments in that behalf. The capacity of the industry to pay was
certainly to be taken into consideration by the Wage Board, as we have already seen
before, and the procedure of the Board also was assimilated to that adopted by an
industrial tribunal under the Industrial Disputes Act, 1947, or was, in any event, to be
such as would not be against the principle of audi alteram partem or the principles of
natural justice. There was no occasion, if the Wage Board chose to exercise the same
powers and follow the same procedure as the Industrial Tribunal under the Industrial
Disputes Act, 1947, for it to discriminate between one set of newspaper
establishments and others. If it in fact assumed unto itself the powers of the Industrial
Tribunal it would be bound to follow the procedure prescribed under the Industrial
Disputes Act, 1947, and if it were thus to follow the same, no discrimination could ever
be made in the manner suggested. The decision of the Wage Board was no doubt
made binding only on the employers and the working journalists were at liberty to
agitate the question of increase in their wages by raising an industrial dispute in regard
thereto. Once the rates of wages were fixed by the Wage Board, it would normally
follow that they would govern the relationship between the employers and the working
journalists, but if liberty was reserved to the working journalists for further increase in
their wages under the provisions of the Industrial Disputes Act there was nothing
untoward in that provision and that did not by itself militate against the position that
what was done for the benefit of the working journalists was a measure for the
amelioration of their conditions of service as a group by themselves. There could not
be any question of discrimination between the employers on the one hand and the
working journalists on the other. They were two contesting parties ranged on opposite
sides and the fact that one of them was treated in a different manner from the other in
the matter of the amelioration of the conditions of service of the weaker party would
not necessarily vitiate the decision of the Wage Board. The weaker of the two parties
could certainly be treated as a class by itself and the conferment of special benefits in
the matter of trying to ameliorate their conditions of service could certainly not be
discriminatory.
216. The provisions contained in s. 17 of the Act in regard to the recovery of money
due from the employers in the same manner as an arrear of land revenue also was not
discriminatory. In the conflict between the employers and the employees it very often
came about that the employers did not implement the measures which had been
enacted for the benefit of the employees and the employees were thus hard put to
realise and cash those benefits. Even the Industrial Disputes Act, 1947, contained a
like provision in s. 33C thereof (vide the amendment incorporated therein by Act 36 of
1956) which in its turn was a reproduction of the old s. 25-I which had been inserted
therein by Act 43 of 1953. It may be remembered that if the provisions of the

Industrial Disputes Act, 1947, which was a general Act, had been made applicable to
the working journalists there would have been no quarrel with the same. Much less
there could be any quarrel with the introduction of s. 17 into the impugned Act when
the aim and object of such provision was to provide the working journalists who were a
group by themselves from amongst employees employed in the newspaper
establishments with a remedy for the recovery of the monies due to them in the same
manner as the workmen under the Industrial Disputes Act, 1947. We do not see
anything discriminatory in making such a provision for the recovery of monies due by
the employers to these working journalists.
217. Similar is the position in regard to the alleged discrimination between Press
industry employers on the one hand and the other industrial employers on the other.
The latter would certainly be governed by the ordinary law regulating industrial
relations under the Industrial Disputes Act, 1947. Employers qua the working
journalists again would be a class by themselves and if a law was enacted to operate
as between them in the manner contemplated by the Act that could not be treated as
discriminatory. If measures have got to be devised for the amelioration of the
conditions of working journalists who are employed in the newspaper establishments,
the only way in which it could be done was by directing this piece of legislation against
the Press Industry employers in general. Even considering the Act as a measure of
social welfare legislation the State could only make a beginning somewhere without
embarking on similar legislations in relation to all other industries and if that was done
in this case no charge could be leveled against the State that it was discriminating
against one industry as compared with the others. The classification could well be
founded on geographical basis or be according to objects or occupations or the like.
The only question for consideration would be whether there was a nexus between the
basis of classification and the object of the Act sought to be challenged. In our opinion,
both the conditions of permissible classification were fulfilled in the present case. The
classification was based on an intelligible differentia which distinguished the working
journalists from other employees of newspaper establishments and that differentia had
a rational relation to the object sought to be achieved, viz., the amelioration of the
conditions of service of working journalists.
218. This attack on the constitutionality of the Act also therefore fails.
219. Re. Article 32 :In regard to the infringement of Art. 32, the only ground of attack has been that
the impugned Act did not provide for the giving of the reasons for its decision by
the Wage Board and thus rendered the petitioners' right to approach the
Supreme Court for enforcement of their fundamental right nugatory. It is
contended that the right to apply to the Supreme Court for a writ of certiorari
required an order infringing a fundamental right, that such a right was itself a
fundamental right and any legislation which attempted to restrict or defeat this
right was an infraction of Art. 32 and was as such void. It is further contended
that a writ of certiorari could effectively be directed only against a speaking
order, i.e., an order disclosing reasons, and if a statute enabled the passing of
an order that need give no reasons such statute attempted to sterilize the
powers of this Court from investigating the validity of the order and was
therefore violative of Art. 32.

220. Learned Counsel for the petitioners has relied upon a decision of the English
Court in Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw[1951] 1
K.B. 711 where Lord Goddard C.J. observed at p. 718 :"Similarly anything that is stated in the order which an inferior court has made
and which has been brought up into this court can be examined by the court, if
it be a speaking order, that is to say, an order which sets out the grounds of the
decision. If the order is merely a statement of conviction that there shall be a
fine of 40s., or an order of removal or quashing a poor rate, there is an end of
it, this court cannot examine further. If the inferior court tells this court why it
had done what it has and makes it part of its order, this court can examine it."
221. This decision was affirmed by the Court of Appeal (and the decision of the Court
of Appeal is reported in Rex v. Northumberland Compensation Appeal Tribunal, Ex
parte Shaw [1952] 1 K.B. 338 and while doing so Denning L.J. (as he then was)
discussed at p. 352, what was it that constituted the record :"What, then, is the record ? ..... Following these cases I think the record must
contain at least the document which initiates the proceedings; the pleadings if
any; and the adjudication; but not the evidence, nor the reasons, unless the
tribunal chooses to incorporate them. If the tribunal does state its reasons, and
these reasons are wrong in law, certiorari lies to quash the decision."
222. This decision only affirmed that certiorari could lie only if an order made by the
inferior tribunal was a speaking order. It did not lay down any duty on the inferior
tribunal to set out the reasons for its order but only pointed out that if no reasons
were given it would be impossible for the High Court to interfere by exercising its
prerogative jurisdiction in the matter of certiorari.
223. A more relevant decision on this point is that of this Court in A. K. Gopalan v. The
State of madras and Anr. MANU/SC/0012/1950 : 1950CriLJ1383 . In that case the
provision of law which was impugned amongst others was one which prevented the
detenu on pain of prosecution from disclosing to the Court the grounds of his detention
communicated to him by the detaining authority. This provision was struck down as
ultra vires and void. The reason given by Mahajan J. (as he then was) is stated at p.
243 :
"This Court would be disabled from exercising its functions under article 32 and
adjudicating on the point that the grounds given satisfy the requirements of the
sub-clause if it is not open to it to see the grounds that have been furnished. It
is a guaranteed right of the person detained to have the very grounds which are
the basis of the order of detention. This Court would be entitled to examine the
matter and to see whether the grounds furnished are the grounds on the basis
of which he has been detained or they contain some other vague or irrelevant
material. The whole purpose of furnishing a detained person with the grounds is
to enable him to make a representation refuting these grounds and of proving
his innocence. In order that this Court may be able to safeguard this
fundamental right and to grant him relief it is absolutely essential that the
detenu is not prohibited under penalty of punishment to disclose the grounds to
the Court and no injunction by law can be issued to this Court disabling it from
having a look at the grounds. Section 14 creates a substantive offence if the
grounds are disclosed and it also lays a duty on the Court not to permit the

disclosure of such grounds. It virtually amounts to a suspension of a guaranteed

right provided by the Constitution inasmuch as it indirectly by a stringent
provision makes administration of the law by this Court impossible and at the
same time it deprives a detained person from obtaining justice from this Court.
In my opinion, therefore, this section when it prohibits the disclosure of the
grounds contravenes or abridges the rights given by Part III to a citizen and is
ultra vires the powers of Parliament to that extent."
224. It is no doubt true that if there was any provision to be found in the impugned
Act which prevented the Wage Board from giving reasons for its decision, it might be
construed to mean that the order which was thus made by the Wage Board could not
be a speaking order and no writ of certiorari could ever be available to the petitioners
in that behalf. It is also true that in that event this Court would be powerless to
redress the grievances of the petitioners by issuing a writ in the nature of certiorari
and the fundamental right which a citizen has of approaching this Court under
Art. 32 of the Constitution would be rendered nugatory.
225. The position, however, as it obtains in the present case is that there is no such
provision to be found in the impugned Act. The impugned Act does not say that the
Wage Board shall not give any reason for its decision. It is left to the discretion of the
Wage Board whether it should give the reasons for its decision or not. In the absence
of any such prohibition it is impossible for us to hold that the fundamental right
conferred upon the petitioners under Art. 32 was in any manner whatever sought to be
infringed. It may be noted that this point was not at all urged in the petitions which
the petitioners had filed in this Court but was taken up only in the course of the
arguments by the learned Counsel for the petitioners. It appears to have been a clear
after-thought; but we have dealt with the same as it was somewhat strenuously urged
before us in the course of the arguments. We are of the opinion that the Act cannot be
challenged as violative of the fundamental right enshrined in Art. 32 of the
Constitution.
226. In regard to the constitutionality of the Act therefore we have come to the
conclusion that none of the provisions thereof is violative of the fundamental rights
enshrined in Arts. 19(1)(a), 19(1)(g), 14 and/or 32 save the provision contained in
s. 5(1)(a)(iii) of the Act which is violative of the fundamental right guaranteed under
Art. 19(1)(g) of the Constitution and is therefore unconstitutional and should be struck
down.
227. Apart from challenging the vires of the Act dealt with above, the petitioners
contend that the decision of the Wage Board itself is illegal and void because :
(1) Re-constitution of the Board was ultra vires and unauthorised by the Act as
it stood at the time, the rules having been published only on July 30, 1956.
(2) The decision by a majority was unwarranted by the Act and since there was
no provision in the Act, the Rules providing for the same went beyond the Act
and were therefore ultra vires.
(3) The procedure followed by the Board offended the principles of natural
justice and was therefore invalid;
(4) The decision was invalid, because

(a) no reasons were given, (b) nor did it disclose what considerations prevailed
with the Board in arriving at its decision;
(5) Classification on the basis of gross revenue was illegal and unauthorised by
the Act.
(6) Grouping into chains or multiple units was unauthorised by the Act.
(7) The Board was not authorised by the Act to fix the salaries of journalists
except in relation to a particular industrial establishment and not on an All-India
basis of all newspapers taken together;
(8) The decision was bad as it did not disclose that the capacity to pay of any
particular establishment was ever taken into consideration.
(9) The Board had no authority to render a decision which was retrospective in
operation.
(10) The Board had no authority to fix scales of pay for a period of 3 years
(subject to review by the Govt. by appointing another Wage Board at the end of
these 3 years) and
(11) The Board was handicapped for want of Cost of Living Index.
228. The position in law is that the decision would be illegal on any of the following
three grounds, viz.,
(A) Because the Act under which it was made was ultra vires; [See Mohammad
Yasin v. Town Area Committee, Jalalabad & Anr. MANU/SC/0012/1952 :
[1952]1SCR572 . and Himmatlal Harilal Mehta v. State of Madhya Pradesh
MANU/SC/0021/1954 : [1954]1SCR1122 .
(B) Because the decision itself infringed the fundamental rights of the
petitioners. [See Bidi Supply Co. v. Union of India & Ors. MANU/SC/0040/1956
: [1956]29ITR717(SC) .
(C) Because the decision was ultra vires the Act. [See Pandit Ram Narain
v. State of Uttar Pradesh & Ors. MANU/SC/0014/1956 : [1956]1SCR664 .
229. The decision of the Wage Board before us cannot be challenged on the grounds
that the impugned Act under which the decision is made is ultra vires or that the
decision itself infringes the fundamental rights of the petitioners. In the circumstances,
the challenge must be confined only to the third ground, viz., that the decision is ultra
vires the Act itself.
230. Re. (1). The first ground attack is based on the circumstance that Shri K. P.
Kesava Menon who was originally appointed a member of the Wage Board resigned on
or about June 21, 1956, which resignation was accepted by the Central Government by
a notification dated July 14, 1956, and by the same notification the Central
Government appointed in his place Shri K. M. Cherian and thus reconstituted the Wage
Board. There was no provision in the Act for the resignation of any member from his

membership or for the filling in of the vacancy which thus arose in the membership of
the Board. A provision in this behalf was incorporated only in the Working Journalists
Wage Board Rules, 1956, which were published by a notification in the Gazette of India
Part II-Section 3 on date July 31, 1956. It was, therefore, contended that such reconstitution of the Board by the appointment of Shri K. M. Cherian in place of Shri K. P.
Kesava Menon was unauthorised by the Act as it then stood and the Board which
actually published the decision in question was therefore not properly constituted.
231. It is necessary to remember in this connection that s. 8 of the Act empowered the
Central Government by notification in the Official Gazette to constitute a Wage Board.
This power of constituting the Wage Board must be construed having regard to s. 14 of
the General clauses Act, 1897, which says that where by any Central Act or Regulation
made after the commencement of the Act, any power is conferred then, unless a
different intention appears that power may be exercised from time to time as occasion
arises. If this is the true position there was nothing objectionable in the Central
Government constitution the Board on the resignation of Shri K. P. Kesava Menon being
accepted by it. The Wage Board can in any event be deemed to have been constituted
as on that date, viz., July 14, 1956, when all the 5 members within the contemplation
of s. 8(2) of the Act were in a position to function. Shri K. P. Kesava Menon had not
attended the preliminary meeting of the Board which had been held on May 26, 1956,
and the real work of the Wage Board was done after the appointment of Shri K. M.
Cherian in his place and stead and it was only after July 14, 1956, that the Wage
Board as a whole constituted as it was on that date really functioned as such. The
objection urged by the petitioners in this behalf is too technical to make any
substantial difference in regard to the constitution of the Wage Board and its
functioning.
232. Re. 2. This ground ignores the fact that the Working Journalists Wage Board
Rules, 1956, which were published on July 31, 1956, were made by the Central
Government in exercise of the power conferred upon it by s. 20 of the Act. That
section empowered the Central Government to make rules to carry out the purposes of
the Act, in particular to provide for the procedure to be followed by the Board in fixing
rates of wages. Rule 8 provided that every question considered at a meeting of the
Board was to be decided by a majority of the votes of the members present and
voting. In the event of equality of votes the Chairman was to have a casting vote...
This Rule therefore prescribed that the decision of the Board could be reached by a
majority and this was the rule which was followed by the Board in arriving at its
decision. The rule was framed by the Central Government by virtue of the authority
vested in it under s. 20 of the Act and was a piece of delegated legislation which if the
rules were laid before both the Houses of Parliament in accordance with s. 20(3) of the
Act acquired the force of law. After the publication of these rules, they became a part
of the Act itself and any decision thereafter reached by the Wage Board by a majority
as prescribed therein was therefore lawful and could not be impeached in the manner
suggested.
233. Re. (3). This ground has reference to the alleged violation by the Wage Board of
the principles of natural justice. It is urged that the procedure established under the
Industrial Disputes Act was not in terms prescribed for the Wage Board, the Board
having been given under s. 11 of the Act the discretion for the purpose of fixing rates
of wages to exercise the same powers and follow the same procedure as an Industrial
Tribunal constituted under the Industrial Disputes Act, 1947, while adjudicating upon
an industrial dispute referred to it. On two distinct occasions, however, the Wage Board

definitely expressed itself that it had the powers of an Industrial Tribunal constituted
under the Industrial Disputes Act. The first occasion was when the questionnaire was
issued by the Wage Board and in the questionnaire it mentioned that it had such
powers under s. 11 of the Act. The second occasion arose when a number of
newspapers and journals to whom the questionnaire was addressed failed to send their
replies to the same and the Wage Board at its meeting held on August 17, 1956,
reiterated the position and decided to issue a Press Note requesting the newspapers
and journals to send their replies as soon as possible, inviting their attention to the
fact that the Board had powers of an Industrial Tribunal under the Act and if
newspapers failed to send their replies, the Board would be compelled to take further
steps in the matter. This is clearly indicative of the fact that the Wage Board did seek
to exercise the powers under the terms of s. 11 of the Act. Even though, the exercise
of such powers was discretionary with the Board, the Board itself assumed these
powers and assimilated its position to that of an Industrial Tribunal constituted under
the Industrial Disputes Act, 1947. If, then, it assumed those powers, it only followed
that it was also bound to follow the procedure which an Industrial Tribunal so
constituted was bound to follow.
234. It is further urged that in the whole of the questionnaire which was addressed by
the Wage Board to the newspaper establishments, there was no concrete proposal
which was submitted by the Wage Board to them for their consideration. The only
question which was addressed in this behalf was Question No. 4 in Part "A" which
asked the newspaper establishments whether the basic minimum wage, dearness
allowance and metropolitan allowance suggested by the Press Commission were
acceptable to them and if not, what variations would they suggest and why. The
question as framed would not necessarily focus the attention of the newspaper
establishments to any proposal except the one which was the subject-matter of that
question, viz., the proposal of the Press Commission in that behalf and the newspaper
establishments to whom the questionnaire was addressed would certainly not have
before them any indication at all as to what was the wage structure which was going to
be adopted by the Wage Board. Even though the Wage Board came to the conclusion,
as a result of its having collected the requisite data and gathered sufficient materials,
after receiving the answers to the questionnaire and examining the witnesses, that
certain wage structure was a proper one in its opinion, it was necessary for the Wage
Board to communicate the proposals in that regard to the various newspaper
establishments concerned and invite them to make their representations, if any, within
a specified period. It was only after such representations were received from the
interested parties that the Wage Board should have finalized its proposals and
published its decision. If this procedure had been adopted the decision of the Wage
Board could not have been challenged on the score of its being contrary to the
principles of natural justice.
235. It would have been no doubt more prudent for the Wage Board to have followed
the procedure outlined above. The ground No. 8 is, in our opinion, sufficiently
determinative of the question as to the ultra vires character of the Wage Board
decision and in view of the conclusion reached by us in regard to the same, we refrain
from expressing any opinion on this ground of attack urged by the Petitioners.
236. Re. 4. This ground is urged because no reasons were given by the Wage Board for
its decision. As a matter of fact, the Wage Board at its meeting dated April 22, 1957,
agreed that reasons need not be given for each of the decisions and it was only
sufficient to record the same and accordingly it did not give any reasons for the

decision which it published. In the absence of any such reasons, however, it was
difficult to divine what considerations, if any, prevailed with the Wage Board in arriving
at its decision on the various points involved therein. It was no doubt not incumbent
on the Wage Board to give any reasons for its decision. The Act made no provision in
this behalf and the Board was perfectly within its rights if it chose not to give any
reasons for its decision. Prudence should, however, have dictated that it gave reasons
for the decision which it ultimately reached because if it had done so, we would have
been spared the necessity of trying to probe into its mind and find out whether any
particular circumstance received due consideration at its hands in arriving at its
decision. The fact that no reasons are thus given, however, would not vitiate the
decision in any manner and we may at once say that even though no reasons are
given in the form of a regular judgment, we have sufficient indication of the
Chairman's mind in the note which he made on April 30, 1956, which is a
contemporaneous record explaining the reasons for the decision of the majority. This
note of the chairman is very revealing and throws considerable light on the question
whether particular circumstances were at all taken into consideration by the Wage
Board before it arrived at its decision.
237. Re. 5. This ground concerns the classification of newspaper establishments on the
basis of gross revenue. Such classification was challenged as illegal and unauthorised
by the Act. The Act certainly says nothing about classification and could not be
expected to do so. What the Act authorised it to do was to fix the rates of wages for
working journalists having regard to the principles laid down in s. 9(1) of the Act. In
fixing the wage structure the Wage Board constituted under the Act was perfectly at
liberty if it thought necessary to classify the newspaper establishments in any manner
it thought proper provided of course that such classification was not irrational. If the
newspaper establishments all over the country had got to be considered in regard to
fixing of rates of wages of working journalists employed therein it was inevitable that
some sort of classification should be made having regard to the size and capacity of
newspaper establishments. Various criteria could be adopted for the purpose of such
classification, viz., circulation of the newspaper, advertisement revenue, gross revenue,
capital invested in the business, etc., etc. Even though the proportion of advertisement
revenue to the gross revenue of newspaper establishments may be a relevant
consideration for the purpose of classification, we are not, prepared to say that the
Wage Board was not justified in adopting this mode of classification on the basis of
gross revenue. It was perfectly within its competence to do so and if it adopted that as
the proper basis for classification it cannot be said that the basis which it adopted was
radically wrong or was such as to vitiate its decision. If the need for classification is
accepted, as it should be, having regard to the various sizes and capacities of
newspaper establishments all over the country it was certainly necessary to adopt a
workable test for such classification and if the Wage Board had adopted classification
on the basis of the gross revenue, we do not see any reason why that decision of its
was in any manner whatever unwarranted.
238. It may be remembered in this connection that the newspaper Industry Inquiry
Committee in U.P. had suggested in its report dated March 31, 1949, classification of
newspapers in the manner following :"A" Class - Papers with

(1) a circulation of 10,000 copies or above or (2) an invested capital of

rupees 3 lacks or more or (3) an annual income of rupees 3 lacks or
more;
"B" Class - Papers with
(1) a circulation below 10,000 but above 5,000 copies or (2) an invested
capital between rupees one lakh and 3 lacks or (3) an annual income
between rupees one lakh and 3 lakhs;
"C" Class - Papers with
(1) a circulation below 5000 copies or (2) an invested capital below rupees one
lakh or (3) an annual income below rupees one lakh.
239. The classification on the basis of gross revenue was attacked by the petitioners
on the ground that in the gross revenue which is earned by the newspaper
establishments, advertisement revenue ordinarily forms a large bulk of such revenue
and the revenue earned by circulation of newspapers forms more often than not a
small part of the same, though in regard to language newspapers the position may be
somewhat different. Unless, therefore, the proportion of advertisement revenue in the
gross revenue of newspaper establishments were taken into consideration, it would not
be possible to form a correct estimate of the financial status of that newspaper
establishment with a view to its classification. The petitioners on the other hand
suggested that the profit and loss of the newspaper establishments should be adopted
as the proper test and if that were adopted a different picture altogether would be
drawn. The balance-sheets and the profit and loss accounts of the several newspaper
establishments would require to be considered and it was contended that even if the
gross revenue of a particular newspaper establishment were so large as to justify its
inclusion on the basis of gross revenue in Class "A" or Class "B" it might be working at
a loss and its classification as such would not be justified.
240. We have already referred in the earlier part of this judgment to the unsatisfactory
nature of the profit and loss test. Even though the profit and loss accounts and the
balance-sheets of the several limited companies may have been audited by their
auditors and may also have been accepted by the Income-tax authorities, they would
not afford a satisfactory basis for classification of these newspaper establishments for
the reasons already set out above.
241. As a matter of fact, even before us attempts were made by the respondent, the
Indian Federation of Working Journalists to demonstrate that the profit and loss
accounts and the balance-sheets of several petitioners were manipulated and
unreliable. We are not called upon to decide whether the profit and loss test is one
which should be accepted; it is sufficient for our purpose to say that if such a test was
not accepted by the Wage Board, the Wage Board was certainly far from wrong in
doing so.
242. Re. 6. This ground relates to grouping into chains or multiple units and the
ground of attack is that such grouping is unauthorised by the Act.
243. The short answer to this contention is that if such grouping into chains or multiple
units was justified having regard to the conditions of the newspaper industry in the

country, there was nothing in the Act which militated against such grouping. The Wage
Board was authorised to fix the wage structure for working journalists who were
employed in various newspaper establishments all over the country. If the chains or
multiple units existed in the country the newspaper establishments which formed such
chains or multiple units were well within the purview of the inquiry before the Wage
Board and if the Wage Board thus chose to group them together in that manner such
grouping by itself could not be open to attack. The Act could not have expressly
authorized the Wage Board to adopt such grouping. It was up to the Wage Board to
consider whether such grouping was justified under the circumstances or not and
unless we find something in the Act which prohibits the Wage Board from doing so, we
would not deem any such grouping as unauthorised. The real difficulty, however, in the
matter of grouping into chains or multiple units arises in connection with the capacity
of the industry to pay, a topic which we shall discuss hereafter while discussing the
ground in connection therewith.
244. Re. 7. This ground is based on the definition of "newspaper establishment" found
in Section 2(d) of the Act. "Newspaper establishment" is there defined as "an
establishment under the control of any person or body of persons, whether
incorporated or not, for the production or publication of one or more newspapers or for
conducting any news agency or syndicate." So, the contention put forward is that "an
establishment" can only mean "an establishment" and not a group of them, even
though such an individual establishment may produce or publish one or more
newspapers. The definition may comprise within its scope chains or multiple units, but
even so, the establishment should be one individual establishment producing or
publishing a chain of newspapers or multiple units of newspapers. If such chains or
multiple units were, though belonging to some person or body of persons whether
incorporated or not, produced or published by separate newspaper establishments,
common control would not render the constitution of several newspaper
establishments as one establishment for the purpose of this definition, they would
none the less be separate newspaper establishments though under common control.
245. Reliance was placed in support of this contention on a decision of the Calcutta
High Court in Pravat Kumar v. W. T. C. Parker MANU/WB/0035/1950 :
AIR1950Cal116 , where the expression which came up for construction before the
Court was "employed in an industrial establishment" and it was observed that :"Employed in an industrial establishment "must mean employed in some
particular place, that place being the place used for manufacture or an activity
amounting to industry, as that term is used in the Act."
246. A similar interpretation was put on the expression "industrial establishment" by
the Madras High Court in S.R.V. Service Ltd. v. State of Madras A.I.R. 1956 Mad. 115,
where it was observed at p. 12 :"They referred only to a dispute between the workers and the management of
one industrial establishment, the Kumbakonam branch of the S.R.V.S. Ltd. I find
it a little difficult to accept the contention of the learned counsel for the Madras
Union, that the Kumbakonam branch of the S.R.V.S. Ltd., is not an industrial
establishment as that expression has been used in the several sections of the
Act................. I need refer only to section 3 of the Act to negative the
contention of the learned counsel for the Madras Union, the S.R.V.S. Ltd., with
all its branches should be taken as one industrial establishment."

247. These decisions lend support to the contention that a newspaper establishment
like an industrial establishment should be located in one place, even though it may be
carrying on its activities of production or publication of more newspapers than one. If
these activities are carried on in different places, e.g., in different towns or cities of
different States, the newspaper establishments producing or publishing such
newspapers cannot be treated as one individual establishment but should be treated as
separate newspaper establishments for the purpose of working out the relations
between themselves and their employees. There would be no justification for including
these different newspaper establishments into one chain or multiple unit and treating
them, as if they were one newspaper establishment. Here again, the petitioners are
faced with this difficulty that there is nothing in the Act to prohibit such a grouping. If
a classification on the basis of gross revenue could be legitimately adopted by the
Wage Board then the grouping into chains or multiple units could also be made by it.
There is nothing in the Act to prohibit the treating of several newspaper establishments
producing or publishing one or more newspapers though in different parts of the
country as one newspaper establishment for the purpose of fixing the rates of wages.
It would not be illegitimate to expect the same standard of employment and conditions
of service in several newspaper establishments under the control of any person or
body of persons, whether incorporated or not; for an employer to think of employing
one set of persons on higher scales of wages and another set of workers on lower
scales of wages would by itself be inequitous, though it would be quite legitimate to
expect the difference in scales having regard to the quality of the work required to be
done, the conditions of labour in different regions of the country, the standard of living
in those regions and other cognate factors.
248. All these considerations would necessarily have to be borne in mind by the Wage
Board in arriving at its decision in regard to the wage structure though the relative
importance to be attached to one circumstance or the other may vary in accordance
with the conditions in different areas or regions where the newspaper establishments
are located.
249. Re. 8. We now come to the most important ground, viz., that the decision of the
Wage Board has not taken into consideration the capacity to pay of any particular
newspaper establishment. As we have already seen, the fixing of rates of wages by the
Wage Board did not prescribe whether the wages which were to be fixed were
minimum wages, fair wages, or living wages and it was left to the discretion of the
Wage Board to determine the same. The principles for its guidance were, however, laid
down and they prescribed the circumstances which were to be taken into consideration
before such determination was made by the Wage Board. One of the essential
considerations was the capacity of the industry to pay and that was comprised within
the category "the circumstances relating to newspaper industry in different regions of
the country". It remains to consider, however, whether the Wage Board really
understood this category in that sense and in fact applied its mind to it. At its
preliminary meeting held on May 26, 1956, the Board set up a Sub-committee to draft
a questionnaire to be issued to the various journals and organisations concerned, with
a view to eliciting factual data and other relevant information required for the fixation
of wages. The Sub-committee was requested to bear in mind the need inter alia for
proper classification of the country into different areas on the basis of certain criteria
like population, cost of living, etc. This was the only reference to this requirement of
s. 9(1) and there was no reference herein to the capacity of the industry to pay which
we have held was comprised therein. The only question in the questionnaire as finally
framed which had any reference to this criterion was Question No. 7 in Part "A" under

the heading "Special circumstances" and that question was : "Are there in your regions
any special conditions in respect of the newspaper industry which affect the fixing of
rates of wages of working journalists ? If so, specify the conditions and indicate how
they affect the question of wages." But here also it is difficult to find that the capacity
of the industry to pay was really sought to be included in these special conditions. The
Wage Board no doubt asked for detailed accounts of newspaper establishments and
also required information which would help it in the proper evaluation of the nature
and quality of work of various categories of working journalists, but the capacity of the
industry to pay which was one of the essential considerations was nowhere
prominently brought in issue and information on that point was sought from the
various newspaper establishments to whom the questionnaire was going to be
addressed. The answers to Question No. 7 as summarized by the Wage Board no doubt
referred in some cases to the capacity of the industry to pay but that was brought in
by the newspaper establishments themselves who answered the question in an
incidental manner and could not be said to be prominent in the minds of the parties
concerned.
250. It is pertinent to observe that even before the Press Commission the figures had
disclosed that out of 127 newspapers 68 had been running into loss and 59 with profits
and there was an overall profit of about 1% on a capital investment of seven crores.
The profit and loss accounts and the balance sheets of the various companies owning
or controlling newspaper establishments were also submitted before the Wage Board
but they had so far as they went a very sorry tale to tell. The profit and loss
statements for the year 1954-55 revealed that while 43 of them showed profits 40 had
incurred losses. Though no scientific conclusion could be drawn from this statement it
showed beyond doubt that the condition of the newspaper industry as a whole could
not be considered satisfactory. Under these circumstances, it was all the more
incumbent upon the Wage Board even though it discounted these profit and loss
statements as not necessarily reflecting the true financial position of these newspaper
establishments, to consider the question of the capacity of the industry to pay with
greater vigilance.
251. There was again another difficulty which faced the Wage Board in that behalf and
it was that out of 5,705 newspapers to whom the questionnaire was addressed only
312 or at best 325 had responded and the Wage Board was in the dark as to what was
the position in regard to other newspaper establishments. As a matter of fact, the
chairman in his note dated April 30, 1957, himself pointed out that the Wage Board
had no data before it of all the newspapers and where it had, that was in many cases
not satisfactory. This aspect was again emphasised by him in his note when he
reiterated that the data available to the Wage Board had not been as complete as it
would have wished them to be and therefore recommended in the end the
establishment of a standing administrative machinery which would collect from all
newspaper establishments in the country on a systematic basis detailed information
and data such as those on employment, wage rates and earnings, financial condition of
papers, figures of circulation, etc., which may be required for the assessment of the
effects of the decision of the Wage Board at the time of the review. The Wage Board, in
fact, groped in the dark in the absence of sufficient data and information which would
enable it to come to a proper conclusion in regard to the wage structure which it was
to determine. In the absence of such data and materials the Board was not in a
position to work out what would be the impact of its proposals on the capacity of the
industry to pay as a whole or even region-wise and the chairman in his note stated
that it was difficult for the Board at that stage to work out with any degree of

precision, the economic and other effects of its decision on the newspaper industry as
a whole. Even with regard to the impact of these proposals on individual newspaper
establishments the chairman stated that the future of the Indian language newspapers
was bright, having regard to increasing literacy and the growth of political
consciousness of the reading public, and by rational management there was great
scope for increasing the income of newspapers and even though there was no
possibility of any adjustment which might satisfy all persons interested, it was hoped
that no newspaper would be forced to close down as a result of its decision; but that if
there was a good paper and it deserved to exist, the Government and the public would
help it to continue. This was again a note of optimism which does not appear to have
been justified by any evidence on the record.
252. Even though, the Wage Board classified the newspaper establishments into 5
classes from "A" to "E" on the basis of their gross revenue the proportion of the
advertisement revenue to the gross revenue does not appear to have been taken into
consideration nor was the essential difference which subsisted between the circulation
and the paying capacity of the language newspapers as compared with newspapers in
the English language taken into account. If this had been done, the basis of gross
revenue which the Wage Board adopted would have been modified in several respects.
253. The grouping of the newspapers into chains or multiple units implied that the
weaker units in those groups were to be treated as on a par with the stronger units
and it was stated that the loss in the weaker units would be more than compensated
by the profits in the more prosperous units. The impact of these proposals on groups
of newspapers was only defended on principle without taking into consideration the
result which they would have on the working of the weaker units. Here also the
chairman expressed the opinion that the Board was conscious that as a result of its
decision, some of the journalists in the weaker units of the same group or chain may
get much more than those working in its highest income units. He however stated that
if the principle was good and scientific, the inevitable result of its application should be
judged from the stand-point of Indian Journalism as a whole and not the burden in
casts on a particular establishment. It is clear therefore, that this principle which found
favour with the Wage Board was sought to be worked out without taking into
consideration the burden which it would impose upon the weaker units of a particular
newspaper establishment.
254. The representatives of the employers objected to the fixation of scales of wages
on the plea that fixation of rates of wages did not include the fixation of scales of
wages. This contention was negatived by the representatives of the employees as also
by the Chairman and the Wage Board by its majority decision accepted the position
that it could, while fixing the rates of wages also fix the scales of wages. The Press
Commission itself had merely suggested a basic minimum wage for the consideration
of the parties concerned but had suggested that so far as the scales of wages were
concerned they were to be settled by collective bargaining or by adjudication. Even
though the Wage Board took upon itself the burden of fixing scales of wages as really
comprised within the terms of their reference, it was incumbent upon it to consider
what the impact of the scales of wages fixed by it would be on the capacity of the
industry to pay. There is nothing on the record to suggest that both as regards the
rates of wages and the scales of wages which it determined the Wage Board ever took
into account as to what the impact of its decision would be on the capacity of the
industry to pay either as a whole or region-wise.

255. There is, however, a further difficulty in upholding the decision of the Wage Board
in this behalf and it is this that even as regards the fixation of the rates of wages of
working journalists the Wage Board does not seem to have taken into account the
other provisions of the Act which conferred upon the working journalists the benefits of
retrenchment compensation, payment of gratuity, hours of work and leave. These
provisions were bound to have their impact on the paying capacity of the newspaper
establishments and if these had been borne in mind by the Wage Board it is highly
likely that the rates of wages including the scales of wages as finally determined might
have been on a lesser scale than what one finds in its decision.
256. This difficulty becomes all the more formidable when one considers that the
working journalists only constituted at best one-fifth of the total staff employed in the
various establishments. The rest of the 80% comprised persons who may otherwise be
described as factory workers who would be able to ameliorate their conditions of
service by having resort to the machinery under the Industrial Disputes Act. If the
conditions of service of the working journalists were to be improved by the Wage
Board the other employees of newspaper establishments were bound to be restive and
they would certainly, at the very earliest opportunity raise industrial disputes with a
view to the betterment of their conditions of service. Even though the Industrial Courts
established under the Industrial Disputes Act, 1947, might not give them relief
commensurate with the relief which the Wage Board gave to the working journalists,
there was bound to be an improvement in their conditions of service which the
Industrial Court would certainly determine having regard to the benefits which the
working journalists enjoyed and this would indeed impose an additional financial
burden on the newspaper establishments which would substantially affect their
capacity to pay. This consideration also was necessarily to be borne in mind by the
Wage Board in arriving at its final decision and one does not find anything on the
record which shows that it was actually taken into consideration by the Wage Board.
257. The retrospective operation of the decision of the Wage Board was also calculated
to impose a financial burden on the newspaper establishments. Even though this may
be a minor consideration as compared with the other considerations above referred to,
it was none the less a circumstance which the Wage Board ought to have considered in
arriving at its decision in regard to the fixing of rates of wages.
258. The financial burden which was imposed by the decision of the Wage Board was
very vividly depicted in the statements furnished to us on behalf of the petitioners in
the course of the hearing before us. These statements showed that the wage bill of
these newspaper establishments was going to be considerably increased, that the
retrospective operation of the decision was going to knock off a considerable sum from
their reserves and that the burden imposed upon the newspaper establishments by the
joint impact of the provisions of the Act in regard to retrenchment compensation,
payment of gratuity, hours of work and leave as well as the decision of the Wage Board
in regard to the fixing of rates of wages and the scales of wages would be such a could
principle the resources of the newspaper establishments, if not necessarily lead to their
complete extinction. The statements also showed what extra burden was imposed
upon the newspaper establishments, if they wanted to discharge the working
journalists from their employ which burden was all the grater, if per chance, the
newspaper establishments, even though reluctantly came to a decision that it was
worth their while to close down their business rather than continue the same with all
these financial burdens imposed upon them.

259. These figures have been given by us in the earlier part of our judgment and we
need not repeat the same. The conclusion, however, is inescapable that the decision of
the Wage Board imposed a very heavy financial burden on the newspaper
establishments, which burden was augmented by the classification on the basis of
gross-revenue, fixation of scales of wages, provisions as regards the hours of work and
leave, grouping of newspapers into chains or multiple units and retrospective operation
given to the decision of the Wage Board as therein mentioned.
260. If these proposals had been circulated, before being finalized, by the Wage Board
to the various newspaper establishments so that these newspaper establishments
could, if they so desired, submit their opinions thereupon and their representations, if
any, in regard to the same to the Wage Board for its consideration and if the Wage
Board had after receiving such opinions and representations from the newspaper
establishments concerned finalised it decision, this attack on the ground of the Wage
Board not having taken into consideration the capacity of the industry to pay as a
whole or region-wise would have lost much of its force. The Wage Board, however, did
nothing of the type. Proposals were exchanged between the representatives of the
employers and the representatives of the employees. The discussion that the chairman
had with each set of representatives did not bear any fruit and the chairman himself by
way of mediation, as it were, submitted to them his own proposals presumably having
regard to the different points of view which had been expressed by both these parties.
The decision in regard to the scales of wages, was, as we have seen before, a majority
decision which was not endorsed by the representatives of the employers. The
proposals of the chairman also were not acceptable to the representatives of the
employers but the representatives of the employees accepted them and they thus
became the majority decision of the Wage Board. The ultimate decision of the
chairman on those points does not appear to have been the result of any consideration
of the capacity of the industry to pay as a whole or region-wise but reflects a
compromise which he brought about between the diverse views but which also was
generally accepted only by the representatives of the employees and not the
representatives of the employers. Nowhere can we find in the instant case any genuine
consideration of the capacity of the industry to pay either as a whole or region-wise.
We are supported in this conclusion by the observations of the chairman himself in the
note which he made simultaneously with the publication of the decision on April 30,
1957, that it was difficult for the Wage Board at that stage to work out with any
degree of precision, the economic and other effects of the decision on the newspaper
industry as a whole.
261. An attempt was made on behalf of the respondents in the course of the hearing
before us to shew that by the conversion of the currency into naye pyse and the
newspapers chargeing to the public higher price by reason of such conversion, the
income of several newspapers had appreciably increased. These figures were, however,
controverted on behalf of the petitioners and it was pointed out that whatever increase
in the revenue was brought about by reason of this conversion of price into naye pyse
was more than offset by the fall in circulation, ever rising price of newsprint and the
higher commission, etc., which was payable by the newspaper establishments to their
commission agents. The figure as worked out need not be described here in detail; but
we are satisfied that the conversion of the price into naye pyse had certainly not the
effect which was urged and did not add to the paying capacity of the newspaper
establishments.

262. The very fact that the Wage Board thought it necessary to express a pious hope
that if there is a good paper and it deserves to exist, the Government and the public
will help it to continue, and also desired the interests which it felt had been hit hard by
its decision not to pass judgment in haste, but to watch the effects of its decision in
actual working with patience for a period of 3 to 5 years, shows that the Wage Board
was not sure of its own ground and was publishing its decision merely by way of an
experiment. The chairman urged upon the Government of India the desirability of
creating immediately a standing administrative machinery which could also combine in
itself the functions of implementing and administering its decision and that of
preparing the ground for the review and revision envisaged after 3 to 5 years. This was
again a pious hope indulged in by the Wage Board. It was not incumbent on the
Government to fulfil that expectation and there was no knowing whether the
Government would ever review or revise the decision of the Wage Board at the
expiration of such period.
263. We have carefully examined all the proceedings of the Wage Board and the
different tables and statements prepared by them. Neither in the proceedings nor in
any of the tables do we see satisfactory evidence to show that the capacity of the
industry to pay was examined by the Board in fixing the wage structure. As we have
already observed, it was no doubt open to the Board not to attach undue importance
to the statements of profit and loss accounts submitted by various newspaper
establishments, but, since these statements prima facie show that the trade was not
making profit it was all the more necessary for the Board to satisfy itself that the
different classes of the newspaper establishments would be able to bear the burden
imposed by the wage structure which the Board had decided to fix. Industrial
adjudication is familiar with the method which is usually adopted to determine the
capacity of the employer to pay the burden sought to be imposed on him. If the
industry is divided into different classes it may not be necessary to consider the
capacity of each individual unit to pay but it would certainly be necessary to consider
the capacity of the respective classes to bear the burden imposed on them. A crosssection of these respective classes may have to be taken for careful examination and
all relevant factors may have to be borne in mind in deciding what burden the class
considered as a whole can bear. If possible, an attempt can also be made, and is often
made, to project the burden of the wage structure into two or three succeeding years
and determine how it affects the financial position of the employer. The whole of the
record before the Board including the chairman's note gives no indication at all that an
attempt was made by the Board to consider the capacity of the industry to pay in this
manner. Indeed, the proceedings show that the demand made by the representatives
of the employees and the concessions made by the employers' representatives were
taken as rival contentions and the Chairman did his best to arrive at his final decision
on the usual basis of give and take. In adopting this course, all the members of the
Board seem to have lost sight of the fact that the essential pre-requisite of deciding
the wage structure was to consider the capacity of the industry to pay and this, in our
opinion, introduces a fatal infirmity in the decision of the Board. If we had been
satisfied that the Board had considered this aspect of the matter, we would naturally
have been reluctant to accept any challenge to the validity of the decision on the
ground that the capacity to pay had not been properly considered. After all, in cases of
this kind where special Boards are set up to frame wage structures, this Court would
normally refuse to constitute itself into a court of appeal on questions of fact; but, in
the present case, an essential condition for the fixation of wage structure has been
completely ignored and so there is no escape from the conclusion that the Board has

contravened the mandatory requirement of s. 9 and in consequence its decision is ultra

vires the Act itself.
264. Re. 9. This ground, viz., that the Board had no authority to render a decision
which was retrospective in operation in also untenable. The Wage Board certainly had
the jurisdiction and authority to pronounce a decision which could be retrospective in
effect from the date of its appointment and there was no legal flaw in the Wage Board
prescribing that its decision should be retrospective in operation in the manner
indicated by it. The retrospectivity may have its repercussions on the capacity of the
industry to pay and we need not say anything more in regard to the same. We have
already dealt with it above.
265. Re. 10. Ground No. 10 talks of the authority of the Wage Board to fix scales of
pay for a period of 3 years, subject to review by the Government by appointing
another Wage Board at the end of that period. We are not concerned with such fixation
of the period for the simple reason that the Board has not in terms done so. The only
authority which it had was to fix the rates of wages and submit its decision in respect
thereof the Government. Any pious hope expressed that the decision should be subject
to review or revision by the Government by appointment of another Wage Board after
lapse of 3 or 5 years was not a part of its decision and we need not pause to consider
the effect of such fixation of the period, if any, because it has in fact not been done.
266. Re. 11. The last ground talks of the Wage Board being handicapped for want of
Cost of Living Index. This ground also cannot avail the petitioners for the simple
reason that the decision of the Wage Board itself referred in Clause 24 thereof to the
all India cost of living index number published by the Labour Bureau of the
Government of India O Base 1944 : 100 and fixed the dearness allowance in relation
to the same. These statistics were available to the Wage Board and it cannot be said
that the Wage Board was in any manner whatever handicapped in that respect.
267. On a consideration of all the grounds of attack thus leveled against the validity
and the binding nature of the decision of the Wage Board, we have, therefore, come to
the conclusion that the said decision cannot be sustained and must be set aside.
268. The petitions will, therefore, be allowed and the petitioners will be entitled to an
order declaring that s. 5(1)(a)(iii) of the Working Journalists (Conditions of Service)
and Miscellaneous Provisions Act, 1955, is ultra vires the Constitution of India and that
the decision of the Wage Board dated April 30, 1957, is illegal and void.
269. As regards the costs, in view of the fact that the petitioners have failed in most of
their contentions in regard to the constitutionality of the Act, the fairest order would be
that each party should bear and pay its own costs of these petitions.
civil Appeals Nos. 699-703 of 1957.
270. These civil Appeals are directed against the decision of the Wage Board and seek
to set aside the same as destroying the very existence of the newspaper
establishments concerned and infringing their fundamental rights. Special leave under
Art. 136 of the Constitution was granted by this Court in respect of each of them,
subject to the question of maintainability of the appeals being open to be urged.

271. These appeals are also covered by the judgment just delivered by us in Petition
No. 91 of 1957 & Ors., and the appellants would be entitled to a declaration in each
one of them that the decision of the Wage Board ins ultra vires the Working Journalists
(Conditions of Service) and Miscellaneous Provisions Act, 1955, and therefore void and
inoperative.
272. In view of the conclusion thus reached, we feel it unnecessary to consider
whether the appeals would be maintainable under Art. 136 of the Constitution. The
appellants having substantially succeeded in their respective petitions under Art. 32 of
the Constitution, the question has now become purely academic and we need not
spend any time over the same.
273. The result therefore is that there will be no orders save that all the parties
thereto shall bear and pay their own costs thereof.

Equivalent Citation: AIR1965SC881, 1965(67)BLJR506, 1965CriLJ8, 1966MhLJ257,

1966MPLJ273, [1965]1SCR65
IN THE SUPREME COURT OF INDIA
Decided On: 19.08.1964
Appellants:Ranjit D. Udeshi
Vs.
Respondent:State of Maharashtra
Hon'ble
P.B.
Gajendragadkar,
C.J., K.N.
Ayyangar and J.C. Shah, JJ.
Subject: Media and Communication
Subject: Criminal
Catch Words
Mentioned IN

Wanchoo, M.

Judges/Coram:
Hidayatullah, N.
Rajagopala

Relevant
Indian Penal Code, 1860 - Section 292

Section:

Acts/Rules/Orders:
Constitution of India - Article 19(1)(A), Constitution of India - Article 19(2); Indian
Penal Code 1860, (IPC) - Section 292
Citing

Reference:

Mentioned
6

Case
Notes:
The case questioned whether Section 292 of the Indian Penal Code, 1806 was
ultra vires - In the particular instance, the appellant, who had sold a copy of
the unexpurgated edition of Lady Chatterleys Lover was convicted under
Section 292 of the Indian Penal Code - It was held that Section 292 of the
Code embodied a reasonable restriction upon the freedom of speech and
expression guaranteed by Article 19 of the Constitution of India and did not
fall outside the limits of restriction permitted by Clause (2) of the Article 19
of the Constitution - Further, the Section sought no more than the promotion
of public decency and morality which were the words of that clause.

JUDGMENT
M. Hidayatullah J.
1. The appellant is one of four partners of a firm which owns a book-stall in Bombay.
He was prosecuted along with the other partners under s. 292, Indian Penal Code. All
the facts necessary for out purpose appear from the simple charge with two counts
which was framed against them. It reads :
"That you caused Nos. 1, 2, 3, 4 on or about the 12th day of December, 1959 at
Bombay being the partners of a book-stall named Happy Book Stall were found
in possession for the purpose of sale copies of an obscene book called Lady
Chatterley's Lover (unexpurgated edition) which inter alia contained, obscene
matter as detailed separately and attached herewith and thereby committed an
offence punishable u/s 292 of the I.P. Code;
AND
That you Gokuldas Shamji on or about the 12th day of December 1959 at
Bombay did sell to Bogus Customer Ali Raza Sayeed Hasan a copy of an
obscene book called Lady Chatterley's Lover (unexpurgated edition) which inter

alia contained obscene matter as detailed separately and attached herewith and
thereby committed an offence punishable u/s 292 of the I.P. Code."
2. The first count applied to the appellant who was accused No. 2 in the case. The
Additional Chief Presidency Magistrate, III Court, Esplanade, Bombay, convicted all the
partners on the first count and fined each of them Rs. 20 with one week's simple
imprisonment in default. Gokuldas Shamji was additionally convicted on the second
count and was sentenced to a further fine of Rs. 20 or like imprisonment in default.
The Magistrate held that the offending book was obscene for purposes of the section.
The present appellant filed a revision in the High Court of Bombay. The decision of the
High Court was against him. He has now appealed to this Court by special leave and
has raised the issue of freedom of speech and expression guarantied by the nineteenth
Article. Before the High Court he had questioned the finding of the Magistrate
regarding the novel.
3. It is convenient to set out s. 292 of the Indian Penal Code at this stage :
"292. Sale of obscene books etc. : whoever (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts
into circulation, or for purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has in his possession any
obscene book, pamphlet, paper, drawing, painting, representation or
figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the
purposes aforesaid, or knowing or having reason to believe that such
object will be sold, let to hire, distributed or publicly exhibited or in any
manner put into circulation, or
(c) takes part in or receives profits from any business in the course of
which he knows or has reason to believe that any such obscene objects
are, for any of the purposes aforesaid, made, produced, purchased, kept,
imported, exported, conveyed, publicly exhibited or in any manner put
into circulation, or
(d) advertises or makes known by any means whatsoever that any
person is engaged or is ready to engage in any act which is an offence
under this section, or that any such obscene object can be procured from
or through any person, or
(e) offers or attempts to do any act which is an offence under this
section,
shall be punished with imprisonment for either description for a term which may
extend to three months, or with fine, or with both.
Exception. - This section does not extend to any book, pamphlet, writing,
drawing or painting kept or used bona fide for religious purposes or any
representation sculptured, engraved, painted or otherwise represented on or in
any temple, or on any car used for the conveyance of idols, or kept or used for
any religious purpose."

4. To prove the requirements of the section the prosecution examined two witnesses.
One was the test purchaser named in the charge and the other an Inspector of the
Vigilance Department. these witnesses proved possession and sale of the book which
facts are not denied. The Inspector in his testimony also offered his reasons for
considering the book to be obscene. On behalf of the accused Mr. Mulkraj Anand, a
writer and art critic gave evidence and in a detailed analysis of the novel, he sought to
establish that in spite of its apparent indicate theme and the candidness of its
delineation and diction, the novel was a work of considerable literary merit and a
classic and not obscene. The question does not altogether depend on oral evidence
because the offending novel and the portions which are the subject of the charge must
be judged by the court in the light of s. 292, India Penal Code, and the provisions of
the Constitution. This raises two broad and independent issues of law - the validity of
s. 292, Indian Penal code, and the proper interpretation of the section and its
application to the offending novel.
5. Mr. Garg who argued the case with ability, raised these two issues. He bases his
argument on three legal grounds which briefly are :
(i) that s. 292 of the Indian Penal code is void as being an impermissible and
vague restriction on the freedom of speech and expression guaranteed by
Art. 19(1)(a) and is not saved by clause (2) of the same article;
(ii) that even if s. 292, Indian Penal Code, be valid, the book is not obscene if
the section is properly construed and the book as a whole is considered; and
(iii) that the possession or sale to be punishable under the section must be with
the intention to corrupt the public in general and the purchasers in particular.
6. On the subject of obscenity his general submission is that a work of art is not
necessarily obscene if it treats with sex even with nudity and he submits that a work of
art or a book of literary merit should not be destroyed if the interest of society requires
that it be preserved. He submits that it should be viewed as a whole, and its artistic or
literary merits should be weighed against the so-called obscenity, the context in which
the obscenity occurs and the purpose it seeks or serve. If on a fair consideration of
these opposite aspects, he submits, the interest of society prevails, than the work of
art or the book must be preserved, for then the obscenity is overborne. In no case, he
submits, can stray passage or passages serve to stamp an adverse verdict on the
book. He submits that the standard should not be that of an immature teenager or a
person who is abnormal but of one who is normal, that is to say, with a mens sana in
corporis sana. He also contends that the test adopted in the High Court and the Court
below from Queen v. Hicklin (1868) L.R. 3 Q.B. 360 is out of date and needs to be
modified and he commends for our acceptance the views expressed recently by the
courts in England and the United States.
7. Article 19 of the Constitution which is the main plank to support these arguments
reads :
"19(1) All citizens shall have the right (a) to freedom of speech and expression;
.......

.......
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the
said sub-clause in the interests of . . . public order, decency or morality . . . ."
8. No doubt this article guarantees complete freedom of speech and expression but it
also makes an exception in favour of existing laws which impose restrictions on the
exercise of the right in the interests of public decency or morality. The section of the
Penal Code in dispute was introduced by the Obscene Publications Act (7 of 1925) to
give effect to Article I of the International Convention for the suppression of or traffic
in obscene publications signed by India in 1923 at Geneva. It does not go beyond
obscenity which falls directly within the words "public decency and morality" of the
second clause of the article. The word, as the dictionaries tell us, denotes the quality of
being obscene which means offensive to modesty or decency; lewd, filthy and
repulsive. It cannot be denied that it is an important interest of society to suppress
obscenity. There is, of course, some difference between obscenity and pornography in
that the latter denotes writings, pictures etc. intended to arouse sexual desire while
the former may include writings etc. not intended to do so but which have that
tendency. Both, of course, offend against public decency and morals but pornography
is obscenity in a more aggravated form. Mr. Garg seeks to limit action to cases of
intentional lewdness which he describes as "dirt for dirt's sake" and which has now
received the appellation of hard-core pornography by which term is meant libidinous
writings of high erotic effect unredeemed by anything literary or artistic and intended
to arouse sexual feelings.
9. Speaking in terms of the Constitution it can hardly be claimed that obscenity which
is offensive to modesty or decency is within the constitutional protection given to free
speech or expression, because the article dealing with the right itself excludes it. That
cherished right on which our democracy rests is meant for the expression of free
opinions to change political or social conditions or for the advancement of human
knowledge. This freedom is subject to reasonable restrictions which may be thought
necessary in the interest of the general public and one such is the interest of public
decency and morality. Section 292, Indian Penal Code, manifestly embodies such a
restriction because the law against obscenity, of course, correctly understood and
applied, seeks no more than to promote public decency and morality. The word
obscenity is really not vague because it is a word which is well-understood even if
persons differ in their attitude to what is obscene and what is not. Lawrence thought
James Joyce's Ulysses to be an obscene book deserving suppression but it was
legalised and he considered Jane Eyre to be pornographic but very few people will
agree with him. The former he thought so because it dealt with excretory functions
and the latter because it dealt with sex repression. (See Sex, Literature and
Censorship pp. 26, 201). Condemnation of obscenity depends as much upon the mores
of the people as upon the individual. It is always a question of degree or as the
lawyers are accustomed to say, of where the line is to be drawn. It is, however, clear
that obscenity by itself has extremely "poor value in the propagation of ideas, opinions
and informations of public interest or profit." When there is propagation of ideas,
opinions and informations of public interest or profit, the approach to the problem may
become different because then the interest of society may tilt the scale in favour of
free speech and expression. It is thus that books on medical science with intimate
illustrations and photographs, though in a sense immodest, are not considered to be

obscene but the same illustrations and photographs collected in book form without the
medical text would certainly be considered to be obscene. Section292, Indian Penal
Code deals with obscenity in this sense and cannot thus be said to be invalid in view of
the second clause of Art. 19. The next question is when can an object be said to be
obscene ?
10. Before dealing with that problem we wish to dispose of Mr. Garg's third argument
that the prosecution must prove that the person who sells or keeps for sale any
obscene object knows that it is obscene, before he can be adjudged guilty. We do not
accept this argument. The first sub-section of s. 292 (unlike some others which open
with the words "whoever knowingly or negligently etc.") does not make knowledge of
obscenity an ingredient of the offence. The prosecution need not prove something
which the law does not burden it with. If knowledge were made a part of the guilty act
(acts reus), and the law required the prosecution to prove it, it would place an almost
impenetrable defence in the hands of offenders. Something much less than actual
knowledge must therefore suffice. It is argued that the number of books these days is
so large and their contents so varied that the question whether there is mens rea or
not must be based on definite knowledge of the existence of obscenity. We can only
interpret the law as we find it and if any exception is to be made it is for Parliament to
enact a law. As we have pointed out, the difficulty of obtaining legal evidence of the
offender's knowledge of the obscenity of the book etc., has made the liability strict.
Under our law absence of such knowledge, may be taken in mitigation but it does not
take the case out of the sub-section.
11. Next to consider is the second part of the guilty act (actus reus), namely, the
selling or keeping for sale of an object which is found to be obscene. Here, of course,
the ordinary guilty intention (mens rea) will be required before the offence can be said
to be complete. The offender must have actually sold or kept for sale, the offending
article. The circumstances of the case will then determine the criminal intent and it will
be a matter of a proper inference from them. The argument that the prosecution must
give positive evidence to establish a guilty intention involves a supposition that mens
rea must always be established by the prosecution through positive evidence. In
criminal prosecution mens rea must necessarily be proved by circumstantial evidence
alone unless the accused confesses. The sub-section makes sale and possession for
sale one of the elements of the offence. As sale has taken place and the appellant is a
book-seller the necessary inference is readily drawn at least in this case. Difficulties
may, however, arise in cases close to the border. To escape liability the appellant can
prove his lack of knowledge unless the circumstances are such that he must be held
guilty for the acts of another. The court will presume that he is guilty if the book is sold
on his behalf and is later found to be obscene unless he can establish that the sale was
without his knowledge or consent. The law against obscenity has always imposed a
strict responsibility. When Wilkes printed a dozen copies of his Essay on Woman for
private circulation, the printer took an extra copy for himself. That copy was purchased
from the printer and it brought Wilkes to grief before Lord Mansfield. The gist of the
offence was taken to be publication-circulation and Wilkes was presumed to have
circulated it. Of course, Wilkes published numerous other obscene and libellous
writings in different ways and when Madame Pampadour asked him : "How far does
the liberty of the Press extend in England ?" he gave the characteristic answer : "I do
not know. I am trying to find out !" (See 52 Harv. L. Rev. 40)
12. The problem of scienter (knowingly doing an act) has caused anxious thought in
the United States under the Comstock law 19 U.S.C. 1461 (1958) which deals with the

non- availability of obscene matter. We were cited Manual Enterprises Inc. v. J. Edward
Day 370 U.S. 478 : 8 L. ed. 2nd 639 but there was so little concurrence in the Court
that it has often been said, and perhaps rightly, that the case has little opinion value.
The same is perhaps true of the latest case Nico Jacobellis v. State of Ohio (decided on
June 22, 1964) of which a copy of the judgment was produced for our perusal.
13. It may, however, be pointed out that one may have to consider a plea that the
publication was for public good. This bears on the question whether the book etc. can
in those circumstances be regarded as obscene. It is necessary to bear in mind that
this may raise nice points of the claims of society to suppress obscenity and the claims
of society to allow free speech. No such plea has been raised in this case but we
mention it to draw attention to the fact that this may lead to different results in
different cases. When Savage published his Progress of a Divine, and was prosecuted
for it, his plea was that he had "introduced obscene ideas with a view to exposing
them to detestation, and of amending the age by showing the depravity of wickedness"
and the plea was accepted (See Dr. Johnson's Life of Savage in his Lives of the Poets).
In Hicklin's case (1868) L.R. 3 Q.B. 360 Blackburn J. did not accept a similar plea in
respect of the pamphlet before him observing that it would "justify the publication of
anything however indecent, however obscene, and however mischievous." We are not
called upon to decide this issue in this case but we have found it necessary to mention
it because ideas having social importance will prima facie be protected unless
obscenity is so gross and decided that the interest of the public dictates the other way.
We shall now consider what is meant by the word "obscene" in s. 292, Indian Penal
Code.
14. The Indian Penal Code borrowed the word from the English Statute. As the word
"obscene" has been interpreted by English Courts something may be said of that
interpretation first. The Common law offence of obscenity was established in England
three hundred years ago when Sir Charles Sedley exposed his person to the public
gaze on the balcony of a tavern. Obscenity in books, however, was punishable only
before the spiritual courts because it was so held down to 1708 in which year Queen v.
Read 11 Mod 205 Q.B. was decided, In 1727 in the case against one Curl it was ruled
for the first time that it was a Common Law offence 2 Stra. 789 K.B.. In 1857 Lord
Campbell enacted the first legislative measure against obscene books etc. and his
successor in the office of Chief Justice interpreted his statute (20 & 21 Vict. C. 83) in
Hicklin's case (1868) L.R. 3 Q.B. 360. The section of the English Act is long (they were
so in those days), but it used the word "obscene" provided for search, seizure and
destruction of obscene books etc. and made their sale, possession for sale, distribution
etc. a misdemeanour. The section may thus be regarded as substantially in pari
materia with s. 292, Indian Penal Code, in spite of some differences in language. In
Hicklin's case (1868) L.R. 3 Q.B. 360 the Queen's Bench was called upon to consider a
pamphlet, the nature of which can be gathered from the title and the colophon which
read; "The Confession Unmasked, showing the depravity of Romish priesthood, the
iniquity of the confessional, and the questions put to females in confession." It was
bilingual with Latin and English texts on opposite pages and the latter half of the
pamphlet according to the report was "grossly obscene, as relating to impure and filthy
acts, words or ideas". Cockburn, C.J. laid down the test of obscenity in these words :
". . . . . I think the test of obscenity is this, whether the tendency of the matter charged
as obscenity is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall . . . . it is quite

certain that it would suggest to the minds of the young of either sex, or even to persons
of more advanced years, thoughts of a most impure and libidinous character."
15. This test has been uniformly applied in India.
16. The important question is whether this test of obscenity squares with the freedom
of speech and expression guaranteed under our Constitution, or it needs to be
modified and, if so, in what respects. The first of these questions invites the Court to
reach a decision on a constitutional issue of a most far-reaching character and we
must beware that we may not lean too far away from the guaranteed freedom. The
laying down of the true test is not rendered any easier because art has such varied
facets and such individualistic appeals that in the same object the insensitive sees only
obscenity because his attention is arrested, not by the general or artistic appeal or
message which he cannot comprehend, but by what he can see, and the intellectual
sees beauty and art but nothing gross. The Indian Penal Code does not define the word
"obscene" and this delicate task of how to distinguish between that which is artistic
and that which is obscene has to be performed by courts, and in the last resort by us.
The test which we evolve must obviously be of a general character but it must admit of
a just application from case to case by indicating a line of demarcation not necessarily
sharp but sufficiently distinct to distinguish between that which is obscene and that
which is not. None has so far attempted a definition of obscenity because the meaning
can be laid bare without attempting a definition by describing what must be looked for.
It may, however, be said at once that treating with sex and nudity in art and literature
cannot be regarded as evidence of obscenity without something more. It is not
necessary that the angles and saints of Michaelangelo should be made to wear
breeches before they can be viewed. If the rigid test of treating with sex as the
minimum ingredient were accepted hardly any writer of fiction today would escape the
fate Lawrence had in his days. Half the book-shops would close and the other half
would deal in nothing but moral and religious books which Lord Campbell boasted was
the effect of his Act.
17. The question is now narrowed to what is obscenity as distinguished from a
permissible treating with sex ? Mr. Garg relies on some passages from the opinions
expressed in the Supreme Court of the United States in Samuel Roth v. U. S. A. (354
U.S. 476; 1 L ed. 2d. 1498 (1957)) and from the charge to the jury by Stable J. in
Regina v. Martin Secker and Warburg Ltd. [1954] 1 W.L.R. 738 and invites us to adopt
the test of "hard-core pornography" for the interpretation of the word "obscene" in the
Indian Penal Code. He points out that the latest statute in England now makes
exceptions leading to the same result. He has also referred to some books and literary
and artistic publications which have not been considered objectionable.
18. It may be admitted that the world has certainly moved far away from the times
when Pamela, Moll Flanders, Mrs. Warren's Profession, and even Mill on the Floss were
considered immodest. Today all these and authors from Aristophanes to Zola are
widely read and in most of them one hardly notices obscenity. If our attitude to art
versus obscenity had not undergone a radical change, books like Caldwell's God's Little
Acre and Andre Gide's If It Die would not have survived the strict test. The English
novel has come out of the drawing room and it is a far cry from the days when Thomas
Hardy described the seduction of Tess by speaking of her guardian angels. Thomas
Hardy himself put in his last two novels situations which "were strongly disapproved of
under the conventions of the age", but they were extremely mild compared with books
today. The world is now able to tolerate much more than formerly, having become

indurated by literature of different sorts. The attitude is not yet settled. Curiously,
varying results are noticeable in respect of the same book and in the United States the
same book is held to be obscene in one State but not in another [See A Suggested
Solution to the Riddle of Obscenity (1964), 112 Penn. L. Rev. 834.
19. But even if we agree thus far, the question remains still whether the Hicklin test is
to be discarded ? We do not think that it should be discarded. It makes the court the
judge of obscenity in relation to an impugned book etc. and lays emphasis on the
potentiality of the impugned object to deprave and corrupt by immoral influences. It
will always remain a question to decide in each case and it does not compel an adverse
decision in all cases. Mr. Garg, however, urges that the test must be modified in two
respects. He wants us to say that a book is not necessarily obscene because there is a
word here or a word there, or a passage here and a passage there which may be
offensive to particularly sensitive persons. He says that the overall effect of the book
should be the test and secondly, that the book should only be condemned if it has no
redeeming merit at all, for then it is "dirt for dirt's sake", or as Mr. Justice Frankfurter
put it in his inimitable way "dirt for money's sake." His contention is that judged of in
this light the impugned novel passes the Hicklin test if it is reasonably modified.
20. Mr. Garg is not right in saying that the Hicklin case (1868) L.R. 3 Q.B.
360 emphasised the importance of a few words or a stray passage. The words of the
Chief Justice were that "the matter charged" must have "a tendency to deprave and
corrupt". The observation does not suggest that even a stray word or an insignificant
passage would suffice. Any observation to that effect in the ruling must be read
secundum subjectam materiam, that is to say, applicable to the pamphlet there
considered. Nor is it necessary to compare one book with another to find the extent of
permissible action. It is useful to bear in mind the words of Lord Goddard, Chief Justice
in the Reiter case. (1954) 2 Q.B. 16
"The character of other books is a collateral issue, the exploration of which would be
endless and futile. If the books produced by the prosecution are indecent or obscene,
their quality in that respect cannot be made any better by examining other books ..."
21. The Court must, therefore, apply itself to consider each work at a time. This should
not, of course, be done in the spirit of the lady who charged Dr. Johnson with putting
improper words in his Dictionary and was rebuked by him : "Madam, you must have
been looking for them." To adopt such an attitude towards art and literature would
make the courts a board of censors. An overall view of the obscene matter in the
setting of the whole work would, of course, be necessary, but the obscene matter must
be considered by itself and separately to find out whether it is so gross and its
obscenity so decided that it is likely to deprave and corrupt those whose minds are
open to influences of this sort and into whose hands the book is likely to fall. In this
connection the interests of out contemporary society and particularly the influence of
the book etc. on it must not overlooked. A number of considerations may here enter
which it is not necessary to enumerate, but we must draw attention to one fact. Today
our national and regional languages are strengthening themselves by new literary
standards after a deadening period under the impact of English. Emulation by our
writers of an obscene book under the aegis of this Court's determination likely to
pervert our entire literature because obscenity pays and true art finds little popular
support. Only an obscurant will deny the need for such caution. This consideration
marches with all law and precedent on this subject and so considered we can only say
that where obscenity and art are mixed, art must so preponderate as to throw the

obscenity into a shadow or the obscenity so trivial and insignificant that it can have no
effect and may be overlooked. In other words, treating with sex in a manner offensive
to public decency and morality (and these are the words of our Fundamental Law),
judged of by our national standards and considered likely to pander to lascivious,
prurient or sexually precocious minds, must determine the result. We need not attempt
to bowdlerize all literature and thus rob speech and expression of freedom. A balance
should be maintained between freedom of speech and expression and public decency
and morality but when the letter is substantially transgressed the former must give
way.
22. We may now refer to Roth's case 354 U.S. 476 : 1 L. ed. 2d. 1498 (1957) to which
a reference has been made. Mr. Justice Brennan, who delivered the majority opinion in
that case observed that if obscenity is to be judged of by the effect of an isolated
passage or two upon particularly susceptible persons, it might well encompass material
legitimately treating with sex and might become unduly restrictive and so the
offending books must be considered in it entirety. Chief Justice Warren on the other
hand made "Substantial tendency to corrupt by arousing lustful desires" as the test.
Mr. Justice Harlan regarded as the test that must "tend to sexually impure thoughts".
In our opinion, the test to adopt in our country (regard being had to our community
mores) is that obscenity without a preponderating social purpose or profit cannot have
the constitutional protection of free speech and expression, and obscenity is treating
with sex in a manner appealing to the carnal sides of human nature, or having that
tendency. Such a treating with sex it offensive to modesty and decency but the extent
of such appeal in a particular book etc. are matters for consideration in each individual
case.
23. It now remains to consider the book Lady Chatterley's Lover. The story is simple. A
baronet, wounded in the war is paralysed from the waist downwards. He married
Constance (Lady Chatterley) a little before he joined up and they had a very brief
honeymoon. Sensing the sexual frustration of his wife and their failure to have an heir
he leaves his wife free to associate with other men. She first experiences with one
Michaelis and later with a game-keeper Mellors in charge of the grounds. The first
lover was selfish sexually, the other was something of an artist. He explains to
Constance the entire mystery of eroticism and they put it into practice. There are over
a dozen descriptions of their sexual intimacies. The game-keeper's speech and
vocabulary were not genteel. He knew no Latin which could be used to appease the
censors and the human pudenda and other erogenous parts are freely discussed by
him and also named by the author in the descriptions. The sexual congress each time
is described with great candidness and in prose as tense as it is intense and of which
Lawrence was always a consummate master. The rest of the story is a mundane one.
There is some criticism of the modern machine civilization and its enervating effects
and the production of sexually inefficient men and women and this, according to
Lawrence, is the cause of maladjustment of sexes and their unhappiness.
24. Lawrence had a dual purpose in writing the book. The first was to shock the
genteel society of the country of his birth which had hounded him and the second was
to portray his ideal of sexual relations which was never absent from any of his books.
His life was a long battle with censor-morons, as he called them. Even before he
became an author he was in clash with conventions. He had a very repressive mother
who could not reconcile herself to the thought that her son had written the White
Peacock. His sisters were extremely prim and correct. In his letters he said that he
would not like them to read Lady Chatterley's Lover. His school teacher would not let

him use the word 'stallion' in an essay and his first love Jessie could not read aloud
Ibsen as she considered him immodest. This was a bad beginning for a hyper-sensitive
man of "wild and untamed masculinity." Then came the publishers and last of all
censors. From 1910 the publishers asked him to prune and prune his writings and he
wrote and rewrote his novels to satisfy them. Aldous Huxley tells us that Lady
Chatterley's Lover was written three times [Essays (Dent)]. Aldington in his Portrait of
a Genius has seen in this a desire to avoid being pornographic but the fact is that
Lawrence hated to be bowdlerized. His first publisher Heinemann refused his Sons and
Lovers and he went over to Duckworths. They refused his Rainbow and he went to
Secker. They brought out his Lost girl and it won a prize but after the Rainbow he was
a banned author whose name could not be mentioned in genteel society. He became
bitter and decided to produce a "taboo-shattering bomb". At the same time he started
writing in defence of his fight for sexual liberation in English writing. This was
Lawrence's first reason for writing the book under out review.
25. Lawrence viewed sex with indifference and also with passion. He was indifferent to
it because he saw in it nothing to hide and he saw it with passion because to him it
was the only "motivating power of life" and the culmination of all human strength and
happiness. His thesis in his own words was - "I want men and women to be able to
think of sex fully, completely, honestly and cleanly" and not to make of it "a dirty little
secret". The taboo on sex in art and literature which was more strict thirty-five years
ago, seemed to him to corrode domestic and social life and his definite view was that a
candid discussion of sex through art was the only catharsis for purifying and relieving
the congested emotions. This is the view he expounded through his writings and sex is
never absent from his novels, his poems and his critical writings. As he was inclined
freely to use words which Swift had used before him and many more, he never
considered his writings obscene. He used them in this book with profusion and they
occur in conversation between Mellors and Constance and in the descriptions of the
sexual congresses and the erotic love play. The realism is staggering and outpaces the
French Realists. But he says of himself :
"I am abused most of all for using the so called 'obscene words'. Nobody quite
knows what the word 'obscene' itself means, or what it is intended to mean; but
gradually all the old words that belong to the body below the navel, have come
to be judged obscene." (introduction to Pansies).
That was the second motivating factor in the book.
One cannot doubt the sincerity of Lawrence's belief and his missionary zeal.
Boccaccio seemed fresh and wholesome to him and Dante was obscene. He
prepared a theme which would lend itself to treating with sex on the most erotic
plane and one from which the genteel society would get the greatest shock and
introduced a game-keeper in whose mouth he could put all the taboo words and
then he wrote of sex, of the sex organs and sex actions with brutal candidness.
With the magic of words he made the characters live and what might even have
passed for allegory and symbolism became extreme realism. He went too far.
While trying to edit the book so that it could be published in England he could
not excise the prurient parts. He admitted defeat and wrote to Seckers that he
"got colour-blind and did not know any more what was supposed to be proper
and what not." Perhaps he got colour-blind when he wrote it. He wanted to
shock genteel society, a society which had cast him out and banned him. He
wrote a book which in his own words was "a revolution - a bit of a bomb". No

doubt he wrote a flowering book with pistil and stamens standing but it was to
quote his on words again "a phallic novel, a shocking novel". He admitted it was
too good for the public. He was a courageous writer but his zeal was misplaced
because it was born of hate and his novel was "too phallic for the gross public."
26. This is where the law comes in. The law seeks to protect not those who can protect
themselves but those whose prurient minds take delight and secret sexual pleasure
from erotic writings. No doubt this is treating with sex by an artist and hence there is
some poetry even in the ugliness of sex. But as Judge Hand said obscenity is a
function of many variables. If by a series of descriptions of sexual encounters
described in language which cannot be more candid, some social good might result to
us there would be room for considering the book. But there is no other attraction in
the book. As J.B. Priestly said, "Very foolishly he tried to philosophize upon instead of
merely describing these orgiastic impulses : he is the poet of a world in rut, and and
lately he has become its prophet, with unfortunate results in his fiction." [The English
Novel. p. 142 (Nelson)]. The expurgated copy is available but the people who would
buy the unexpurgated copy do not care for it. Perhaps the reason is as was summed
up by Middleton Murray :
"Regarded objectively, it is a wearisome and oppressive book; the work of a
weary and hopeless man. It is remarkable, indeed notorious for its deliberate
use or unprintable words."
"The whole book really consists of detailed descriptions of their sexual
fulfilment. They are not offensive, sometimes very beautiful, but on the whole
strangely wearisome. The sexual atmosphere is suffocating. Beyond this sexual
atmosphere there is nothing, nothing." [Son of woman (Jonathan Cape)].
27. No doubt Murray says that in a very little while and on repeated readings the mind
becomes accustomed to them but he says that the value of the book then diminishes
and it leaves no permanent impression. The poetry and music which Lawrence
attempted to put into sex apparently cannot sustain it long and without them the book
is nothing. The promptings of the unconscious particularly in the region of sex is
suggested as the message in the book. But it is not easy for the ordinary reader to find
it. The Machine Age and its impact on social life which is its secondary theme does not
interest the reader for whose protection, as we said, the law has been framed.
28. We have dealt with the question at some length because this is the first case
before this court invoking the constitutional guarantee against the operation of the law
regarding obscenity and the book is one from an author of repute and the center of
many controversies. The book is probably an unfolding of his philosophy of life and of
the urges of the unconscious but these are unfolded in his other books also and have
been fully set out in his Psychoanalysis and the Unconscious and finally in the Fantasia
of the Unconscious. There is no loss to society if there was a message in the book. The
divagations with sex are not a legitimate embroidery but they are the only attractions
to the common man. When everything said in its favour we find the in treating with
sex the impugned portions viewed separately and also in the setting of the whole book
pass the permissible limits judged of from our community standards and as there is no
social gain to us which can be said to preponderate, we must hold the book to satisfy
type test we have indicated above.

29. In the conclusion we are of the opinion that the High Court was right in dismissing
the revision petition. The appeal fails and is dismissed.
30. Appeal dismissed.

Equivalent

Citation: AIR1977SC2229,

1977

AWC

739

(1977)4SCC451
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 480 of 1976

SC,

1977CriLJ1900,

Decided On: 22.03.1977

Appellants:Kurukshetra University and Anr.
Vs.
Respondent:State of Haryana and Anr.
Hon'ble
P.K. Goswami, P.N. Singhal and Y.V. Chandrachud, JJ.

Judges/Coram:

Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Criminal Procedure (CrPC) - Section 482 Indian Penal Code (IPC) - Section
448, Indian Penal Code (IPC) - Section 452
Case

Note:

Criminal - first information report -Sections 482 of Criminal Procedure Code,

1977 and Sections 448 and 452 of Indian Penal Code, 1860 - police registered
case against respondent No. 2 on complain filed by the warden of university High Court quashed FIR without issuing notice to university - matter before
Supreme Court - Apex Court set aside the judgment of High Court and
observed that university have the power to enforce discipline in its campus
and police cannot refuse to act on complaint by university for reason merely
that orders issued by university are not binding on outsiders - appeal allowed.

JUDGMENT
Y.V. Chandrachud, J.
1. The Kurukshetra University, which is one of the appellants before us filed a first
information report through its Warden in regard to an ' incident which is alleged to
have taken place on the night between 25th and 26th of Sep., 1975 in one of the
University hostels. Acting on that report, the police registered a case under
Sections 448 and 452, Penal Code, against respondent 2, Vinay Kumar. But before any
investigation could be done by the police, respondent 2 filed a petition in the High
Court of Punjab & Haryana praying that the First Information Report be quashed. The
High Court, without issuing notice to the University, quashed the First Information
Report by its judgment dated December 22, 1975 and directed respondent 1, the State
of Haryana to pay a sum of Rs. 300/- by way of costs to respondent 2. The University
asked for a review of the order since it had no notice of the proceedings, but that
application was dismissed by the High Court, giving rise to this appeal.

2. It surprises, us in the extreme that the High Court thought that in the exercise of its
inherent powers under Section 482 of the CrPC, it could quash a First Information
Report. The police had not even commenced investigation into the complaint filed by
the Warden of the University and no proceeding at all was pending in any court in
pursuance of the F.I.R. It ought to be realized that inherent powers do not confer an
arbitrary jurisdiction on the High Court to act according to whim or caprice. That
statutory power has to be exercised sparingly, with circumspection and in the rarest of
rare cases.
3. While quashing the F.I.R. the High Court went out of its way and made observations
concerning the University's power to enforce discipline in its campus. The High Court
seems to feel that outsiders can with impunity flout the University rule that no outsider
shall stay in a University hostel. Such a view is plainly calculated to subvert discipline
in a sphere where it is most needed. We are clear that the High Court ought not to
have made these observations without, at least, giving a hearing to the University.
4. We, therefore, allow this appeal and set aside the judgment of the High Court
including the order asking the State of Haryana to pay the costs amounting to Rs.
300/- to the respondent.
5. Mr. Mukherjee who appears on behalf of the University, happily assures us that the
University will not pursue the complaint against respondent No. 2. No further steps
need, therefore, be taken by the police to investigate into the complaint. It must,
however, be clearly understood that the police are under an obligation to investigate
into complaints filed by the University, whenever law casts upon them that obligation.
The Special Leave Petition filed before us states in Paragraph 18 that after the
judgment of the High Court it has become impossible for the University to maintain law
and order in its campus as the police have been obdurately refusing to accept any
complaint lodged by the University against ex-students and outsiders who enter the
campus at any time of the day and night, and stay in the hostels without the necessary
permission. It is the bounden duty of the police to record the complaints lodged by the
University and to inquire into them in accordance with law. If any cognizable offence is
disclosed, the police cannot refuse to act on the complaint lodged by the University for
the reason merely that the orders issued by the University are not binding on
outsiders.

Equivalent Citation: 2011(1)ACR518(SC), AIR2010SC3762, 2011(1)ALD(Cri)477,

2010ALLMR(Cri)3263(SC), 2011CriLJ89, JT2010(9)SC142, 2010(4)RCR(Criminal)187,
2010(8)SCALE542, (2010)9SCC701, [2010]10SCR683, 2010(9)UJ4230

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 590 of 2007
Decided On: 27.08.2010
Appellants: State of Maharashtra and Ors.
Vs.
Respondent: Arun Gulab Gawali and Ors.
Hon'ble
P. Sathasivam and B.S. Chauhan, JJ.

Judges/Coram:

Counsels:
For Appearing Parties: S.B. Sanyal, Sr. Adv., Arun R. Pednekar, Sanjay Kharde, Asha G.
Nair, Ravindra Keshavrao Adsure, Makarand D. Adkar, Vijay Kumar, D.D. Ghadge, S.S.
Mahajan, Vishwajit Singh, Braj Mishra, Aparna Jha, Abhishek Yadav and Vikram Advs.
Subject: Criminal
Catch Words
Mentioned IN
Relevant
Section:
Indian Penal Code, 1860 - Section 34; Indian Penal Code, 1860 - Section 120; Code of
Criminal Procedure, 1973 - Section 227, Code of Criminal Procedure, 1973 - Section
320
Acts/Rules/Orders:
Maharashtra Control of Organised Crime Act, 1999 ; Indian Penal Code 1860, (IPC) Section 34, Indian Penal Code 1860, (IPC) - Section 120, Indian Penal Code 1860,
(IPC) - Section 120B, Indian Penal Code 1860, (IPC) - Section 384, Indian Penal Code
1860, (IPC) - Section 386, Indian Penal Code 1860, (IPC) - Section 467, Indian Penal
Code 1860, (IPC) - Section 506; Code of Criminal Procedure, 1973 (CrPC) - Section
227, Code of Criminal Procedure, 1973 (CrPC) - Section 320,Code of Criminal
Procedure, 1973 (CrPC) - Section 482; Constitution of India - Article 226, Constitution
of India - Article 227
Cases
Referred:
State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. MANU/SC/0120/1982
: AIR 1982 SC 949; Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and
Ors. MANU/SC/1090/1998 : AIR 1998 SC 128; G. Sagar Suri and Anr. v. State of
U.P. and Ors. MANU/SC/0045/2000 : AIR 2000 SC 754; Ajay Mitra v. State of M.P.
and Ors. MANU/SC/0052/2003 : AIR 2003 SC 1069; R.P. Kapur v. State of
Punjab MANU/SC/0086/1960 : AIR 1960 SC 866; State of Haryana and Ors. v. Ch.
Bhajan Lal and Ors. MANU/SC/0115/1992 : AIR 1992 SC 604; State of Karnataka v.
L. Muniswamy and Ors. MANU/SC/0143/1977 : AIR 1977 SC 1489; Mrs.
Dhanalakshmi v. R. Prasanna Kumar and Ors. MANU/SC/0159/1989 : AIR 1990 SC

494; Ganesh Narayan Hegde v. S. Bangarappa and Ors. MANU/SC/0726/1995 :

(1995) 4 SCC 41; Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque
and Ors. MANU/SC/0932/2004 : AIR 2005 SC 9; State of Orissa and Anr. v. Saroj
Kumar Sahoo MANU/SC/2264/2005 : (2005) 13 SCC 540; B.S. Joshi and Ors. v.
State of Haryana and Anr.MANU/SC/0230/2003 : AIR 2003 SC 1386; Madhavrao
Jiwaji
Rao
Scindia
and
Anr. v. Sambhajirao
Chandrojirao
Angre
and
Ors. MANU/SC/0261/1988 : AIR 1988 SC 709; State of Bihar and Anr. v. Shri P.P.
Sharma and Anr. MANU/SC/0542/1992 : AIR 1991 SC 1260; Alpic Finance Ltd. v. P.
Sadasivan and Anr.MANU/SC/0106/2001 : AIR 2001 SC 1226; M.N. Damani v. S.K.
Sinha and Ors. MANU/SC/0325/2001 : AIR 2001 SC 2037
Prior
History:
From the Judgment and Order dated 27.07.2006 of the High Court of Judicature at
Bombay in Criminal Writ Petition No. 3169 of 2005 with Criminal Writ Petition No. 874
of 2006 and Criminal Writ Petition No. 878 of 2006
Disposition:
Appeal Dismissed
Citing

Reference:

Discussed
8
Mentioned
8

Case
Note:
Criminal - Quashing of First Information Report (FIR) - Sections 384, 386,
120, 120A of the Indian Penal Code, 1860 (IPC) - High Court ordered the
quashing of Criminal Complaint/FIR against the Respondents on the ground
that if the proceedings were permitted to continue, there was no possibility of
conviction after conclusion of the trial - Held, court, in exercise of its inherent
power, not competent to take a decision at the preliminary stage and
determine possibility of conviction Superior Courts have been given
inherent powers to prevent the abuse of the process of Court where the Court
finds that the ends of justice may be met by quashing the proceedings Power of quashing criminal proceedings has to be exercised very sparingly
and with circumspection and that too in the rarest of rare cases - Quashing a
FIR on the ground that the complainant himself was not supporting the
complaint, and he would not support the case of the prosecution so there
would be no chance of conviction, thus the trial itself would be a futile
exercise cannot be held to be justified in law - When there is an allegation
that the police had compelled the lodging of a false FIR, it is a matter which

requires further investigation as the charge is leveled against the police State is the prosecutor and all prosecution is the social and legal
responsibility of the State - Offence committed a crime against society and
not against victim alone - Appeal Dismissed
Ratio
Decidendi:
Power of quashing criminal proceedings to be exercised very sparingly and
with circumspection and that too in the rarest of rare cases.
JUDGMENT
B.S. Chauhan, J.
1. This appeal has been preferred against the Judgment and Order dated 27.07.2006
in Criminal Writ Petition No. 3169/2005 with Criminal Writ Petition Nos. 874 and 878 of
2006, passed by the High Court of Judicature at Bombay, allowing the said petitions
filed by the respondents and quashing the Criminal Complaint/FIR.
2. Facts and circumstances giving rise to the present appeal are that Mohd. Qureshi,
one of the respondents, lodged a complaint dated 8.11.2005 with Deputy
Commissioner of Police, CID (Unit III) against the Arun Gulab Gawali gang. The said
complaint was forwarded to Agripada Police Station. Accordingly, CR No. 241/2005
under Sections 384, 386, 506(ii), 120, 34 of Indian Penal Code, 1860 (in short, "IPC")
was registered against Arun Gulab Gawali, MLA, respondent herein, and members of
his gang, namely, Sunil Gathe, Sadanand Panchal, Rajendra Sadvirkar and Sanjay
Girkar. After taking over of the investigation by DCB, CID, Mumbai, CR No. 135/05 was
registered.
3. According to the said complaint, there was a commercial transaction in December,
2002, between one Mr. Doshi and Mohd. Qureshi in respect of the purchase of Hotel
Pritam International at Ambernath in partnership and certain payments had also been
made, but there was a dispute between the parties. An advertisement was issued for
sale of the hotel, but the said hotel could not be sold for two years and the differences
between them continued. On 15 th March, 2005, the complainant received a telephone
call from an unknown person, who used very vulgar and indecent language and told
the complainant to come to Dagadi Chawl for settlement of the dispute of Hotel Pritam.
Dagadi Chawl is the residential place of respondent, Arun Gulab Gawali, and he also
has an office in that Chawl. The complainant became scared and went to Dagadi Chawl
on 18th March, 2005. On reaching there the complainant met one person by the name
Sanjay Girkar, who abused him. Sanjay Girkar contacted Mr. Doshi on his mobile and
spoke with him in vulgar language and asked him to come to Dagadi Chawl for
settlement of the case of Hotel Pritam. The complainant and Mr. Doshi visited Dagadi
Chawl a number of times along with other persons. The accomplices of Arun Gulab
Gawali gave threats to them and directed them to act according to their instructions.
Due to fear of threats of the members of the said gang, Mr. Doshi and the complainant
agreed to pay the extortion money. The complainant was instructed to pay a sum of
Rs. 15 lakhs to Shiv Shambhu Trust, which is managed by Arun Gulab Gawali. The
complainant paid the amount of Rs. 15 lakhs to the said Trust under the threat that if
this amount was not paid, then his life would be in danger. The complainant also learnt
that Mr. Doshi had already paid Rs. 25 lakhs to the said gang under threat.
Subsequently, the accomplices of Arun Gulab Gawali made telephone calls to the

complainant to pay Rs. 3 lakhs more and the said amount was also paid. They also
forced the complainant to sign certain papers.
4. Mohd. Qureshi, the complainant/respondent, filed application dated 14.11.2005
before the Court of Metropolitan Magistrate (46th Court), Mazgaon, Mumbai stating that
he did not want to proceed with the complaint. The court rejected the said application
vide order dated 17.11.2005.
5. Mohd. Qureshi and his wife Ayesha Qureshi, respondents, filed Writ Petition No.
2906/2005 on 29.11.2005, before the High Court alleging harassment by the police
and seeking the direction of removal of surveillance by police, as police had been
posted with them under the garb of protection, and asking for the initiation of a judicial
inquiry against the police alleging that Mohd. Qureshi was forced by the police itself to
lodge the complaint dated 8.11.2005 against the Arun Gulab Gawali gang and also
forced to write an application seeking protection, though they never sought any such
protection.
6. The High Court disposed of the said Writ Petition vide order dated 21.12.2005,
recording the statement of the petitioners' counsel that police protection had already
been withdrawn and giving liberty to the said petitioners to make their grievances
before the Commissioner of Police, Mumbai. The Commissioner of Police was directed
that in case, such a complaint is filed, it should be decided expeditiously in accordance
with law.
7. Mohd. Qureshi filed Criminal Writ Petition No. 874/2006 before the High Court of
Bombay for quashing the CR No. 241/2005. Arun Gulab Gawali also preferred Writ
Petition No. 3169/05 seeking quashing of FIR 241/2005 at Agripada Police Station, and
Writ Petition No. 878/2006 for quashing of CR No. 135 of 2005. All the said Writ
Petitions were clubbed and heard together. The appellants herein contested the said
Petitions by filing Counter Affidavits.
8. In the meanwhile, Arun Gulab Gawali was granted anticipatory bail by the Sessions
Court vide order dated 3.12.2005. The High Court cancelled the anticipatory bail of
Arun Gulab Gawali vide Order dated 21.02.2006 and remanded the case to the
Sessions Court to consider it afresh. During the pendency of the reconsideration of the
said application, proceedings under Maharashtra Control of Organised Crime Act, 1999
(MCOCA) against Arun Gulab Gawali were initiated vide order dated 14.04.2006.
The High Court allowed all the said Writ Petitions quashing the C.R. No. 241/2005, and
C.R. No. 135/2005. Hence, this appeal.
9. Sh. Arun R. Pednekar, learned Counsel for the appellants, has submitted that the
High Court has committed a grave error in quashing the FIR/complaint. Mohd. Qureshi,
respondent, had filed a complaint against the Arun Gulab Gawali gang on the basis of
which a case was registered. If for certain reasons or under threat by the Arun Gulab
Gawali gang, Mohd. Qureshi did not want to pursue the matter further, such a course
could not be a ground for quashing the proceedings. More so, the High Court reached
the conclusion that if the proceedings were permitted to continue, there was no
possibility of conviction after conclusion of the trial. The Court, in exercise of its
inherent power, is not competent to take a decision at the preliminary stage and
determine as to whether there is a possibility of conviction. Thus, the impugned
Judgment and order of the High Court is liable to be set aside.

10. Per contra, Mr. S.B. Sanyal, learned senior counsel for Respondent Nos. 2 & 3 and
Mr. Makarand D. Adkar, learned Counsel for the respondent No. 1, have vehemently
opposed the appeal contending that the Court had examined the facts and taken note
of various proceedings initiated by the respondents in the meantime to the effect that
the police officials had been harassing Mohd. Qureshi and his family and it was the
police who forced the complainant to lodge the complaint against the Arun Gulab
Gawali gang and, he was forced to take police protection labeling him as a complainant
against the Arun Gulab Gawali gang. Ayesha Qureshi filed the appropriate application
before the Metropolitan Magistrate on 9.11.2005 and approached the State Human
Rights Commission on 11.11.2005 against the atrocities of the police. The High Court
decided the matter after considering all the aspects. The Judgment and order of the
High Court does not warrant any interference. The appeal lacks merit and is liable to
be dismissed.
11. We have considered the rival submissions made by learned Counsel for the parties
and perused the record.
12. The power of quashing criminal proceedings has to be exercised very sparingly
and with circumspection and that too in the rarest of rare cases and the Court
cannot be justified in embarking upon an enquiry as to the reliability or genuineness or
otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so
patently absurd and inherently improbable so that no prudent person can ever reach
such a conclusion. The extraordinary and inherent powers of the Court do not confer
an arbitrary jurisdiction on the Court to act according to its whims or caprice. However,
the Court, under its inherent powers, can neither intervene at an uncalled for stage nor
it can 'soft-pedal the course of justice' at a crucial stage of investigation/ proceedings.
The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter called as 'Cr.P.C.') are a device to
advance justice and not to frustrate it. The power of judicial review is discretionary,
however, it must be exercised to prevent the miscarriage of justice and for correcting
some grave errors and to ensure that stream of administration of justice remains clean
and pure. However, there are no limits of power of the Court, but the more the power,
the more due care and caution is to be exercised in invoking these powers.
(Vide State of West Bengal and Ors. v. Swapan Kumar Guha and
Ors. MANU/SC/0120/1982 : AIR 1982 SC 949; M/s. Pepsi Foods Ltd. and
Anr. v. Special Judicial Magistrate and Ors. MANU/SC/1090/1998 : AIR 1998 SC
128; G. Sagar Suri and Anr. v. State of U.P. and Ors. MANU/SC/0045/2000 : AIR
2000 SC 754; and Ajay Mitra v. State of M.P. and Ors.MANU/SC/0052/2003 : AIR
2003 SC 1069).
13. In R.P. Kapur v. State of Punjab MANU/SC/0086/1960
this Court laid down the following principles:

: AIR 1960 SC 866,

(I) Where institution/continuance of criminal proceedings against an accused

may amount to the abuse of the process of the court or that the quashing of the
impugned proceedings would secure the ends of justice;
(II) where it manifestly appears that there is a legal bar against the institution
or continuance of the said proceeding, e.g. want of sanction;

(III) where the allegations in the First Information Report or the complaint
taken at their face value and accepted in their entirety, do not constitute the
offence alleged; and
(IV) where the allegations constitute an offence alleged but there is either no
legal evidence adduced or evidence adduced clearly or manifestly fails to prove
the charge.
14. In State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. MANU/SC/0115/1992
: AIR 1992 SC 604, this Court laid down the similar guidelines for exercising the
inherent power, giving types of cases where the Court may exercise its inherent power
to quash the criminal proceedings. However, the types of cases mentioned therein do
not constitute an exhaustive list, rather the cases are merely illustrative.
15. In State of Karnataka v. L. Muniswamy and Ors. MANU/SC/0143/1977
1977 SC 1489, this Court held as under:

: AIR

In the exercise of this wholesome power, the High Court is entitled to quash a
proceeding if it comes to the conclusion that allowing the proceeding to
continue would be an abuse of the process of the Court or that the ends of
justice require that the proceeding ought to be quashed. The saving of the High
Court's inherent powers, both in civil and criminal matters is designed to
achieve a salutary public purpose which is that a court proceeding ought not to
be permitted to degenerate into a weapon of harassment or persecution. In a
criminal case, the veiled object behind a lame prosecution, the very nature of
the material on which the structure of the prosecution rests and the like would
justify the High Court in quashing the proceeding in the interest of justice. The
ends of justice are higher than the ends of mere law though justice has
got to be administered according to laws made by the legislature. The
compelling necessity for making these observations is that without a proper
realisation of the object and purpose of the provision which seeks to save the
inherent powers of the High Court to do justice between the State and its
subjects it would be impossible to appreciate the width and contours of that
salient jurisdiction.
(Emphasis added)
16. The inherent power is to be exercised ex debito justitiae, to do real and substantial
justice, for administration of which alone Courts exist. Wherever any attempt is made
to abuse that authority so as to produce injustice, the Court has power to prevent the
abuse. It is, however, not necessary that at this stage there should be a meticulous
analysis of the case before the trial to find out whether the case ends in conviction or
acquittal.
(Vide Mrs.
Dhanalakshmi v. R.
Prasanna
Kumar
and
Ors. MANU/SC/0159/1989 : AIR 1990 SC 494; Ganesh Narayan Hegde v. S.
Bangarappa and Ors. MANU/SC/0726/1995 : (1995) 4 SCC 41; and M/s Zandu
Pharmaceutical
Works
Ltd.
and
Ors. v. Md.
Sharaful
Haque
and
Ors. MANU/SC/0932/2004 : AIR 2005 SC 9).
17. In State of Orissa and Anr. v. Saroj Kumar Sahoo MANU/SC/2264/2005 :
(2005) 13 SCC 540, it has been held that probabilities of the prosecution version can
not be analysed at this stage. Likewise the allegations of mala fides of the informant
are of secondary importance. The relevant passage reads thus:

It would not be proper for the High Court to analyse the case of the
complainant in the light of all probabilities in order to determine
whether a conviction would be sustainable and on such premises arrive
at a conclusion that the proceedings are to be quashed. It would be erroneous
to assess the material before it and conclude that the complaint cannot be
proceeded with.
(Emphasis added)
18. In B.S. Joshi and Ors. v. State of Haryana and Anr. MANU/SC/0230/2003 :
AIR 2003 SC 1386, this Court held that inherent power must be utilised with the sole
purpose of preventing the abuse of the process of the court or to otherwise serve the
ends of justice. In exercise of inherent powers, proper scrutiny of facts and
circumstances of the case concerned are absolutely imperative.
19. In Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao
Angre and Ors. MANU/SC/0261/1988 : AIR 1988 SC 709, this Court held as under:
The legal position is well-settled that when a prosecution at the initial stage is
asked to be quashed, the test to be applied by the court is as to whether the
uncontroverted allegations as made prima facie establish the offence. It is also
for the court to take into consideration any special features which
appear in a particular case to consider whether it is expedient and in the
interest of justice to permit a prosecution to continue. This is so on the basis
that the court cannot be utilised for any oblique purpose and where in the
opinion of the court chances of an ultimate conviction is bleak and,
therefore, no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the court may while taking into consideration the
special facts of a case also quash the proceeding even though it may be at a
preliminary stage.
(Emphasis added)
20. This Court, while reconsidering the Judgment in Madhavrao Jiwaji Rao
Scindia (supra), consistently observed that where matters are also of civil nature i.e.
matrimonial, family disputes, etc., the Court may consider "special facts", "special
features" and quash the criminal proceedings to encourage genuine settlement of
disputes between the parties.
21. The said Judgment was reconsidered and explained by this Court in State of Bihar
and Anr. v. Shri P.P. Sharma and Anr. MANU/SC/0542/1992 : AIR 1991 SC 1260,
as under:
Madhaorao J. Scindhia v. Sambhaji Rao MANU/SC/0261/1988 : AIR 1988
SC 709, also does not help the respondents. In that case the allegations
constituted civil wrong as the trustees created tenancy of Trust
property to favour the third party.A private complaint was laid for the
offence under Section 467 read with Section 34 and Section 120B I.P.C. which
the High Court refused to quash under Section 482. This Court allowed the
appeal and quashed the proceedings on the ground that even on its own
contentions in the complaint, it would be a case of breach of trust or a civil
wrong but no ingredients of criminal offences were made out. On those facts

and also due to the relation of the settler, the mother, the appellant and his
wife, as the son and daughter-in-law, this Court interfered and allowed the
appeal.... Therefore, the ratio therein is of no assistance to the facts in this
case. It cannot be considered that this Court laid down as a proposition
of law that in every case the court would examine at the preliminary
stage whether there would be ultimate chances of conviction on the
basis of allegation and exercise of the power under Section 482 or
Article 226 to quash the proceedings or the charge-sheet.
(Emphasis added)
22. In Alpic Finance Ltd. v. P. Sadasivan and Anr. MANU/SC/0106/2001 : AIR
2001 SC 1226, this Court explained the ratio of the Judgment in Madhavrao Jiwaji
Rao Scindia (supra), that law laid down therein would only apply where it is a
question of a civil wrong, which may or may not amount to a criminal
offence. Madhavrao Jiwaji Rao Scindia (supra) was the case involving a trust where
proceedings were initiated by some of the trustees against other trustees. This Court,
after coming to the conclusion, that the dispute was predominantly civil in nature and
that the parties were willing to compromise, quashed the proceedings.
23. In M.N. Damani v. S.K. Sinha and Ors. MANU/SC/0325/2001 : AIR 2001 SC
2037, this Court again explained the Judgment in Madhavrao Jiwaji Rao
Scindia (supra) in a similar manner.
24. Thus, the judgment in Madhavrao Jiwaji Rao Scindia (supra) does not lay down
a law of universal application. Even as per the law laid down therein the court can not
examine the facts/evidence etc. in every case to find out as to whether there is
sufficient material on the basis of which the case would end in conviction. The ratio of
the said Judgment is applicable in limited cases where the Court finds that the dispute
involved therein is predominantly civil in nature and that the parties should be given a
chance to reach a compromise e.g. matrimonial, property and family disputes etc. etc.
The Superior Courts have been given inherent powers to prevent the abuse of the
process of Court where the Court finds that the ends of justice may be met by
quashing the proceedings, it may quash the proceedings, as the end of achieving
justice is higher than the end of merely following the law. It is not necessary for the
court to hold a full- fledged inquiry or to appreciate the evidence, collected by the
Investigating Agency, if any to find out whether the case would end in conviction or
acquittal.
25. The instant case is required to be examined in the light of the aforesaid settled
legal propositions.
The High Court proceeded on the perception that as the complainant himself was not
supporting the complaint, he would not support the case of the prosecution and there
would be no chance of conviction, thus the trial itself would be a futile exercise.
Quashing of FIR/Complaint on such a ground cannot be held to be justified in law.
Ordinarily, the Court of Sessions is empowered to discharge an accused under
Section 227 Cr.P.C. even before initiating the trial. The accused can, therefore, move
the Trial Court itself for such a relief and the Trial Court would be in a better position to
analyse and pass an order as it is possessed of all the powers and the material to do
so. It is, therefore, not necessary to invoke the jurisdiction under Section 482 Cr.P.C.
for the quashing of a prosecution in such a case. The reliance on affidavits by the High

Court would be a weak, hazy and unreliable source for adjudication on the fate of a
trial. The presumption that an accused would never be convicted on the material
available is too risky a proposition to be accepted readily, particularly in heinous
offences like extortion.
A claim founded on a denial by the complainant even before the trial commences
coupled with an allegation that the police had compelled the lodging of a false FIR, is a
matter which requires further investigation as the charge is levelled against the police.
If the prosecution is quashed, then neither the Trial Court nor the Investigating Agency
has any opportunity to go into this question, which may require consideration. The
State is the prosecutor and all prosecution is the social and legal responsibility of the
State. An offence committed is a crime against a society and not against a victim
alone. The victim under undue pressure or influence of the accused or under any
threat or compulsion may resile back but that would not absolve the State from
bringing the accused to book, who has committed an offence and has violated the law
of the land.
Thus, while exercising such power the court has to act cautiously before proceeding to
quash a prosecution in respect of an offence which hits and affects the society at large.
It should be a case where no other view is possible nor any investigation or inquiry is
further required. There cannot be a general proposition of law, so as to fit in as a
straitjacket formula for the exercise of such power. Each case will have to be judged on
its own merit and the facts warranting exercise of such power.
More so, it was not a case of civil nature where there could be a possibility of
compromise or involving an offence which may be compoundable under
Section 320Cr.P.C., where the Court could apply the ratio of the case in Madhavrao
Jiwaji Rao Scindia (supra).
Thus, it is a fit case where the impugned Judgment should be set aside and the case
be remitted for deciding afresh. As the matter is old and we have gone through the
entire material on record, we have taken this task upon ourselves and examined
whether the FIR could have been quashed on other grounds. The complainant has
submitted before the High Court as well as before us on oath that he was in police
custody/police protection from 7.11.2005 to 9.11.2005 and he was forced to write the
complaint against the Arun Gulab Gawali gang on 8.11.2005. Ayesha Qureshi, wife of
the complainant, made an application on 9.11.2005 before the Metropolitan Magistrate
(37th Court) at Esplanade for issuing direction to the police to release her husband or
produce him before the court. Immediately after filing of the said application, Mohd.
Qureshi stood released. Again on 11.11.2005, Ayesha Qureshi sent a complaint to the
State Human Rights Commission stating that her husband had been confined in police
custody, tortured and was forcibly made to sign some papers. On 12.11.2005, Mohd.
Qureshi made an application before Additional Chief Metropolitan Magistrate to drop
the proceedings in the FIR/Complaint. Again on 14.11.2005, Mohd. Qureshi made an
application before Metropolitan Magistrate submitting that he did not want to proceed
with the said complaint. The said application was rejected by the Metropolitan
Magistrate vide order dated 17.11.2005. Mohd. Qureshi and his wife filed the writ
petition before the High Court on 29.11.2005 for the withdrawal of the so- called police
protection and for a judicial inquiry on the issue of forcing the complainant to lodge an
FIR/Complaint against the Arun Gulab Gawali gang.

26. The matter was heard by the High Court and disposed of, issuing a direction that
there shall be no police personnel around Mohd. Qureshi, his wife and other family
members and further directing the Police Commissioner to redress their grievances in
respect of their allegation that Mohd. Qureshi had been forced by the police to lodge a
complaint against the Arun Gulab Gawali gang. The other writ petitions for quashing of
FIR/complaint were filed by Mohd. Qureshi, his wife Ayesha Qureshi and Arun Gulab
Gawali at a later stage i.e. in April, 2006 and the said petitions, after contest, had
been allowed vide Judgment and order dated 27.7.2006. If the aforesaid facts are
examined in correct perspective, it is evident that all possible steps had been taken by
Ayesha Qureshi in a very close proximity to the date of lodging the complaint. At the
cost of repetition, we mention again that the complaint was lodged on 8.11.2005 and
application was moved by Ayesha Qureshi before the Chief Metropolitan Magistrate for
release of Mohd. Qureshi from police custody or his production before the court on
9.11.2005. She approached the State Human Rights Commission on 11.11.2005 and
all other steps have also been taken with due diligence and promptness. Therefore, it
cannot be said that such complaints had been made by Ayesha Qureshi under any
threat or that the complainant did not want to support the case of the prosecution for
some other reason. There has been a persistent stand taken by Ayesha Qureshi that
the complaint was not made voluntarily and her husband and other family members
had been subjected to great deal of harassment and persecution by the police for no
fault of theirs. In such a fact-situation, the possibility that the allegations made by
Mohd. Qureshi and Ayesha Qureshi in their complaints/applications/writ petitions may
be true, cannot be ruled out. Thus, it was a fit case, where in order to meet the ends
of justice and to prevent the miscarriage of criminal justice, the inherent powers of the
Court to quash the FIR/complaint could have been exercised.
27. Thus, the complaint dated 8.11.2005 lodged by Mohd. Qureshi against the Arun
Gulab Gawali gang was liable to be quashed, though for different reasons, as recorded
hereinabove.
28. In view of the above, the Criminal Appeal stands dismissed.

Equivalent

Citation: AIR1960SC866,

(1961)

31

AWR

49,

1960CriLJ1239,

[1960]3SCR388
IN THE SUPREME COURT OF INDIA
Decided On: 25.03.1960
Appellants:R.P. Kapur
Vs.
Respondent:The State of Punjab
Hon'ble
K.C. Das Gupta, K.N. Wanchoo and P.B. Gajendragadkar, JJ.

Judges/Coram:

Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) - Section 561
Cases
Referred:
Nripendra Bhusan Ray vs. Gobinda Bandhu Majumdar MANU/WB/0215/1923
Citing

Discussed

Reference:

Case
Note:
Criminal - quashing of proceedings - Section 561-A of Criminal Procedure
Code, 1898 - appeal against Order of High Court that no case had been made
out for quashing of proceedings under Section 561-A - under said Section
High Court has inherent power to make such Orders as may be necessary to
give effect to any Order under this Code or prevent abuse of process of Court
- there is no legal bar to institution of legal proceedings on basis of
allegations in first information report lodged by respondent - also allegations
made do constitute offences to continue with proceedings - even on face of
delay in filing police report under Section 173 appellant's prayer to quash
proceedings
cannot
be
sustained.

JUDGMENT
P.B. Gajendragadkar, J.
1. On December 10, 1958, Mr. M. L. Sethi lodged a First Information Report against
the appellant Mr. R. P. Kapur and alleged that he and his mother-in-law Mrs. Kaushalya
Devi had committed offences under Sections 420,109, 114 and 120B of the Indian
Penal Code. When the appellant found that for several months no further action was
taken on the said First Information Report which was hanging like a sword over his
head he filed a criminal complaint on April 11, 1959, against Mr. Sethi under
Sections 204, 211 and 385 of the Indian Penal Code and thus took upon himself the
onus to prove that the First Information Report lodged by Mr. Sethi was false. On the
said complaint Mr. Sethi moved that the proceedings in question should be stayed as
the police had not made any report on the First Information Report lodged by him and
that the case started by him was still pending with the police. After hearing arguments
the learned Magistrate ordered that the appellant's complaint should stand adjourned.
2. Thereupon the appellant moved the Punjab High Court under s. 561-A of the Code
of Criminal Procedure for quashing the proceedings initiated by the First Information
Report in question. Pending the hearing of the said petition in the said High Court the
police report was submitted under s. 173 of the Code on July 25, 1959. Subsequently,
on September 10, 1959, Mr. Justice Capoor heard the appellant's petition and held that
no case had been made out for quashing the proceedings under s. 561-A. In the result
the petition was dismissed. It is against this order that the appellant has come to this
Court by special leave.
3. The material facts leading to the proceedings against the appellant lie within a very
narrow compass. It appears that in January 1957 the mother-in-law of the appellant
and his wife entered into an agreement with the owners of certain lands in village
Mohammadpur Munirka to purchase lands at Rs. 5 per sq. yd. Earnest money was
accordingly paid to the vendors and it was agreed that the sale had to be completed by
April 13, 1957; by consent this period was extended to June 13, 1957. Meanwhile, on
March 8, 1957, notifications were issued by the Chief Commissioner under
Sections 4 and 6 of the Land Acquisition Act, 1894, for acquiring considerable area of
land which included the lands belonging to the vendors; this acquisition was intended

for the housing scheme of the Ministry of Works, Housing and Supply in the
Government of India. The proposed acquisition was treated as one of urgency and so
under s. 17 of the Acquisition Act possession of the land was taken by the Collector on
June 8, 1957. Some of the persons concerned in the said lands filed objections against
the validity of the action taken under s. 17. It was under these circumstances that the
sale deeds were executed by the vendors in favour of Mrs. Kaushalya Devi and certain
other vendees on June 12, 1957. It appears that the vendees presented their claim
before the Land Acquisition Collector and an award has been made in September 1958
by which Mrs. Kaushalya Devi has been allowed compensation at Rs. 3-8-0 per sq. yd.
That is how the title of the lands in question passed to Mrs. Kaushalya Devi.
4. The First Information Report filed by Mr. Sethi alleges that he and the appellant
were friends and that on January 4, 1958, the appellant dishonestly and fraudulently
advised him to purchase 2,000 sq. yds. of land in Khasra Nos. 22, 23, 24 and 25 in the
aforesaid village Mohammadpur Munirka on the representation that as owner of the
land in the area Mr. Sethi would get a plot of desired dimensions in the same area
developed by the Ministry under its housing scheme. The appellant also represented to
Mr. Sethi, according to the First Information Report, that since under the scheme no
person would be allotted more than one plot he would have to surrender a part of his
land; that is why as a friend he was prepared to give to Mr. Sethi one plot at the price
at which it had been purchased. According to Mr. Sethi the appellant dictated an
application which he was advised to send to the Secretary of the Ministry of Works and
he accordingly sent it as advised. The First Information Report further alleges that the
appellant had assured Mr. Sethi that the land had been purchased by his mother-in-law
at Rs. 10 per sq. yd. Acting on this representation Mr. Sethi paid Rs. 10,000 by cheque
drawn in favour of Mrs. Kaushalya Devi on January 6, 1958. This cheque has been
cashed. Subsequently a draft of the sale deed was sent by the appellant to Mr. Sethi in
the beginning of March 1958 and on March 6, 1958, a further sum of Rs. 10,000 was
paid by cheque. The draft was duly returned to the appellant with a covering letter in
which Mr. Sethi stated that he would have liked to add one clause to the deed to the
effect that in the event of the authorities not accepting the sale for the purpose of
allotment, the amount of Rs. 20,000 would be refunded to him; and he expressed the
hope that even if the said clause was not included in the document the appellant would
accept it. The sale deed in favour of Mr. Sethi was registered on March 21, 1958. It is
this transaction which has given rise to the First Information Report in question.
5. Broadly stated the First Information Report is based on four material allegations
about fraudulent misrepresentation. It is alleged that the appellant fraudulently
misrepresented to Mr. Sethi that the land had been purchased at Rs. 10 per sq. yd.;
that the appellant fraudulently concealed from Mr. Sethi the pendency of the
proceedings before the Land Acquisition Collector, Delhi, and of the acquisition of the
said property under s. 17 of the said Act; he also made similar fraudulent
misrepresentations as regards the scheme of housing to which he referred. As a result
of these misrepresentations Mr. Sethi entered into the transaction and parted with Rs.
20,000. That in brief is the nature of the complaint made by Mr. Sethi in his First
Information Report. The appellant urged before the Punjab High Court that the case
started against him by the First Information Report should be quashed under s. 561-A
of the Code. The Punjab High Court has rejected the appellant's contention. The
question which arises for our decision in the present appeal is : Was the Punjab High
Court in error in refusing to exercise its inherent jurisdiction under s. 561-A of the
Code in favour of the appellant ?

6. Before dealing with the merits of the appeal it is necessary to consider the nature
and scope of the inherent power of the High Court under s. 561-A of the Code. The
said section saves the inherent power of the High Court to make such orders as may
be necessary to give effect to any order under this Code or to prevent abuse of the
process of any court or otherwise to secure the ends of justice. There is no doubt that
this inherent power cannot be exercised in regard to matters specifically covered by
the other provisions of the Code. In the present case the magistrate before whom the
police report has been filed under s. 173 of the Code has yet not applied his mind to
the merits of the said report and it may be assumed in favour of the appellant that his
request for the quashing of the proceedings is not at the present stage covered by any
specific provision of the Code. It is well-established that the inherent jurisdiction of the
High Court can be exercised to quash proceedings in a proper case either to prevent
the abuse of the process of any court or otherwise to secure the ends of justice.
Ordinarily criminal proceedings instituted against an accused person must be tried
under the provisions of the Code, and the High Court would be reluctant to interfere
with the said proceedings at an interlocutory stage. It is not possible, desirable or
expedient to lay down any inflexible rule which would govern the exercise of this
inherent jurisdiction. However, we may indicate some categories of cases where the
inherent jurisdiction can and should be exercised for quashing the proceedings. There
may be cases where it may be possible for the High Court to take the view that the
institution or continuance of criminal proceedings against an accused person may
amount to the abuse of the process of the court or that the quashing of the impugned
proceedings would secure the ends of justice. If the criminal proceeding in question is
in respect of an offence alleged to have been committed by an accused person and it
manifestly appears that there is a legal bar against the institution or continuance of
the said proceeding the High Court would be justified in quashing the proceeding on
that ground. Absence of the requisite sanction may, for instance, furnish cases under
this category. Cases may also arise where the allegations in the First Information
Report or the complaint, even if they are taken at their face value and accepted in
their entirety, do not constitute the offence alleged; in such cases no question of
appreciating evidence arises; it is a matter merely of looking at the complaint or the
First Information Report to decide whether the offence alleged is disclosed or not. In
such cases it would be legitimate for the High Court to hold that it would be manifestly
unjust to allow the process of the criminal court to be issued against the accused
person. A third category of cases in which the inherent jurisdiction of the High Court
can be successfully invoked may also arise. In cases falling under this category the
allegations made against the accused person do constitute an offence alleged but there
is either no legal evidence adduced in support of the case or evidence adduced clearly
or manifestly fails to prove the charge. In dealing with this class of cases it is
important to bear in mind the distinction between a case where there is no legal
evidence or where there is evidence which is manifestly and clearly inconsistent with
the accusation made and cases where there is legal evidence which on its appreciation
may or may not support the accusation in question. In exercising its jurisdiction under
s. 561-A the High Court would not embark upon an enquiry as to whether the evidence
in question is reliable or not. That is the function of the trial magistrate, and ordinarily
it would not be open to any party to invoke the High Court's inherent jurisdiction and
contend that on a reasonable appreciation of the evidence the accusation made against
the accused would not be sustained. Broadly stated that is the nature and scope of the
inherent jurisdiction of the High Court under s. 561-A in the matter of quashing
criminal proceedings, and that is the effect of the judicial decisions on the point (Vide :
In Re : Shripad G. Chandavarkar A.I.R. 1928 Bom. 184Jagat Chandra Mozumdar v.
Queen Empress I.L.R. (1899) Cal. 786 Dr. Shanker Singh v. The State of

Punjab (1954) 56 Pun L.R. 54, Nripendra Bhusan Ray v.Gobind Bandhu Majumdar
MANU/WB/0215/1923 : AIR1924Cal1018 and Ramanathan Chettiyar v. K. Sivarama
Subrahmanya Ayyar I.L.R. (1924) Mad. 722
7. Mr. Kapur, who argued his own case with ability before us, strongly relied on the
decision of the Punjab High Court in S. P. Jaiswal v. The State & Anr. (1953) Pun L.R.
77 and contended that in the interest of justice and in order to avoid unnecessary
harassment to him we should ourselves examine the evidence on record and decide
whether the said evidence can possibly lead to his conviction. In that case Jaiswal was
charged with having committed offences under s. 147and s. 452 of the Code and it
does appear from the judgment of the High Court that the learned judge elaborately
considered all the evidence on which the prosecution relied and came to the conclusion
that the proceedings taken against Jaiswal and his co-accused should be quashed. It
is, however, clear from the judgment that the learned judge was very much impressed
by the fact that the police had reported that there was no case or at the most only a
technical offence against Jaiswal but the district magistrate had interfered with the
statutory duty of the police and had directed the police officer concerned to prosecute
him. On these facts the learned judge was inclined to take the view that there was a
violation of the fundamental right guaranteed to Jaiswal under Art. 21 of the
Constitution. Besides, in the opinion of the learned judge the evidence on which the
prosecution relied showed that the essential ingredients of the offence charged were
missing "and the very essentials were non-existent". It is on these findings that the
criminal proceedings against Jaiswal were quashed. It is unnecessary for us to consider
whether the fundamental right guaranteed under Art. 21 had really been contravened
or not. We have merely referred to the relevant findings recorded by the learned judge
in order to emphasize the fact that this decision cannot be read as an authority for the
proposition that an accused person can approach the High Court under s. 561-A of the
Code and ask it to appreciate the evidence adduced against him and quash the
proceedings in case it thought that the said evidence did not justify the charge. In fact,
in dealing with the case the learned judge has himself approved of the several
decisions which have construed the nature and scope of the inherent jurisdiction under
s. 561-A and so the decision must be confined to the basic findings recorded by the
learned judge in that case.
8. This being the true legal position the question which falls for our decision is : Does
the appellant show that his case falls under any of the three categories already
mentioned by us. There is no legal bar to the institution of the present proceedings or
their continuance, and it is obvious that the allegations made in the First Information
Report do constitute offences alleged against the appellant. His argument, however, is
that the evidence on record clearly and unambiguously shows that the allegations
made in the First Information Report are untrue; he also contends that "certain
powerful influences have been operating against him with a view to harm him and
debar him officially and otherwise and have instigated and later seized upon the false
First Information Report filed by Mr. Sethi against him". In this connection he has
naturally placed emphasis on the fact that the investigating agency has acted with
extraordinary dilatoriness in the matter and that for several months the police did not
make the report under s. 173 of the Code.
9. It is true that though the complaint against the appellant is essentially very simple
in its nature the police authorities did not make their report for nearly seven months
after the First Information Report was lodged. We have already indicated how the
appellant was driven to file a complaint on his own charging Mr. Sethi with having filed

a false First Information Report against him, and how the Report in question was filed
after the appellant moved the High Court by his present petition under s. 561-A. It is
very much to be deplored that the police officers concerned did not act diligently in this
matter, and it is not surprising that this unusual delay has given rise to the
apprehension in the mind of the appellant that the object of the delay was to keep the
sword hanging over his head as long as possible. It is perhaps likely that the appellant
being the senior-most commissioner in the Punjab the investigating authorities may
have been cautious and circumspect in taking further steps on the First Information
Report; but we are satisfied that this explanation cannot account for the inordinate
delay made in submitting the report under s. 173. It is of utmost importance that
investigation into criminal offences must always be free from any objectionable
features or infirmities which may legitimately lead to the grievance of the accused that
the work of investigation is carried on unfairly or with any ulterior motive. Even so it is
difficult to see how this conduct on the part of the police officers can materially assist
the appellant in his prayer that the proceedings which have not reached the criminal
court should be quashed.
10. We must, therefore, now proceed to consider the appellant's case that the
evidence on record is demonstrably against the allegation of Mr. Sethi that he was
induced by the appellant to part with Rs. 20,000 as a result of the several
misrepresentations alleged in the First Information Report. He contends that the
principal allegation against him is two-fold, that he fraudulently and dishonestly
concealed from Mr. Sethi any information about the pendency of the proceedings
before the Collector, and fraudulently represented to him that the land had been
purchased at Rs. 10 per sq. yd. According to the appellant, if the correspondence on
the record is considered, and the statements made by Mr. Sethi and his wife and their
conduct at the material time are taken into account, it would irresistibly show that the
whole story about the fraudulent misrepresentations is untrue. The appellant has taken
us through the relevant correspondence and has referred us to the statements and the
conduct of the parties. We are anxious not to express any opinion on this part of the
appellant's argument. All we wish to say is that we would inevitably have to consider
the evidence ourselves and to appreciate it before we pronounce any opinion on the
validity or otherwise of the argument. It is not a case where the appellant can justly
contend that on the face of the record the charge levelled against him is unsustainable.
The appellant no doubt very strongly feels that on the relevant evidence it would not
be reasonably possible to sustain the charge but that is a matter on which the
appellant will have to satisfy the magistrate who takes cognizance of the case. We
would, however, like to emphasize that in rejecting the appellant's prayer for quashing
the proceedings at this stage we are expressing no opinion one way or the other on
the merits of the case.
11. There is another consideration which has weighed in our minds in dealing with this
appeal. The appellant has come to this Court under Art. 136 of the Constitution against
the decision of the Punjab High Court; and the High Court has refused to exercise its
inherent jurisdiction in favour of the appellant. Whether or not we would have come to
the same conclusion if we were dealing with the matter ourselves under s. 561-A is not
really very material because in the present case what we have to decide is whether the
judgment under appeal is erroneous in law so as to call for our interference under
Art. 136. Under the circumstances of this case we are unable to answer this question
in favour of the appellant.
The result is the appeal fails and is dismissed.

12. Appeal dismissed.

Equivalent Citation: 2006(1)ACR971(SC), AIR2006SC1322, 2006((2))ALT(Cri)106,

2006(2)ALT(Cri)106,
2006CriLJ1622,
2006(1)CTC666,
127(2006)DLT636(SC),
2006GLH(1)780,
JT2006(2)SC548,
2006(1)KLJ922,
2006(2)KLT404,
2006(2)KLT404(SC), 2006(2)MPHT308, 2006(2)PLJR216, 2006(2)RCR(Criminal)197,
2006(2)SCALE457, (2006)2SCC677, 2006(1)UC454
IN THE SUPREME COURT OF INDIA
Crl. A. No. 1229 of 2002
Decided On: 21.02.2006
Appellants: Ramesh Kumari
Vs.
Respondent: State (N.C.T. of Delhi) and Ors.
Hon'ble
H.K. Sema and AR. Lakshmanan, JJ.

Judges/Coram:

Counsels:
For Appellant/Petitioner/Plaintiff: Indu Malhotra, Adv.
For
Respondents/Defendant: Vikas
Singh,
(ASG), S.
Wasim
A.
Qadri, Anil
Katiyar and D.S. Mahra, Advs.
Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Criminal Procedure, 1973 (CrPC) - Section 41(1), Code of Criminal Procedure,
1973 (CrPC) - Section 154, Code of Criminal Procedure, 1973 (CrPC) - Section
154(1), Code of Criminal Procedure, 1973 (CrPC) - Section 154(3), Code of Criminal
Procedure, 1973 (CrPC) - Section 155, Code of Criminal Procedure, 1973 (CrPC) Section 156, Code of Criminal Procedure, 1973 (CrPC) - Section 157,Code of Criminal
Procedure, 1973 (CrPC) - Section 189; Code of Criminal Procedure, 1861 (CrPC) Section 139; Code of Criminal Procedure, 1872 (CrPC) - Section 112
Cases
Referred:
State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC
Citing
Reference:

Relied On
1

Prior
History
/
High
Court
Status:
From the Judgment and Order dated 24.1.2002 of the Delhi High Court in Criminal Writ
Petition No. 108/1998 (MANU/DE/0027/2002 )
Case
Note:
Code of Criminal Procedure - Section 154 - F.I.R. - Recording of - Concerned
officer is duty bound to register case on basis of information disclosing
cognizable offence - Allegation made against police personal - Interest of
justice would be better served if case is registered and investigated by
independent
agency
like
C.B.I.
Held: The views expressed by this Court in paragraphs 31, 32 and 33 as quoted
above leave no manners of doubt that the provision of Section 154 of the Code
is mandatory and the concerned officer is duty bound to register the case on
the basis of such an information disclosing cognizable offence. The CBI would
be an appropriate authority to register a case and investigate. We are also of
the view that since there is allegation against the police personnel, the interest
of justice would be better served if the case is registered and investigated by
an independent agency like the CBI.
JUDGMENT
H.K. Sema, J.
1. The challenge in this appeal is to the order dated 24-1-2002 passed by the Division
Bench of the Delhi High Court. The controversy in this appeal is confined to the nonregistration of the case by the police pursuant to a complaint dated 9-9-1997 and 13-91997 filed by the Appellant. It is stated that the Appellant was in possession of the land.
The stay order was granted by the High Court protecting the possession of the Appellant
on 14-8-1997 and it was extended by another order dated 10-9-1997, in the presence of
the other side. However, the Respondent Nos. 4 to 9 broke open the lock and removed

various articles on 9-9-1997 and 10-9-1997. We make it clear that we are not entering
into the merits of the case. The grievance of the Appellant is that an information of a
cognizable offence has been filed by the Appellant before the Station House Officer
(SHO), Kapashera on 9-9-1997 and 13-9-1997. However, no case was registered by the
concerned SHO. Thereafter, the matter was brought to the notice of the Police
Commissioner, without any result. This has led the Appellant to approach the High Court
by filing Criminal Writ Petition No. 108 of 1998. By the impugned order the High Court
was of the view that the Appellant has filed a Contempt Petition CCP No. 307/1997 and
that is pending before the High Court. The High Court found it difficult to direct to
register a case on the basis of the information filed by the Appellant. The High Court was
also of the view that the Appellant has alternative remedy available to her, albeit,
without indicating what is the alternative remedy available to the Appellant. The High
Court ultimately also observed that should Respondent Nos. 1 and 2 be seized of
Petitioner's complaint or representation, they shall also examine and pass appropriate
orders within three months.
2. Mr. Vikas Singh, learned Additional Solicitor General, at the outset, invites our
attention to the counter-affidavit filed by the Respondent and submit that pursuant to
the aforesaid observation of the High Court the complaint/representation has been
subsequently examined by the Respondent and found no genuine case was established.
We are not convinced by this submission because the sole grievance of the Appellant is
that no case has been registered in terms of the mandatory provisions of
Section 154(1) of the Criminal Procedure Code. Genuineness or otherwise of the
information can only be considered after registration of the case. Genuineness or
credibility of the information is not a condition precedent for registration of a case. We
are also clearly of the view that the High Court erred in law in dismissing the petition
solely on the ground that the contempt petition was pending and the Appellant had an
alternative remedy. The ground of alternative remedy nor pending of the contempt
petition would be no substitute in law not to register a case when a citizen makes a
complaint of a cognizance offence against the Police Officer.
3. That the Police Officer mandatorily registers a case on a complaint of a cognizable
offence by the citizen under Section 154 of the Code are no more res integra. The point
of law has been set at rest by this Court in the case of State of Haryana and Ors. v.
Bhajan Lal and Ors. MANU/SC/0115/1992 : 1992 Supp (1) SCC the whole gamut and
intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding
in paras 31 & 32 of the judgment as under:
31. At the stage of registration of a crime or a case on the basis of the information
disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the
Code, the concerned police officer cannot embark upon an enquiry as to whether the
information, laid by the informant is reliable and genuine or otherwise and refuse to
register a case on the ground that the information is not reliable or credible. On the
other hand, the officer in charge of a police station is statutorily obliged to register a
case and then to proceed with the investigation if he has reason to suspect the
commission of an offence which he is empowered under Section 156 of the Code to
investigate, subject to the proviso to Section 157. (As we have proposed to make a
detailed discussion about the power of a police officer in the field of investigation of a
cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing
part of this judgment, we do not propose to deal with those sections in extenso in the
present context). In case, an officer in charge of a police station refuses to exercise the
jurisdiction vested in him and to register a case on the information of a cognizable
offence reported and thereby violates the statutory duty cast upon him, the person
aggrieved by such refusal can send the substance of the information in writing and by
post to the Superintendent of Police concerned who if satisfied that the information
forwarded to him discloses a cognizable offence, should either investigate the case
himself or direct an investigation to be made by any police officer subordinate to him in
the manner provided by Sub-section (3) of Section 154 of the Code.

32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom
has carefully and cautiously used the expression "information" without qualifying the
same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable
complaint" and "credible information" are used. Evidently, the non-qualification of the
word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may
be for the reason that the police officer should not refuse to record an information
relating to the commission of a cognizable offence and to register a case thereon on the
ground that he is not satisfied with the reasonableness or credibility of the information.
In other words, 'reasonableness' or 'credibility' of the said information is not a condition
precedent for registration of a case. A comparison of the present Section 154with those
of the earlier Codes will indicate that the legislature had purposely thought it fit to
employ only the word "information" without qualifying the said word. Section 139 of the
Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of
India read that 'every complaint or information' preferred to an officer in charge of a
police station should be reduced into writing provision was subsequently modified by
Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every
complaint' preferred to an officer in charge of a police station shall be reduced in writing.
The word 'complaint' which occurred in previous two codes of 1861 and 1872 was
deleted and in that place the word 'information' was used in the Codes of 1882 and 1898
which word is now used in Sections 154, 155, 157 and 189(c) of the present Code of
1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the
condition; which is since qua non for recording a first information report is that there
must be an information and that information must disclose a cognizable offence.
Finally, this Court in para 33 said:
33. It is, therefore, manifestly clear that if any information disclosing a cognizable
offence is laid before an officer in charge of a police station satisfying the requirements
of Section 154(1) of the Code, the said police officer has no other option except to enter
the substance thereof in the prescribed form, that is to say, to register a case on the
basis of such information.
4. The views expressed by this Court in paragraphs 31, 32 and 33 as quoted above leave
no manners of doubt that the provision of Section 154 of the Code is mandatory and the
concerned officer is duty bound to register the case on the basis of such an information
disclosing cognizable offence.
5. Undisputedly, in the present case no case was registered pursuant to the complaint
dated 9-9-1997 and 13-9-1997 filed by the Appellant. It is also not disputed that the
Contempt Petition CCP No. 307/1997 filed by the Appellant is also pending disposal
before the High Court. It is, however, stated by the Respondent that the non-disposal of
the contempt petition is due to the non-prosecution by the Appellant. Be that as it may,
we are of the view that the contempt petition has been pending since 1997 and as such
petition should be disposed of with a sense of urgency otherwise the petition itself will
lose all its force and the purpose for which the contempt is initiated would be defeated.
6. In this case, admittedly, the complaint was filed against the Police Officer. learned
Counsel for the parties are not at variance that in such a situation the interest of justice
would be better served if this Court directs the CBI to register the case and investigate
the matter.
7. Mr. Vikas Singh, learned Additional Solicitor General although vehemently opposed
registration of the case but he fairly concedes that if at all the case be registered and
investigation is to be carried out, the CBI would be an appropriate authority to register a
case and investigate. We are also of the view that since there is allegation against the
police personnel, the interest of justice would be better served if the case is registered
and investigated by an independent agency like the CBI.

8. We, accordingly, direct that the CBI shall now register a case and investigate of the
complaint filed by the Appellant on 9-9-1997 and 13-9-1997. The CBI can collect the
complaint from the SHO, Police Station. Kapashera dated 9-9-1997 and 13-9-1997. The
complainant will also provide photocopies of the complaint dated 9-9-1997 and 13-91997 in case the original complaint is not traceable in the Police Station. Since, the
matter is pending from 1997 the CBI is directed to register the case and complete
investigation within a period of three months from today. We further clarify that by the
aforesaid directions we are not entering into the merits of the controversy of the case
nor casting aspersions on anybody including the local police.
9. We also request the Delhi High Court to expedite the disposal of Contempt Petition
CCP 307/1997 in any event not later than three months from today for which parties
shall give co-operation. The Registry shall despatch copies of this order to the CBI and
Delhi High Court forthwith. With the aforesaid direction the appeal is disposed of.
Order accordingly.

Equivalent Citation: 2007(3)ACR3153(SC), 2008(1)ALT(Cri)113, 2007CriLJ3729,

ILR2007(3)Kerala468,
JT2007(9)SC378,
2007(3)KLT1028(SC),
2007(3)RCR(Criminal)815, 2007(9)SCALE275, (2007)6SCC171, [2007]8SCR390
IN THE SUPREME COURT OF INDIA
Writ Petition (Criminal) Nos. 11-15 of 2003
Decided On: 18.07.2007
Appellants: Aleque Padamsee and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.
Hon'ble
Dr. Arijit Pasayat, P.K. Balasubramanyan and D.K. Jain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S. Ganesh, Sr. Adv., Aparna
Kumar and Anuradha Singh, Advs

Judges/Coram:

Bhat, P.

Ramesh

For Respondents/Defendant: Gopal Subramanian, ASG, V.N. Raghupathy, Hemamtika

Wahi, Sunita Sharma, T. Srinivasa Murthy,Sushma Suri, Sushil Karanjkar and Ravindra
Keshavrao Adsure, Advs.
Subject: Criminal
Catch Words
Mentioned IN
Relevant
Section:
Code of Criminal Procedure, 1973 - Section 196; Code of Criminal Procedure, 1973 Section 200
Acts/Rules/Orders:
Indian Penal Code 1860, (IPC) ;Code of Criminal Procedure, 1973 (CrPC) - Section
154, Code of Criminal Procedure, 1973 (CrPC) - Section 154(1), Code of Criminal
Procedure, 1973 (CrPC) - Section 156, Code of Criminal Procedure, 1973 (CrPC) Section 190, Code of Criminal Procedure, 1973 (CrPC) - Section 196, Code of Criminal
Procedure, 1973 (CrPC) - Section 200, Code of Criminal Procedure, 1973 (CrPC) Section 203; Constitution of India - Article 32
Cases
Referred:
Ramesh Kumari v. State (NCT of Delhi) and Ors. MANU/SC/8037/2006 ; All India
Institute of Medical Sciences Employees' Union (Reg) through its President v. Union of
India and Ors. MANU/SC/1769/1996 ; Gangadhar Janardan Mhatre v. State of
MaharashtraMANU/SC/0830/2004 ; Minu Kumari and Anr. v. State of Bihar and
Ors. MANU/SC/8098/2006 ; Hari Singh v. State of U.P.MANU/SC/8203/2006 ; Lallan
Chaudhary and Ors. v. State of Bihar MANU/SC/4524/2006
Citing
Reference:

Discussed
4
Mentioned
2

*Case
Note:
Code of Criminal Procedure, 1973 (Central Act 2 of 1974) - Sections 156, 190
and 200--Failure of Police Officers to register the FIR's in spite of commission
of cognizable offences being brought to their notice--Remedy is to prefer a
complaint before the Magistrate having jurisdiction requesting to take
cognizance of the offence in terms of Section 190 read with Section 200 Code of
Criminal Procedure--Writ petition in such cases is not to be entertained. Writ
petitions were filed before the Hon'ble Supreme Court complaining about the
inaction of Police Officials in not acting upon the complaints lodged before them
alleging commission of cognizable offences. The Hon'ble Supreme Court placing
reliance on earlier decisions, reiterated that proper remedy is to approach the
concerned Magistrate with a complaint and seek cognizance to be taken, as
provided under Sections 190 to 200 Code of Criminal Procedure It is also
observed that a writ petition in such cases is not to be entertained;
Held:

Whenever any information is received by the police about the alleged

commission of offence which is a cognizable one there is a duty to register the
FIR. There can be no dispute on that score. The only question is whether a writ
can be issued to the police authorities to register the same. The basic question
is as to what course is to be adopted if the police does not do it. The correct
position in law, therefore, is that the police officials ought to register the FIR
whenever facts brought to its notice show that cognizable offence has been
made out. In case the police officials fail to do so, the modalities to be adopted
are as set out in Section 190 read with Section 200 of the Code.
Ratio
Decidendi:
"Wherever the police officials fail to register FIR, when facts brought to its
notice show that cognizable offence has been made out, the modalities to be
adopted are as set out in Section 190 read with Section 200 of the Code of
Criminal Procedure."
JUDGMENT
Arijit Pasayat, J.
1. These petitions are filed under Article 32 of the Constitution of India, 1950 (in short
the 'Constitution'). The petitioners have stated that they have approached this Court
because of inaction of official respondents in not acting on the report lodged by two
persons namely, Sumesh Ramji Jadhav and Suresh Murlidhar Bosle. The basic grievance
is that though commission of offences punishable under the Indian Penal Code, 1860 (in
short the 'IPC') was disclosed, the police officials did not register the FIR and, therefore,
directions should be given to register the cases and wherever necessary accord sanction
in terms of Section 196 of the Code of Criminal Procedure, 1973 (in short the 'Code'). It
is stated that the speeches made by respondents 5 and 6 were likely to disturb the
communal harmony in the country and the likely result of such inflammatory speeches
was to create hatred in the minds of citizens against the persons belonging to minority
communities. It appears that so far as respondent No. 5 is concerned a complaint was
lodged at the police station in the State of Maharashtra where the complainants reside.
Since the police authorities in Maharashtra found that the alleged speeches were
delivered outside the State of Maharashtra and inside the State of Gujarat, they took up
the position that action could be taken by the authorities in Gujarat. Accordingly, the
report lodged was sent to the officials in Gujarat. So far as respondent No. 6 is
concerned sanction in terms of Section 196 of the Code was prayed for alleging that
there was complete inaction and, therefore, the writ petition has been filed. It was
pointed out by Learned Counsel for the petitioners that since undisputedly, the
commission of cognizable offence is disclosed even on a bare reading of the FIR lodged,
the authorities were not justified in not registering the FIR. It is contended that the
partisan approach of the authorities in the State of Gujarat is writ large, which is evident
from a bare reading of the counter affidavit filed. The role which is to be played by the
investigating agency and finally the court has been assumed by the authorities who were
not competent to deal with the matter. It is pointed out that in Ramesh Kumari v. State
(NCT of Delhi) and Ors.MANU/SC/8037/2006 : 2006CriLJ1622 this Court had said that
whenever cognizable offence is disclosed the police officials are bound to register the
same and in case it is not done, directions to register the same can be given.
2. Learned Counsel appearing for respondent No. 5 and the State of Gujarat submitted
that on a bare reading of the complaint lodged it appears that no offence was made out
and whenever a complaint is lodged automatically and in a routine manner FIR is not to
be registered. In any event, it is submitted that petition under Article 32 of the
Constitution is not a proper remedy.
3. Chapter XII of Code relates to "Information to the Police and their Powers to
Investigate". Section 154 reads as follows:
Information in cognizable cases.:(1) Every information relating to the commission of
a cognizable offence, if given orally to an officer in charge of a police station, shall be
reduced to writing by him or under his direction, and be read over to the informant; and

every such information, whether given in writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the substance thereof shall be entered in a book
to be kept by such officer in such form as the State Government may prescribe in this
behalf.
(2) A copy of the information as recorded under Sub-section (1) shall be given forthwith,
free of cost, to the informant.
(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police
station to record the information referred to in Sub- Section (1) may send the substance
of such information, in writing and by post, to the Superintendent of Police concerned
who, if satisfied that such information discloses the commission of a cognizable offence,
shall either investigate the case himself or direct an investigation to be made by any
police officer subordinate to him, in the manner provided by this Code, and such officer
shall have all the powers of an officer in charge of the police station in relation to that
offence.
4. Section 156 deals with "Police officer's power to investigate cognizable cases" and the
same reads as follows:
(1) Any officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having jurisdiction over the local area
within the limits of such station would have power to inquire into or try under the
provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the case was one which such officer was not empowered
under this Section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as
above- mentioned.
5. When the information is laid with the police, but no action in that behalf is taken, the
complainant can under Section 190 read with Section 200 of the Code lay the complaint
before the Magistrate having jurisdiction to take cognizance of the offence and the
Magistrate is required to enquire into the complaint as provided in Chapter XV of the
Code. In case the Magistrate, after recording evidence, finds a prima facie case, instead
of issuing process to the accused, he is empowered to direct the police concerned to
investigate into offence under Chapter XII of the Code and to submit a report. If he finds
that the complaint does not disclose any offence to take further action, he is empowered
to dismiss the complaint under Section 203 of the Code. In case he finds that the
complaint/evidence recorded prima facie discloses an offence, he is empowered to take
cognizance of the offence and could issue process to the accused. These aspects have
been highlighted by this Court in All India Institute of Medical Sciences Employees' Union
(Reg) through its President v. Union of India and Ors. MANU/SC/1769/1996 :
(1996)11SCC582 . It was specifically observed that a writ petition in such cases is not to
be entertained.
6. The above position was again highlighted in Gangadhar Janardan Mhatre v. State of
Maharashtra MANU/SC/0830/2004 : 2004CriLJ4623 , Minu Kumari and Anr. v. State of
Bihar and Ors. MANU/SC/8098/2006 : 2006CriLJ2468 and Hari Singh v. State of
U.P.MANU/SC/8203/2006 : 2006CriLJ3283 .
7. Whenever any information is received by the police about the alleged commission of
offence which is a cognizable one there is a duty to register the FIR. There can be no
dispute on that score. The only question is whether a writ can be issued to the police
authorities to register the same. The basic question is as to what course is to be adopted
if the police does not do it. As was held in All India Institute of Medical Sciences's case
(supra) and re-iterated in Gangadhar's case (supra) the remedy available is as set out
above by filing a complaint before the Magistrate. Though it was faintly suggested that
there was conflict in the views in All India Institute of Medical Sciences's case (supra),

Gangadhar's case (supra), Hari Singh's case (supra), Minu Kumari's case (supra) and
Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case
(supra) related to the action required to be taken by the police when any cognizable
offence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not
relate to the methodology to be adopted which was expressly dealt with in All India
Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's
case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case
(supra)
was
reiterated
in Lallan
Chaudhary
and
Ors. v. State
of
Bihar MANU/SC/4524/2006 : AIR2006SC3376 . The course available, when the police
does not carry out the statutory requirements under Section 154 was directly in issue in
All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari
Singh's case (supra) and Minu Kumari's case (supra). The correct position in law,
therefore, is that the police officials ought to register the FIR whenever facts brought to
its notice show that cognizable offence has been made out. In case the police officials fail
to do so, the modalities to be adopted are as set out in Sections 190 read with
Section 200 of the Code. It appears that in the present case initially the case was tagged
by order dated 24.2.2003 with WP(C) 530/2002 and WP(C) 221/2002. Subsequently,
these writ petitions were de-linked from the aforesaid writ petitions.
8. The writ petitions are finally disposed of with the following directions:
(1) If any person is aggrieved by the inaction of the police officials in registering the FIR,
the modalities contained in Section 190 read with Section 200 of the Code are to be
adopted and observed.
(2) It is open to any person aggrieved by the inaction of the police officials to adopt the
remedy in terms of the aforesaid provisions.
(3) So far as non-grant of sanction aspect is concerned, it is for the concerned
government to deal with the prayer. The concerned government would do well to deal
with the matter within three months from the date of receipt of this order.
(4) We make it clear that we have not expressed any opinion on the merits of the case.
*A reproduction from ILR (Kerala Series)

Equivalent Citation: AIR1972SC283, 1972CriLJ233, (1972)4SCC773, 1971(III)UJ830

IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 19 of 1967
Decided On: 23.08.1971
Appellants:Sheikh Hasib alias Tabarak
Vs.
Respondent:The State of Bihar

Hon'ble
Judges/Coram:
I.D. Dua, J.M. Shelat and Subimal Chandra Roy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: U. P. Singh, Adv
For Respondents/Defendant: D. Goburdhun, Adv.
Subject: Criminal
Subject: Law of Evidence
Catch Words
Mentioned IN
Cases
Referred:
Vaikuntam Chandrappa and Ors. vs. State of Andhra Pradesh MANU/SC/0224/1959
Acts/Rules/Orders:
Code of Criminal Procedure (CrPC) - Section 154, Code of Criminal Procedure (CrPC) Section 228; Indian Evidence Act - Section 145,Indian Evidence Act - Section 157 Indian
Penal Code (IPC) - Section 307, Indian Penal Code (IPC) - Section 395, Indian Penal
Code (IPC) - Section 398
Prior
History:
From the Judgment and Order dated July 27, 1966 of Patna High Court in Cr. Appeal. No.
519 of 1964
Citing
Reference:

Discussed
1

Case
Note:
Criminal - Dacoity - Sections 395, 307 and 398 of Indian Penal Code, 1860 Five accused including appellant were charged for offence under Sections 395,
307 and 398 for committing dacoity - All accused convicted for offence under
Section 395 and were sentenced to life imprisonment - On appeal High Court
set aside convictions of other accused but upheld conviction of appellant Hence, present appeal - Only evidence against appellant was his identification
by Inspector of police - Whether testimony of Inspector of police relating to
identification of appellant can be considered sufficient for sustaining appellant
conviction - Identification parades are ordinarily held at the instance of the
investigating officer for the purpose of enabling the witnesses to identify either
the properties which are the subject matter of alleged offence or the persons
who are alleged to have been concerned in the offence - Identification test of
appellant was of little value as accused was already known to the witnesses
and such identification parade cannot be used as corroborative evidence
supporting his identification in Court - Held, appellant liable to be acquitted as
there was no legal evidence connecting the appellant with the alleged offence Appeal allowed.
JUDGMENT
I.D. Dua, J.
1. Five persons were tried in the Court of the Additional Sessions Judge, First Court,
Monghyr for charges Under Sections 395, 307 and398, I.P.C. All of them were convicted
Under Section 395, IPC and acquitted of the charge Under Section 398, IPC. Accused,
Akal Yadav, was in addition convicted Under Section 307, IPC and was sentenced to
undergo rigorous imprisonment for life under each count. The other accused persons

were sentenced to undergo rigorous imprisonment for ten years each Under Section 395,
IPC.
2. On appeal the High Court set aside the convictions of Akal Yadav, Anandi Yadav and
Ashique Mian and allowing their appeals acquitted them. The convictions and sentences
of Sheikh Habib alias "Tabarak, the appellant in this Court and of Sheikh Quddua alias
K.hudwa were maintained Sheikh Hasib alias Tabarak alone has appealed to this Court
with Special leave under Article 136 of the Constitution.
3. According to the prosecution case on January 28, 1963 at about 7.45 p.m. several
dacoits had collected on P.W.D. road near Telia Talab, Monghyr police station mofassil and
committed dacoity in respect of the properties of a number of passers by. Ganesh Prasad
(P.W. 1) and his brother Kamaleshwar Tanti (P.W. 2) who were going together on a cycle
from Mong-hyr to their village Nawagarhi, were held up by about 15 dacoits and were
deprived of several valuable articles like watch, cycle, shirt, muffler and money. Those
articles were forcibly snatched from them on threat of violence. They were then made to
sit on one side, away from the main road. When they were sitting there, Thakur Prasad
Choudhary (P.W. 6), resident of village Garhi Rampur and Mukhia of the village
Panchayat and Ram Baran Mandal (P.W. 3) also happened to come on a rickshaw from
Monghyr side and while passing by the place of occurrence they too were intercepted by
the dacoits and deprived of their properties. A woman named Dayabati Devi (P.W. 4) and
one Prayag Narain Gupta (P.W. 5), a homeopath doctor, who also happened to pass that
way in a rickshaw were also attacked by the dacoits and forcibly deprived of their
belongings. In the meantime Ram Baran Mandal (P.W. 3) and Thakur Prasad Choudhary
(P.W. 6) somehow managed to escape in their rickshaw. When they reached Telia Talab
crossing from where one road goes towards Jamalpur, another towards Bariarpur and the
third one to-wards. Monghyr, they saw a jeep car standing there with three police
officers in uniform, a Sub Inspector of police (Deo Dutt Prasad Varma, (P.W 8, and an
Inspector of police (Jadunandan Singh, P.W. 10) along with driver-constable (Bansidhar
Singh, P.W. 9). Thakur Prasad Choudhary, Mukhia, narrated to them the occurrence of
dacoity and the loss of his property and told them that the dacoits were still busy in their
nefarious activities. After giving this information he accompanied those officers in the
jeep to the place of occurrence. Ram Baran (P W. 3) went away towards his village.
Thakur Prasad Choudhary pointed out to the police officers the place of occurrence as
soon as it became visible in the light flashed by the headlights of the jeep. The jeep
stopped near the place of occurrence and it is alleged that more than eight dacoits were
found present at the spot. The Inspector (P.W 10) ordered the constable to get down and
arrest the dacoits. Pursuant to this order Bansidhar, constable, got down from the jeep
but one of the dacoits aimed a lathi blow at him. When the other occupants of the jeep
tried to get down one of the dacoits fired at them hitting both the Inspector and the SubInspector causing them bleeding injuries. The jeep then drove away towards Monghyr in
order to get the Sub-Inspector and the Inspector (P.Ws. 8 and 10) treated in the
hospital. While passing in front of the police station of Monghyr on their way to the Sadar
Hospital, the Sub-Inspector and the Inspector informed the policemen at the police
station about the dacoity in question near the Telia Talab and said that since they
themselves had sustained injuries at the hands of the dacoits they were on their way to
the hospital The dacoits had apparently disappeared in the meantime and nobody was
caught at the spot. It is not necessary to state any more facts for the purpose of the
present appeal. Suffice it to say that the fate of the entire prosecution case depends on
the evidence regarding the identification of the persons charged So far as the present
appellant is concerned the only evidence against him it that of his identification by
Jadunandan Singh, Inspector of police (P.W. 10). The question, therefore, arises whether
his testimony relating to the identification of the appellant provides evidence which,
according to the settled principles, can be considered sufficient for sustaining his
conviction.

4. Now, according to the High Court it was mentioned in the fard beyan (Ex. I) which is
treated as first information report, that the Inspector (P.W. 10) had identified two dacoits
as belonging to village Banoudha. These two dacoits are Hasib and Ashique Mian, the
conviction of both of whom was upheld by the High Court. Exhibit 1 was the statement
made by S.I. Deo Dutt Prasad Varma (P.W. 8) to the police in the hospital. The exact
words used therein so far as relevant may herein be read:
The Inspector said that among the recognized dacoits he had recognized two dacoits well
that they belonged to Banaudha a nearby village. He did not remember their names. He
also said that the dacoits seemed to belong to the neighbouring villages and almost all of
them were young.
The evidence of P.W. 8 has not been relied upon by the High Court for convicting the
appellant What is relied upon is the statement in Court of P.W. l0 because the High Court
felt that it was corroborated by Ex. 1. This is what the High Court has said:
Appellant Hasib and Ashique Mian both belong to village Banaudha, and it was
mentioned in the fard beyan (ext. 1) that the Inspector (P.W. 10) had identified two
dacoits well as belonging to village Banaudha. This description as to the residence of two
of the dacoits was given before Hasib and Ashique Mian came to be arrested in
connection with this case. Therefore, it is manifest that the evidence of P.W. 10 against
appellant Hasib finds sufficient corroboration from the description of the culprits given in
the fard-ebayan. That being so, I am of the opinion that the evidence of P.W. 10 against
appellant Hasib can be safely acted upon It is true that appellant Hasib had been
remanded to police custody for nearly 48 hours after his production before the Sub
divisional Magistrate on 29-1-1963 But all the while P W. 10 was confined to the Hospital
and as such be could not have the opportunity of seeing this appellant while he was in
police custody. The complicity of this appellant in the crime has thus been established
beyond all reasonable doubts.
Here the High Court appears to have clearly gone wrong in law. The legal position as to
the object, value and use of first information report is well settled. The principal object of
the first information report from the point of view of the informant is to set the criminal
law in motion and from the point of view of the investigating authorities is to obtain
information about the alleged criminal activity so as to be able to take suitable steps for
tracing and bringing to book the guilty party. The first information report, we may point
out, does not constitute substantive evidence though its importance as conveying the
earliest information regarding the occurrence cannot be doubted It can, however, only be
used as a previous statement for the purpose of either corroborating its maker Under
Section 157 of the Indian Evidence Act or for contradicting him Under Section 145 of that
Act. It cannot be used for the purpose of corroborating or contradicting other witnesses.
The High Court was, therefore, in error in seeking corroboration of the testimony of P.W.
10 from the F.I.R. of which he was not the maker. P.W. 10 is said to have later identified
the present appellant in Court, as the person whom he had identified at the second test
identification parade on the first day when he went for identifying the accused persons.
That was on February 14, 1963. This is what he said in Court:
I 'attended' T.I. parade for two days. I 'attended' the (T.I.) parade twice on the first day
and once on the second day. On the first day and at the first time I identified this
accused (points to accused who gives out his name as Akal Jadav').He had opened fire at
the time of occurrence. I identified at the second time this accused (points to accused
who gives out his name as Mohammad Hasib, alias Tabarak). On the second day I
identified this accused (points to one accused who gives out his name as Shekh Quddus,
alias Knudwa).
It is note worthy that in the trial Court the witness did not identify the appellant as one
of the dacoits whom he had seen at the time and place of the occurrence. If that is so

then the question arises if the evidence of the test identification parade can from legal
basis for the appellant's conviction.
5. As observed by this Court in Vaikuntam Chandrappa v. State of Andhra Pradesh
MANU/SC/0224/1959 : AIR1960SC1340 the substantive evidence is the statement of a
witness in Court and the purposes of test identification is to test that evidence, the safe
rule being that the sworn testimony of the witness in Court as to the identity of the
accused who is a stranger to him, as a general rule, requires corroboration in the form of
an earlier identification proceedings. If there is no substantive evidence about the
appellant having been one of the dacoits when P W. 10 saw them on January 28, 1963
then the T.I. parade as against him cannot be of any assistance to the prosecution.
6. But otherwise too the identification proceedings in the present case do not inspire
confidence. It appears that several test identification parades were held for identifying
the accused persons. So far as the present appellant is concerned P.W. 10 appears to
have identified him on February 14, 1963 though the appellant had been arrested as
early as January 29, 1963 at about 4.15 a.m. Now, identification parades are ordinarily
held at the instance of the investigating officer for the purpose of enabling the witnesses
to identify either the properties which are the subject matter of alleged offence or the
persons who are alleged to have been concerned in the offence. Such tests or parades
belong to the investigation stage and they serve to provide the investigating authority
with material to assure themselves if the investigation is proceeding on right lines. It is
accordingly desirable that such test parades are held at the earliest possible opportunity.
Early opportunity to identify also tends to minimize the chances of the memory of the
identifying witnesses fading away by reason of long lapse of time. But much more vital
factor in determining the value of such identification parades is the effectiveness of the
precautions taken by (hose responsible for holding them against the identifying witness
having an opportunity of seeing the persons to be identified by them before they are
paraded with other persons and also against the identifying witnesses being provided by
the investigating authority with other unfair aid or assistance so as to facilitate the
identification of the accused concerned. In the present case the first identification parade
was held on February 6, 1963 when several accused persons were included for
identification in the parade. The present appellant was not included in the parade on that
day. The identification parade with respect to him was held on February 14, 1963, the
reason given for this delay that P.W. 10 was till then in the hospital. According to his own
evidence in the trial Court, however, P.W. 10 admits to have been discharged from the
hospital on February 9, 1963 In his statement before the committing magistrate (which
was read as evidence by the trial Court Under Section 288, Cr.P.C. ) he had stated that
he had come out of the hospital 7 or 8 days after his admission. It may be recalled that
he was out of the hospital on Februarys, 1963. But even if he was discharged on
February 9, 1963 it is wrong to say that the test identification parade could not be held
before February 14, 1963 by reason of P.W. 10 being in the hospital till then. But this
apart, it is not shown that this witness even though in the hospital for treatment of his
injuries to his hand and face was not in a position to be taken from the hospital for
identification as soon as the appellant was arrested or at least on February 6, 1963 when
identification of a number of accused persons was held. We are also not satisfied about
the fairness of the identification proceedings. It may be recalled that the first
identification parade was held on February 6, 1963. Ft. however, appears that because
the result of this parade was not considered satisfactory by the investigating agency an
application was made to the Court of the magistrate stating that the identifying
witnesses had got confused and, therefore, a fresh test identification parade should be
held. Thereafter several identification parades were held on 14, 21st and 28th February,
1963. This procedure only serves to give rise to grave suspicion about the bona fides of
the investigating agency. And then we find from the evidence of Jhari Lal Mahto, Sub
Deputy Magistrate (P.W. 13) who had held the T.I. parade on February 14, 1963 that two
identification parades were held on that day within half an hour of each other one at 5

p.m. and the other at 5.30 p.m. At both these parades P.W. 10 was present. In the first
parade the appellant is stated not to have been included in the suspects to be identified.
No reason is shown for his non-inclusion in that parade. It may be recalled that both the
parades were held in the sub-jail in which all the accused persons were lodged. The
evidence of P W. 13 is also somewhat unsatisfactory and we are far from impressed by
his testimony with respect to the precautions taken by him for fair test identification
parades. In his cross-examination a suggestion was thrown that there was some kind of
interpolation in his report of the first T.I. parade held at 5 p.m. from which it could be
suspected that the appellant was present in that parade but was not identified by P.W.
10, Whether or not the appellant was included in the suspects to be identified at 5 p.m.
in either case we are unable to attach much value to his identification parade.
7. The High Court has in its judgment accepted the argument raised on behalf of the
accused that they were produced in Court on February 13, 1963, and has expressed its
opinion that the possibility of P.W. 8 & P.W.10 seeing the accused persons in Court could
not be entirely eliminated. This circumstance, in our view, further weakens the value of
the appellant's identification held on February 14, 1963.
8. There is, however, also another aspect which requires to be noticed. Now, if P.W. 10
had recognised the appellant at the time and place of the occurrence as one of the two
dacoits hailing from village Banaudha then clearly the identification test of the appellant
by this witness can be of little value because the accused was already known to the
witness. In that event there is no question of the identification parade dated February
14, 1963 being used as corroborative evidence supporting his identification in Court. As
a result of the foregoing discussion we find that there is no legal evidence connecting the
appellant with the alleged offence in question and we have, therefore, no hesitation in
acquitting him.
9. We accordingly allow the appeal and acquit the appellant.