Dalbir Singh & Ors Vs. The State
Of Punjab [1962] INSC 44 (6 February 1962)
06/02/1962 AYYANGAR, N.
RAJAGOPALA AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.(CJ) SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1962 AIR 1106 1962 SCR Supl. (3) 25
CITATOR INFO:
D 1982 SC1413 (16)
ACT:
Police Force-Breach of discipline-Law
providing for penalty for such breach Validity Pepsu Police (Incitement to
disaffection) Act, 1953 (Pepsu 1 of 1958), s. 3-Constitution of India, Art. 19(1)(a),19(2), 33.
HEADNOTE:
Section 3 of the Pepsu Police (Incitement to
disaffection) Act 1953, provided: "Whoever intentionally causes or
attempts to cause, or does any act which he knows is likely to cause,
disaffection towards any Government established by law in India amongst the
members of a police 'force, or induces or attempts to induce, 'or does any act,
which he knows is likely to induce, any member of a police force to withhold
his services or to commit a breach of discipline shall be punishable with
imprisonment. . . . " After the administration of the State of Pepsu was taken over by the President under Art. 356 of the Constitution of India,
Parliament enacted a law by which the power of the legislature of the State of Pepsu was conferred on the President. By virtue of this power the President enacted the
Pepsu Police (Incitement to Disaffection) Act, 1953, the object of which was to
provide a penalty, inter alia, for spreading disaffection among the police. The
appellants were charged with having induced or attempted to induce members of
the police force to withhold their, services and thus to commit a breach of
discipline by staying away without doing their duty, and thereby havingcommitted
an offence under s. 3 of the Act. They were convicted by the Magistrate and the
conviction was confirmed by the High Court. The appellants challenged the
validity of the conviction on the ground that s. 3 was violative of the freedom
guaranteed by Art. 19(1)(a) of the Constitution and was not saved by Art.
19(2).
Held, that s. 3 of the Pepsu Police
(Incitement to disaffection) Act, 1953, did not infringe Art.' (19)(1)(a) of
the Constitution and was intra vires.
The Police service is an arm of the State
charged with the duty of ensuring and maintaining public order and since any
breach of discipline on the part of its members might 26 result in a threat to
public order, s. 3 must be held to be valid as having been enacted "in the
interests of public order" within the meaning of Art. 19(2).
Superintendent, Central Prison, Fatehgarh v.
Ram Manohar Lohia, [1960] 2 S. C. R. 821, relied on.
Held, further, that Art. 33 of the
Constitution was not ;applicable because Parliament had delegated the powers of
the legislature of the State to the President and any law enacted by him would
not have the force of Parliamentary legislation contemplated by Art. 33. .
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 102 of 1960.
Appeal by special leave from the judgment and
order dated October 7, 1959, of the Punjab High Court in Criminal Revision No.
610 of 1959.
Hardev Singh and Y. Kumar, for the
appellants.
S. M. Sikri, Advocate-General for the State
of Punjab, N. S. Bindra and P. D. Menon, for the respondent.
1962. February 6. The Judgment of the Court
was delivered by AYYANGAR,T.-This appeal by special leave against the decision
of the High Court of Punjab raises for consideration principally the
constitutional validity of s. 3 of the Pepsu Police 'Incitement to
disaffection) Act (Act 1 of 1953), which will be referred to hereafter as the
impugned Act.
The four appellants were at one time members
of the Pepsu Police force and were charged, before the First Class Magistrate
at Faridkot, with having committed three offenses : (1) under s. 26 of the
PepsU Public Safety Ordinance (No. 7 of Samvat 2006), (2) under s. 33 of the
said Ordinance, and (3) under s. 1 of the impugned Act. We shall be referring
to the provisions of the relevant enactments in due course. The accused pleaded
not guilty and were tried by the learned Magistrate who by his judgment dated
August 28, 1958, held the 27 prosecution case fully established against all the
accused.
He convicted the four appellants under s. 26
of the Public Safety Ordinance and sentenced them to imprisonment for six
months. The third appellant alone Was convicted of the offence under a. 33 of
the same Ordinance and was sentenced to imprisonment for six months. Appellants
1, 2 and 4 were further convicted of offenses under s. 3 of the impugned Act
and sentenced, to imprisonment for six months, the several sentences against
the respective accused being directed to run concurrently. The appellants filed
an appeal to the Sessions Judge at Bhatinda who upheld the convictions but
reduced the sentences. In respect of the offence under s. 26 of the Public
Safety Ordinance the sentence passed against the four appellants was reduced to
imprisonment for three months while in respect of the third accused who had
been addition ally sentenced under s. 33 of the Ordinance the same was reduced
to imprisonment for 11 /2 months and the sentences on appellants 1, 2 and 4
under s. 3 of the impugned Act was reduced to imprisonment for three months,
the sentences again being directed to run concurrently.
With these modifications the appeals stood
dismissed. The appellants thereafter preferred a revision to the, High Court
and this was heard by a learned Single Judge who while accepting the revision
of the appellants in so far as it related to their conviction and sentence
under s. 26 of the Ordinance. maintained the other convictions and sentences
but reduced the sentences. It is from this judgment of the High Court that this
appeal has been preferred by the four appellants.
It would be seen from the above narrative
that the appeal is concerned with the propriety of the conviction of appellants
1, 2 and 4 of an offence under a. 3 of the impugned Act and of the third
appellant under s. 33 of the Ordinance, all the appellants having been
acquitted by the High Court of the charge against them under s, 26 of the 28
Ordinance. It is therefore not necessary to refer to the terms of s. 26 or the
offence constituted by it. In the Courts below including the High Court no
challenge was made as regards the legality of any of the provisions of law of
the violation of which the appellants were found guilty but before us though
learned Counsel did not raise any contention regarding the validity of s. 33 of
the Pepsu Public Safety Ordinance, challenged the constitutionality of s. 3 of
the impugned Pepsu Police (Incitement to disaffection) Act which appellants 1,
2 and 4 were found to have violated and for which they were sentenced to a term
of imprisonment.
Learned Counsel for the appellants raised for
our consideration three points : (1) the constitutional validity of s.3 of the
impugned Act, (2) if s. 3 were constitutional and valid whether appellants 1, 2
and 4 were proved to have been guilty of an offence for violating that
provision, and (3) whether appellant 3 was property held guilty of an offence
under s. 33 of the Pepsu Public Safety Ordinance.
We shall first take up for consideration the
attack on the validity of s. 3 of the impugned Act. Patiala and East PunjabState
Union, commonly called Pepsu was one of the States specified in Part B of the
First Schedule to the Constitution when the Constitution was brought into force
in January 1950. For reasons not necessary to be stated here, the
administration of Pepsu was taken over by the President under Art. 356 of the
Constitution. The powers of the State Legislature were declared by the
Presidential Proclamation issued on March 4, 1953. to be "exercisable by
or under the authority of Parliament" (vide Art. 356(1)(b) ). Thereafter
Parliament enacted Act XXII of 1953 which received the assent of the President
on May 17, 1953, which was entitled : "The Patiala and East Punjab States
Union Legislature (Delegation of Powers) Act, 1953." Section 3 of this
enactment provided 29 "The power of the legislature of the State of
Patiala and East Punjab States Union to make laws which has been declared by
the proclamation to be exercisable by or under the authority of the Parliament
is hereby conferred on the President." There are other provisions which
are contained in the other subsections of s. 3 but these have no relevance for
this appeal. In exercise of the power thus delegated to him by Parliament the
President enacted Pepsu Act 1 of 1953 whose long title runs :
"An Act to provide a penalty for
spreading disaffection among the police and for kindred offenses." It is
the 3rd section of this enactment whose validity is challenged in this appeal
and that reads "3. Penalty for causing disaffection, etc. Whoever intentionally
causes or attempts to cause, or does any act which he knows is likely to cause,
disaffection towards any Government established by law in India amongst the
members of a police force, or induces or;
attempts to induce, or does any act which he
knows is likely to induce, any member of a police force to withhold his
services or to commit a breach of discipline shall be punishable with
imprisonment which may extend to six months, or with fine, or with both. "
The attack upon the validity of this provision was rested on its being
violative of the freedom guaranteed by Art.
19(1)(a), the submission being that the section
was Dot saved by Art. 19(2).
Before considering the arguments advanced it
is necessary to mention, for being put aside, that in construing the validity
of s. 3 of the impugned Act 30 the provision contained in Art. 33 of the
Constitution has no relevance. That Article enacts :
"Art. 33. Parliament may by law
determine to what extent any of the rights conferred by this Part, shall in
their application to the members of the Armed Forces or the Forces charged with
the maintenance of public order, be restricted or abrogated so as to ensure the
proper discharge of their duties and the maintenance of discipline among
them." No doubt, the impugned provision is concerned with ensuring
discipline among the forces charged with the maintenance of public order but as
the powers of the President were exercised by virtue of the delegation
contained in s. 3 of Act XXII of 1953 under which only the powers of the State
Legislature were vested in him, any law enacted by him would not have the force
of Parliamentary legislation contemplated by Art. 33.
Article'33 being out of the way the very
short question that has to be considered is whether the impugned provision is
saved by Art'. 19(2), for 'it is common ground that provision does not violate
any freedom other than that of ""free speech and expression"
guaranteed by Art. 19 (1) (a).
Article 19(2) as it stands after the
amendment by the Constitution (First Amendment) Act of 1951 reads :
" 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, 'in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub-clause 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 to an offence." of the criteria set out in this clause the one
relevant 31 in the present context is that which refers to "in the
interests of............ public order". The contention urged by learned
Counsel was that s. 3 was too wide in that it embraced within itself not merely
matters which might have relevance to circumstances intimately connected with
the maintenance of public order, but also those whose connection with it might
be remote or fanciful. While not seriously disputing that seducing the loyalty
of the police force, or inducing the. members thereof not to do their duty
might imperil public order and so fall within the limit of restrictions permissible
of imposition under Art. 19(2), learned Counsel laid, stress on the fact that
the impugned section made it an offence to induce a member of the police force
to "commit a breach of discipline," laying special emphasis on the
fact that the words "breach of discipline" besides being vague, might
include within itself acts which might be innocent as well as others of varying
degrees of culpability.
The content of the expression "in the
interests of............ public order" has been the subject of detailed
and elaborate consideration by this Court in Superintendent, Central Prison,
Fatehgarh v. Ram Manohar Lohia (1) where the effect of the First (Constitution)
Amendment by which the words "for the maintenance of public order"
were replaced by the words ",in the interests of public order" was
considered in the light of the previous decisions of this Court on that topic,
Subba Rao, J., speaking for this Court said that the expression "Public
order" in the juxtaposition of the different grounds set out in Art. 19(2)
was synonymous with "public peace, safety and tranquility". He also
pointed out that the expression ,in the interests of public order" though
undoubtedly wider than the previous phrasing ",for the maintenance of
public order" could not mean that the existence of any remote or fanciful
connection between the impugned act (1) [1960] 2 S.C.R. 821.
32 and public order was sufficient to sustain
the validity of the law, but that on the other hand, the connection between the
act prohibited or penalised and public order should be intimate; in other words
there should be a reasonable and rational relation between it and the object
sought to be achieved, viz., public order. The nexus should thus be
proximate-not far-fetched, problematical or too remote in the chain of its
relation with public order.
Keeping this exposition in mind. the question
to be considered is whether the connection between what is prohibited or
penalised by the impugned provision and public order, i.e., the ensuring of
tranquility and orderly life is so remote or fanciful as to lead to an
inference that there is no proximate connection between the two. We have no
hesitation in answering this question against the appellants. The impugned
enactment seeks to lay an embargo on certain activities in the interests of the
Police service which is the arm of the State barged with the duty of ensuring
and maintaining public order. The efficiency of that service and its utility in
achieving the purpose for which it is formed aid exists is sought to be secured
by penalising attempts to undermine its loyalty and dissuade the members of
that force from performing their functions and being available to the State as
a disciplined body, Any breach in the discipline by its members must
necessarily be reflected in a threat to public order and tranquility. If the
police force itself were in disciplined they could hardly serve as instruments
for the maintenance of public order or function properly as the machinery
through which order could be maintained among the general public. As we have
pointed out earlier, learned Counsel did not seriously contest that the
impugned provision in so far as it penalised the creation of disaffection among
members of the police force or the incitement of the members of the police
force to withhold their services from the government could properly be
sustained as enacted 33 ",'in the interests of public order," We
consider that attempts to induce indiscipline among the police do not stand on
any different footing. We do not further consider well-founded the submission
of learned Counsel that the word "discipline" or the .Phrase
"breach of discipline" is vague.
We have therefore no hesitation in rejecting
this challenge to the validity of a. 3 of the impugned Act.
The next question that was urged by learned
Counsel was that the High Court was wrong in considering that the three
appellants 1, 2 and 4 were guilty of any contravention of s.
3 of the Act. We do not consider that this
submission is justified. It is needless to point out that in considering an
appeal which comes before us by special leave this Court normally accepts as
final every finding of fact reached by the High Court as well as its
appreciation of oral testimony and that if there is evidence which could serve
as a basic for any finding reached by the High Court the same cannot be
canvassed before us. If the submission of learned Counsel is viewed in the
light of this principle it appears to us that there is hardly any scope for
argument as regards what might be termed the merits of the case. One of the
"witnesses whose evidence has been accepted by the Courts below and which
is referred to in the judgment of the learned Judge in the High Court was
Krishan Dayal P.W. 4 who deposed to the accused saying ",Police brothers,
come and join us, stop the office work; we will sit herein dharma, start hunger
strike............ and would not allow the office work to run." It is
clear from this evidence that the accused had induced or had attempted to
induce members of the police force to withhold their services as also to commit
a breach of discipline by staying away without doing their duty. In our
opinion, it is not shown that the conviction of appellants 1, 2 and 4 of an
offence under s. 3 of Act 1 of 1953 was improper or illegal.
34 The last of the points arising in the
appeal is as regards the conviction of Lal Singh the third appellant-.of an
offence under, s. 33 of the Ordinance. Section 33 of the Ordinance runs :
,"Whoever induces or attempts: to induce
any public servant or any servant of local authority to disregard or fail in
his duties as such servant shall be punishable with imprisonment which may
extend to one year or with fine or with both." As regards this appellant
this is what the learned Judge of the High Court stated :
"As againat Lal Singh there is evidence
of P.'W. 11 Kartar Singh and P.W. 18 Balwant Singh, Foot-Constable that he
asked them to disobey their officers and should give up government work. His
offence under s. 33 of the Ordinance is substantiated." As we have pointed
out earlier, the validity of a. 33 of the Ordinance was not challenged and the
only question therefore was whether the third appellant was properly held
guilty of the offence. It was not disputed that the two prosecution witnesses 11
& 18 did state on oath the matters referred to by the learned Judge. In
view of what we have stated earlier as regards the manner in which this Court
deals with appeals under Art. 136 there is no ground shown for interfering with
the conviction of the third appellant or the sentence passed.
Before parting with this case it is necessary
to advert to one matter. In the course of his arguments learned Counsel for the
appellant drew our attention to certain police rules framed 'by the State
Government which prohibited policemen from joining unions and sought to raise a
point that the said rule was unconstitutional as in violation of Art.19(1)(b)
and that II the activities of the four 35 accused were in reality an attempt to
form an union and that therefore we should consider the legality of this rule
of the police force in considering the propriety of their Convictions. Though
there is a reference to the rule in the judgment of the High Court, it is
referred to only incidentally and as part of the narrative in detailing the
activities of the accused. The offence with which the accused were charged was
certainly not the violation of that rule, which if might be pointed out did not
create any offence, so that the validity of that rule was wholly irrelevant to their
guilt when charged with substantive offences under the various enactments we
have noticed earlier. It need hardly be pointed out that the fact that a person
is engaged in asserting a fundamental right affords no defence to a charge of
having contravened a valid penal statute while so engaged. In the High Court
the validity of the police rule was never challenged and in the circumstances
we declined
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