State of Bihar Vs. Mangal Sao  INSC
115 (29 March 1962)
29/03/1962 SUBBARAO, K.
DAYAL, RAGHUBAR AIYYAR, T.L. VENKATARAMA
CITATION: 1963 AIR 445 1963 SCR (1) 148
Radio Receiving Set-Keeping and using without
licence Whether an offence-Indian Telegraph Act, 1885 (13 of 1885), s. 20.
The respondent was found using a Radio
without a licence and was prosecuted under s. 20 of the Indian Telegraph Act,
1885 as well as s. 3 and s. 6 of the Indian Wireless Telegraphy Act, 1933 (17
of 1933). He was convicted of both the offenses by the lower courts but the
High Court acquitted him of the offence under s. 20 of the Indian Telegraph Act.
On an appeal by the State against the acquittal.
Held, that a Radio Receiving Set is a
"telegraph" within the meaning of s. 3 (1) of the Indian Telegraph
Senior Electric Inspector v. Laxmi Chopra,
[A. I. R.] 1962, S. C. R. 9, 16, referred to.
Held, further, that using and keeping a Radio
Set amounted to "maintaining" and "working" a
"telegraph" under s. 3. (1) of the Indian Telegraph Act, 1885.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 222 of 1960.
Appeal by special leave from the judgment and
order dated April 11, 1960, of the Patna High Court in Criminal Revision No. 76
S. P. Varma and P. D. Menon, for the
The respondents did not appear.
1962. March 29. The Judgment of the Court was
delivered by SUBBA RAO, J.-This appeal by special leave against the judgment
and order of the High Court at Patna raises the question whether-to use neutral
149 terms-the keeping or using of a radio set by the person without a licence
would be an offence under s. 20 of the Indian Telegraph Act, 1885 (13 of 1885),
hereinafter called the Act.
The respondent is a businessman, having a
shop in the city of Patna. In November, 1955 an Inspector of Wireless Telegraph
visited his shop and found a radio set being played therein. As he was using
the radio without a licence, be was prosecuted, under ss. 3 and 6 of the India
Wireless Telegraphy Act, 1933 (17 of 1933) and s. 20 of the Act. The Judicial
Magistrate, Patna City, convicted the respondent under the said sections and
sentenced him only under s. 20 of the Act to pay a fine of Rs. 200/and in
default to undergo simple imprisonment for three months. On appeal the learned
Sessions Judge, Patna., confirmed both the conviction and sentence. On
revision, the High Court at Patna set aside the conviction and sentence under
s. 20 of the Act, but confirmed the conviction under ss. 3 and 6 of the Indian
Wireless Telegraphy Act, 1933 and sentenced him to pay a fine of Rs. 100/and in
default to undergo simple imprisonment for one month. The State of Bihar has
preferred the present appeal against the order of acquittal made by the High
Court under s. 20 of the Act.
The High Court set aside the conviction under
s. 20 of the Act on the ground that the use of a wireless receiving set without
a licence would not be an offence under the said section having regard to the
provisions of s. 4 of the Act.
Mr. Varma, learned Counsel for the State,
canvasses the correctness of that decision.
It would be convenient at the outset to read
the relevant provisions of the Act as they stood before amendment by Act 15 of
Section 3. (1) "telegraph" means an
150 electric, galvanic or magnetic telegraph, and includes appliances and
apparatus for making, transmitting or receiving telegraphic, telephonic or
other communications by means of electricity, galvanism or magnetism.
Section 4. (1) Within India, the Central
Government shall have the exclusive privilege of establishing, maintaining and
Provided that the Central Government may
grant a licence, on such conditions and in consideration of such payments as it
thinks fit, to any person to establish, maintain or work a telegraph within any
part of India.
Provided further that the Central Government
may, by rules made under this Act and published in the Official Gazette,
permit, subject to such restrictions and conditions as it thinks fit, the
establishment, maintenance and working.
(a) of wireless telegraphs on ships within
Indian territorial waters and on aircraft within or above India, or Indian
territorial waters, 'and (b) of telegraphs other than wireless telegraphs
within any part of India.
Section 20. (1) If any person establishes,
maintains or works a telegraph within India in contravention of the provisions
of section 4 or otherwise than as permitted by rule made under that section, he
shall be punished, if the telegraph is a wireless telegraph with imprisonment
which may extend to three years, or with fine, or with both, and, in any other
case, with a fine which may extend to one thousand rupees.
151 Under the said section, if a person
establishes, maintains or works a telegraph without a licence in contravention
of the provisions of a. 4, he would be committing an offence punishable there under.
The first question is whether a radio receiving set is a "telegraph"
within the meaning of the definition given in the Act. This Court had an
occasion to consider the scope of the said definition in the context of a Post
and Telegraph Wireless Station, which was receiving communications from
different cities of the country, in Senior Electric Inspector v. Laxminarayan
Chopra(1). After quoting the provisions of s. 3(1) of the Act, this Court
proceeded to observe :
"The Telegraph Wireless Receiving
Station clearly comes within the definition of "telegraph" in the
Telegraph Act. The Telegraph Act was passed in 1885. "Telegraph" then
included ,an electric, galvanic, or magnetic telegraph and appliances and
apparatus ...... for telegraphic, telephonic or other communications by means
of electricity, galvanism or magnetism". At that time Wireless telegraphy
or radio had not been developed. In the year 1914, s.3(1) of the said Act was
amended and the following words were inserted after the words "apparatus
for".: " making, transmitting or receiving".
With the result that, after the amendment,
receiving of communications by means of electricity was included in the
definition. A wireless receiving station certainly receives communications by
means of electricity and therefore, it is "telegraph" within the
meaning of the said definition.
If a telegraph wireless receiving station is
a telegraph as defined in s. 3(1) of the Act, a radio set receiving
communications should equally be a (1) A.I.R. 1962 S.C. 159,161, 152 telegraph
within the meaning of the said section; for a radio set receives communications
by means of electricity.
Wireless transmitter transmits .sound as
electromagnetic waves and the said waves are detected and received by the
receiving apparatus. We, therefore, hold that a receiving set is a telegraph
within the meaning of the Act.
The next question is whether the respondent
established, maintained or worked a telegraph within the territories of India
in contravention of the provisions of s. 4. Section 4(1) consists of a main
part and two provisos. The main part of the section confers an exclusive
privilege on the Central Government of establishing maintaining and working
telegraphs. The second proviso enables the' Central Government to make rules to
permit the establishment, maintenance and working of wireless telegraphs on
ships and aircraft within a specified area or of telegraphs other than wireless
telegraph within any part of India. The first proviso confers a power on the
Central Government to grant licence to establish, maintain or work a telegraph
within any part of India. There is difference in the phraseology used in the
main part and the second proviso and that used in the first proviso. While in
the main part and the second proviso the conjunction "and" is placed
between "'maintaining" and "'working", in the first proviso
the disjunctive "or" is used. It is not necessary to express our view
whether in the main part and the second proviso the three words
"establishing", "maintaining" and "working" can
be read disjunctively, for we are only concerned with the first proviso which
expressly made them disjunctive. Under s. 20 of the Act also the disjunctive
"or" is used between ,,maintains" and ",,works". It
is, therefore. clear that under the first proviso to s. 4 the Central
Government may grant a licence to a person for establishing, maintaining and
working a telegraph or in respect of any of them; and if a person either
establishes, maintains or 153 works a telegraph without a licence or in
contravention of the terms of licence, he would be committing an offence under
s. 20 of the Act.
It is suggested that neither of the three
terms would be appropriate for keeping a radio set or using it. Learned counsel
for the appellant argues that keeping or using a radio set would be maintaining
or working a radio within the meaning of that section. In the Shorter Oxford
English Dictionary the following meaning, among others, is given to the word
"maintain" ; "to keep in being; to preserve unimpaired ; to pay or
furnish the means of keeping up of ;
to keep supplied or equipped to keep in
repair. A person who has a radio set for the purpose of using it must
necessarily keep it in good condition and bear the expenditure for so keeping
it and for repairing it, if it goes wrong., He can, therefore, appropriately be
said to maintain it within the meaning of the section.
The same dictionary gives various meaning to
the verb ,'work". The following are some of them "to bestow labour or
effort upon" ; "to manipulate ,so as to bring it into the required
condition" ; ",to operate upon so as to get into some state or
convert into something else" ; "to bring or get into some condition
by labour or exertion". If a person tunes a radio, he can properly be said
to operate upon it or manipulate it for the purpose of receiving the said
communications. Such a person works on the radio. We, therefore, hold that a
person in possession of a radio for use maintains as well as works it. In this
case it has been established that when the Inspector visited the shop of the
respondent$ the latter was using the radio and therefore was working it.
Reliance was placed by the High Court on a
judgment of the Madras High Court in In Re Pandian (1), wherein Pandrang Row,
J., appears to (1) A.I.R. 1938 Mad. 821.
154 accept the contention that the use of a
wireless set without a licence is not an offence under s. 20 of the Act. The
learned Judge observed :
"It is, to say the least, extremely
doubtful whether the use of a wireless receiving set without a licence would
amount to an offence under s. 20, Telegraph Act, which in view of s. 4 of that
Act could not have been intended to include wireless receiving sets used
ordinarily to receive broadcast programmes." The learned Judge has not
expressed a final opinion on the construction of the section. Presumably, he
was of opinion that s. 4 applies only to a telephone established, maintained
and worked by Government or with its permission.
With great respect, the learned Judge has
omitted to notice the first proviso to s. 4 of the Act which takes in a licence
of a telegraph for one or other of the three purposes mentioned therein. In the
result, we hold that as the respondent used the radio without a licence, he
committed an offence under s. 20 of the Act.
We, therefore, convict him under s. 20 of the
Act also. But in the circumstances of this case, we think that no separate
sentence is called for. The sentence already imposed under ss. 3 and 6 of the Indian
Wireless Telegraphy Act, 1933, is sufficient. In the result, the order of the
High Court is modified to the extent indicated.