minal Appeal No 197 of 1972
Appeal by special leave from the judgment and order date 24th day of February 1972 of the Delhi High Court in Cr
Rev No 469 of 1970
section C Agarwala and A K Gupta for the appellant
D P Bhandari and R N Sachthey for the respondent
The Judgment of the Court was delivered by DUA J
This appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court of Delhi dated February 24 1972 rejecting the appellant  revision petition under sections 430 and 561 A of the Code of Criminal Procedure
In that revision he had prayed that the charge framed
against him by a Magistrate First Class New Delhi on July 3 1969 under section 9 of the Punjab Security of State Act Punjab Act No 12 1953 hereinafter called the Act be quashed
The special leave petition originally came up for preliminary hearing before a bench of this Court on August 18 1972 when notice to show cause was issued
On September 19 1972 the hearing was again adjourned for a week to enable the petitioner s counsel to file  a writ petition
It appears that no writ petition was filed but on September 26 1972 this Court granted special leave on usual terms
The appeal was also directed to be heard on the existing paper book with liberty to the parties to file such additional documents as they wished to file from the record
The appeal was directed to be listed for hearing in the second week of January 1973
Sometime in January 1973 the appellant presented criminal miscellaneous petition No 32 of 1973 seeking permission to urge additional grounds
In that application the constitutional  Validity of section 9 of the Act was questioned
The said section according to the averment in that Petition infringes the fundamental
 right of speech
guaranteed under article 191 a of the Constitution
It is alleged by the prosecution that the appeal ant had addressed a public meeting of the employees of the Defence Department on 535 October 91968 and in the course of his speech he had incited the said employees to commit offences prejudicial to the security of the State or to the maintenance of public order
The Magistrate had on perusal of the documents filed under section 1973 Cr
PC framed a charge against the appellant punishable under section 9 of the Act
According to the judgment of the High Court the offending portion of the speech which had been delivered in Hindi reads as follows  There will be hunger strike at Chavan Sahib s kothi No 1 Race Course Road
If Chavan Sahib thinks that they will be in position to crush us with the assistance of CRP and BSF then that is his misunderstanding
Chavan Sahib when the Britishers had to leave this country then the same military and police will push you out
Because these children of military and
police personnels are also hungry they also require bread for eating
Therefore the day has to come when after their unity these workers will send you out
Comrades the Government suffered the moral death when it promulgated the ordinance
Because we had no idea of starting any violance when we demanded bread clothes and house
This struggle of ours will continue
If Government servants die then other labourers
will take this struggle ahead
One thing more I want to tell you that if there will be no celebration of Diwali in the house of our fifty thousand people then there shall be darkness in the houses of these ministers
I want to tell you Chavan Sahib that if your repression continued in the same way one Udham Singh will be born amongst these labourers who will not live you live as Udham Singh killed Dyre after going to London
Annexures I and II attached to the petition under article 136 of the Constitution stated in para 4 thereof to be the English translation of the statements of the two police officers on the basis of which
the charge sheet had been filed in court contained a couple of more  sentences which do appear to be of some importance
But we consider it unnecessary for our present purposes to refer to them
The High Court considered the part of the speech reproduced above and after referring to the decisions of this Court in State of Bihar vs Shrimati Shailbala Devi1 Rain Manohar Lohia vs State of Bihar  2  and Sudhir Kumar Saha vs The Commissioner of Police3 dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence under section 9 of the Act
It was however added that it was open to the petitioner either by cross examination of the prosecution 1 AIR 1952 SC 320
2  3  536 witnesses or by adducing evidence in defence to show that in the circumstances under which these remarks were made they did not amount to an incitement to an offence prejudicial to the security of the State or the maintenance of public order
The High Court felt that at that stage it could not be saidthat there was no prima facie case against the petitioner under section 9 of the Act
In this Court Shri section C Agarwal questioned the vires of section 9 of the Act contending that this section is violative of the fundamental right guaranteed by article 1 0  1  a of the Constitution
No doubt this point was not raised in the High Court and in this Court also it was specifically sought to be raised only in the subsequent applications presented in January 1973 but as the speech in question was itself sought in para 5 of the petition for special leave to be protected by article 191 a and as it was a pure question of law raising the constitutionality of section 9 of the Act we permitted the counsel to raise it
Section 9 of the Act reads 9
Dissemination of rumours etc
Whoever a makes any speech or b by words whether spoken or written or by signs or by visible or audible representations or otherwise publishes any statement rumour or report shall if such speech statement rumour or report undermines the security of the State friendly relations with foreign States public order decency or morality or amounts to contempt of Court defamation or incitement to an offence prejudicial to the security of the State or the maintenance of public order or tends to overthrow the State be punishable with imprisonment which may extend to three years or with fine or with both This section on its own plain reading taken within its fold all the objectionable matters which had been taken by sub article 2 of article 19 out of the guaranteed freedom of speech and expression Protected by cl
a of article 191
In order to fully understand the freedom of speech and expression guaranteed by the Constitution it is necessary to reproduce article 19 1 a and 2 Right to Freedom 191 AR 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 537 State from making any law in so far as such law imposes reasonable restriction 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
It may appropriately be pointed out here that sub article
2 was amended in 1963 so as to include in the limitation contained therein reasonable restrictions in the interest of the sovereignty and integrity of India
This limitation was not in this sub Article in 1953 but as it does not affect the question raised in this case we need say nothing more about it
Reading section 9 of the Act and article 192 of the Constitution it is obvious that the only matter specifically contained in section 9 in addition to those stated in article 192 relate to the offending speech words or other publications which tends to overthrow the State
Now this matter would clearly also fall within the sweep of the expression incitement to an offence prejudicial to the security of the State contained in section 9 and within article
192 where it speaks of reasonable restrictions  in the interest of the security of the State
Anything tending to overthrow the State must necessarily be prejudicial to the security of the State and therefore a law can be made placing reasonable restrictions on the right of freedom of speech and expression in this respect in the interests of security of State
Prima facie therefore section 9 clearly falls within the express language of article 192
On behalf of the appellant great stress was laid on Superintendent of Central Jail Fatehgarh vs Ram Manohar Lohia1 where this Court struck down as unconstitutional section 3 of the UP Special Powers Act UP Act 14 of 1932
That section reads 3
Whoever by word either spoken or written or by signs or by visible representations or otherwise instigates expressly or by implication any person or class of persons not to pay or to defer payment of any liability and whoever does any act with intent or knowing it to be likely that any words signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons in any manner whatsoever shall be punishable with imprisonment which may extend to six months or with fine extending to Rs 250 or with both
 On the face of its plain language this section is materially different from section 9 of the Act
It therefore does not require
elaborate argu 1 538 ment for distinguishing this decision
Section 3 of the UP Act is clearly hit by
article 19 1 a and can on no reasonable or rational argument be saved by article 192
There being absolutely no similarity between that section and section 9 of the Act with which we are concerned the ratio of that decision cannot serve as a precedent for invalidating section 9 of the Act
The appellant s learned counsel then drew our attention to Kedarnath Singh vs State of Bihar 1 in which sections 12A and 505 IPC were held to be in the interest of public order and within the ambit of constitutional limitations contemplated by article 19  1 read with article 19 2
On analogy of section 124A as construed in than decision it was contended that in order to bring section 9 of the Act within the constitutional limits of article 19 2 it must similarly be construed narrowly so that the fundamental freedom of speech and expression is not unduly restricted
The operation of section 9 of the Act it was sub mitted should be limited only to such matters as involve incitement to violence
or intention or tendency to create public disorder or cause disturbance of public peace
The fundamental right guaranteed by article 19 1 a and the interest of public order protected by article 19 2 according to Shri Agarwal s submission must be properly adjusted and a correct balance struck between two
In our opinion the principle governing the construction of article 19  1  A read with article 19 2 is well crystallised by now in various decisions of this Court and it is unnecessary to cover the whole round over again by going through them extensively
We of course agree with Shri Agarwal that the fundamental right guaranteed by article 191 a and the interest of public protected by article 792 must be
properly adjusted and reasonable balance struck between the two
There can be no dispute that there is no such thing as absolute of unrestricted freedom of speech and expression wholly free from restraint for that would amount to uncontrolled licence which would tend to lead to disorder and anarchy
The right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in our Republic
Our governmental set up being elected limited and responsible we need requisite freedom of animadversion for our social interest ordinarily demands free propagation of views
Freedom to think as one likes and to speak as one thinks are as a rule indispensable to the discovery and spread of truth add without free speech discussion may well be futile
But at the same time we can only ignore at our peril the vital importance of our social interest in inter alia public order and security of our State
It is for this reason that our Constitution has rightly attempted to strike a proper balance between the various competing social in 1 1966 Supp 2 SCR 769
539 terests
It has permitted
imposition of reasonable restrictions on the citizen s right of freedom of speech and expression in the interest of inter alia public order security of State decency or morality and impartial justice to serve the larger collective interest of the nation as a whole
Reasonable restriction in respect of matters specified in article 192 are essential for integrated development on egalitarian progressive lines of any peace loving  civilised society
Article 192 thus saves the constitutional validity of 9 of the Act
The analogy between section 124A IPC and section 9 of the Act is wholly misconceived and in view of the comprehensive of article 192 we are unable to restrict section 9 of the Act only to those speeches and Expressions which
incite or tend to incite Violence
Learned counsel also tried to refer us to some American decisions for developing the argument that the guaranteed freedom of speech and expression should be broadly construed but we did not consider it necessary to go into the American decisions notwithstanding the fact that in Express Newspapers P Ltd vs Union of India1 it was observed that American decisions were relevant for the purpose of understanding the scope of article 19 1 a
In our opinion it is hardly fruitful to refer to the American decisions particularly when this Court has more than once clearly enunciated scope and effect of article 19 1 a and 19 2
The test of reasonableness of the restriction has to be considered in each case in the light of the nature of the right infringed the purpose of the restriction the extent and the nature of the mischief required to be suppressed and the prevailing social and other conditions at the time
There can be no abstract standard or general pattern of reasonableness
Our Constitution provides reasonably precise general guidance in this matter
It would thus be misleading to construe it in the light of American decisions given in different context
Section 9 of the Act is in our view plainly within the legislative competence of the Punjab Legislature and it would be for the court in which the appellant is being tried to decide as to how far the appellant s speech is covered by this section
Shri Agarwal made a strenuous effort to persuade us to cons true the offending portion of the speech as reproduced in the judgment of the High Court and express our opinion whether or not the charge against him has been lawfully framed
The charge reads as under  That you on or about the 9th day of October 1968 at 430 to 555 pm near the Railway Pathak in the area of Delhi Cantt
made a speech at a public meeting organised by Delhi Defence employees in which you 1 540 demanded or caused incitement to an offence prejudicial to the security of the State or the maintenance of public order and therein committed an offence punishable I under section 9 of the PS Act and within my cognizance
 The appellant it may be pointed out had approached the sessions Court on revision to have this charge quashed
That court apparently did not agree with the appellant
He then approached the High Court on revision where also he failed
The impugned judgment of the High Court does not show any serious legal infirmity resulting in failure of justice which should induce this Court to interfere under article 136 of the Constitution
The submission thatat this Court has already granted special leave we must decide the question of the legality of the charge on the merits has not appealed to us
Even at the final hearing of an appeal by special leave this Court has to apply the same test which is attracted at the preliminary stage when the leave to appeal is asked for
After leave the scope of the appeal is not enlarged and even at that stage the appellant cannot as of right claim adjudication on the merits if this Court feels that there is no grave injustice done to the appellant as a result of any serious legal infirmity
We are unable find any such infirmity in the impugned judgment
The additional factor against our interference in this case in the interlocutory character of the order sought to be quashed
We have however no doubt that the learned Magistrate trying the appellant s case will deal with all the points raised before him oil the merits without being influenced by the tentative view expressed by the High Court which the appellant himself invited
We also hope that this case which relates to a speech said to have been delivered in October 1968 and in which the prosecution was initiated as far back as January 1969 when the charge was put into court would be disposed of with due dispatch and without avoidable delay
This appeal fails and is dismissed
SBW Appeal dismissed


Summary:
The appellant was prosecuted under section 9 of the Maintenance of Punjab Security of State Act for addressing a public meeting in which it was alleged that he had incited the defence employees to commit offences prejudicial to security of the
State or to the maintenance of public order
Sec 9 of the Act prohibits speeches or statements etc
which have effect of undermining the security of the
State friendly relations with foreign States public order decency or morality or which amount to contempt of court defamation or
incitement to an offence prejudicial to the security of the State or the maintenance of public order or which tends to over throw the State
On perusal of the documents filed section 173 of the Cr
PC the Magistrate cam to the conclusion that the prima facie case was established
The appellant unsuccessfully challenged the said interlocutory order before the Sessions Court and then in the High Court
On appeal by special leave the appellant raised the question
of constitutional validity of Sec 9 of the Act
The appellant contended  i that Sec 9 of the Punjab Security of State Act was violative of the fundamental right guaranteed under article 191 a of the Constitution and ii in the alternative the operation of Sec 9 should be limited only to such matters as involve incitement to violence or intention or tendency to create public disorder or cause disturbance to public peace
In dismissing the appeal
HELD  i Except the words tends to over throw the State the rest of the provisions of Section 9 reproduce the provisions of article 192 of the Constitution
The prohibition relating to offending speech wods or the other publications which tend to over throw the State clearly fall within the sweep of the expression incitement to an offence prejudicial to the security of the State
Restriction therefore is
Prima facie reasonable restriction
537 C E Superintendent of Central fail Fatehgarh vs Ram Manohar Lohia  distinguished on facts
ii Reasonable restrictions in respect of matters specified in article 192 are essential for integrated development on egalitarian
progressive lines of any peace loving civilised society
article 192 thus saves the constitutional validity of Sec 9 of the Act
The analogy between s1241IPC and Sec
9 of the Act is wholly misconceived and in view of the comprehensive sweep of article 192
Sec 9 of the Act cannot be restricted to those speeches and expressions which incite or tend to incite violence only
Sec 9 cannot be interpreted in a restricted L 761 SupCI73 534 manner Sec
1241IPC was interpreted in Kedarnath Singh vs State of Bihar 1966 Supp 2 SCR 7691 539 A C iii The Supreme Court may allow the question of law effecting the constitutional validity of an Act for the first time to be raised in Supreme Court
In an appeal by special leave under article 136 of the Constitution the scope of the appeal is not enlarged after leave and the appellant cannot as of right claim adjudication on merits
The Court would not pronounce its opinion on the merits of the charge framed against the appellant
540 C E