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1968 DIGILAW 327 (ALL)

Ali Sher v. State

1968-08-29

B.B.MISRA, H.C.P.TRIPATHI

body1968
JUDGMENT H.C.P. Tripathi, J. - Applicant Ali Sher was charged before a Magistrate First Class, Moradabad, for having heaped abuses on India and extolled Pakistan in the context of the then India-Pakistan war and thereby committing a prejudicial act within the meaning of Rule 35(6)(e) of the Defence of India Rules, 1962. He was found guilty, convicted and sentenced by the trial Magistrate to nine months' rigorous imprisonment Under Rule 41(5) of the aforesaid rules. On appeal the learned Civil and Sessions Judge, Moradabad, upheld the conviction of the Applicant but substituted the sentence of imprisonment with a fine of Rs. 300/- in default of which he was directed to undergo rigorous imprisonment for six months. 2. Applicant came up in revision which was first listed before a learned single Judge of this Court who referred it for the consideration of a larger Bench. This is how the case has come up before us. 3. Learned Counsel for the Applicant has raised several contentions in support of this revision. It is urged that as the facts constituting the alleged contravention of the rules have not been specifically mentioned in the charge sheet submitted by the police the cognizance was barred by Rule 154 of the Defence of India Rules. In support of this contention reliance was placed on a number of single Judge decisions of this Court reported in 1946 AWR (HC) 439, AIR 1949 Oudh 66, 1949 ALJ 541 and 1964 AWR 573. One of these decisions reported in 1964 AWR 573 has been rendered by one of us. 4. The other argument raised by the Learned Counsel is that the Applicant is alleged to have used abusive language in respect of India and not towards the Government established by law in India. It cannot, therefore, be held that he committed any prejudicial act within the meaning of Rule 35(6)(e) of the aforesaid rules even if it is held, for which it is contended there is no justification, that the aforesaid abusive language was capable of bringing into hatred or contempt the country as a whole. It is urged further that the words of a statute are to be given their ordinary dictionary meaning and a penal provision has to be construed strictly. In support of this proposition reliance was placed by the Learned Counsel on the case of London Rubber Company v. Durex Products Incorporated and Anr. It is urged further that the words of a statute are to be given their ordinary dictionary meaning and a penal provision has to be construed strictly. In support of this proposition reliance was placed by the Learned Counsel on the case of London Rubber Company v. Durex Products Incorporated and Anr. 1963 SC 1882 and on the cases of M.V. Joshi v. M.V. Shimpi 1961 SC 1494 and Niharendu v. Emperor 1942 FC 22. In this light Learned Counsel contends the abusive language used by the Applicant in respect of India does not fall within the terms of Rule 35 of the Defence of India Rules and the conviction and sentence of the Applicant are not sustainable in law. Learned Counsel has also challenged the findings of fact arrived at by the courts below that the Applicant did utter the words attributed to him. 5. We are not prepared to interfere with the concurrent findings of fact arrived at by the courts below that the Applicant did use abusive language in respect of the country as alleged by the prosecution because we are satisfied that the aforesaid finding is based on a reasonable appreciation of evidence. 6. There is no dispute with the proposition that the words of a statute are ordinarily to be given their dictionary meaning unless it leads to an absurdity and if the penal provisions are reasonably capable of two interpretations one which is favourable to the accused has to be preferred. 7. Rule 154 of the Defence of India Rules inter alia provides: 154. Cognizance of contravention of Rules, etc.-- (1) No Court or Tribunal shall take cognizance of any alleged contravention of these Rules, or of any order made thereunder, except on a report in writing of the facts constituting such contravention, made by a public servant. In terms of this rule, therefore, it is incumbent on a court before it takes cognizance to see that the allegations made by a public servant clearly mention that the Applicant used filthy abuses against the country which amounted to an offence Under Rule 35(6)(e) read with Rule 41 of the Defence of India Rules. In terms of this rule, therefore, it is incumbent on a court before it takes cognizance to see that the allegations made by a public servant clearly mention that the Applicant used filthy abuses against the country which amounted to an offence Under Rule 35(6)(e) read with Rule 41 of the Defence of India Rules. It is true that the exact words in which the Applicant was alleged to have heaped filthy abuses on India were not mentioned in the report for the sake of decency but the fact that such abuses constituted an offence within the meaning of Rule 35(6)(e) read with Rule 41 of the Defence of India Rules was clearly mentioned which could have given a clear notice to the Applicant as to the charge which he was required to meet before the court. An offence under the Defence of India Rules is a cognizable offence. Accordingly the case was investigated and the witnesses who have been relied upon by the court did give out the exact words alleged to have been used by the Applicant while abusing the country. Applicant, therefore, knew even before he was called upon by the court to give his version as to what was the allegation against him. In these circumstances we are of opinion that the requirements of Rule 154(1) have been complied with and the courts were competent to take cognizance of the case. 8. According to the prosecution on 14-9-1965 when India and Pakistan were at war the Applicant in the context of, that war heaped filthy abuses on India whose import was to extol the performances of Pakistan on the battle field and decry that of India. The actual words attributed to him are: 1. Hindustan ne Pakistan ke munh men apni jhante ukhar kar ghuser din. 2. Aur tumse bhi jitni ukhari jae wuh ukher lo. 3. Aur kaho to main abhi tumhare munh men ghuser don. There can be no doubt, therefore that when the Applicant used these words in respect of India he wanted to show that the Indian forces were being badly defeated by the Pakistan army at the battlefield. The question arises, therefore, that did the Applicant mean when the said that India was being vanquished by Pakistan and whether thereby the committed any prejudicial act within the meaning, of Rule 35(6)(e) of the Defence of India Rules. 10. The question arises, therefore, that did the Applicant mean when the said that India was being vanquished by Pakistan and whether thereby the committed any prejudicial act within the meaning, of Rule 35(6)(e) of the Defence of India Rules. 10. Article 1 of the Constitution of India efines India as a Union of States. Article 12 of the Constitution provide that "the State" includes the Government and Parliament of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of Government of India. It is, therefore, obvious that India includes the Government of India established by law within the meaning of Rule 35(6)(e) of the Defence of India Rules and when the Applicant showered abuses on India in the context of India-Pakistan war he had no other intention but to bring the country and the Government established by law as well is the Indian army into hatred or contempt by extolling the performance of the enemy and decrying the performance' of his country at the battle field. We are, therefore, satisfied that the prejudicial act committed by the Applicant falls within the purview of not only Sub-clause (e) but also (f) of Rule 35(6) of the Defence of India Rules. There can be no doubt, therefore, that his act is a prejudicial act within the meaning of Sub-clause (e) of Rule 35 which is punishable Under Rule 41. 11. In this view of the Matter we uphold the conviction and sentence of the Applicant as recorded by the Sessions Judge and dismiss his revision. The stay order is discharged.