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Report No. 37

291. Section 108-Retention of jurisdiction under.-

It has been suggested,1 that section 108 should be omitted. We are not in favour of deletion of the section.

We would, however, like to draw attention to the fact that the jurisdiction under section 108 is preventive, and not punitive. The test is, whether there is (i) dissemination of seditious matter; and (ii) fear of repetition.2 "To take proceedings under section 108, there ought to be evidence that, if not prevented, the person accused would continue to act in the way in which he had done."3 We may quote4 the observations of Rankin J.:

"The most important thing in the end is the question under section 108, Cr. P.C., whether it is necessary to order the person summoned to enter into a bond.

It may sometimes happen that the contention on the part of the editor in such circumstances is so extravagant that the Magistrate may be justified in thinking that unless effective steps are taken, the editor intends, notwithstanding the decision of the Court, to go on as before. Merely because a person has insisted upon putting his case before the Court and taking its decision, to infer that it is necessary after the decision has been given to bind him down in or to prevent him from doing the same thing again is, I think, unwarranted.

The following observations show the scope and object of section 108:-5

"The provisions of Chapter VIII of the Code are no doubt preventive in their scope and object; and are obviously aimed at persons who are a danger to the public by reason of the commission by them of certain offences. The test under section 108 is whether the person proceeded against has been disseminating seditious matter and whether there is any fear of a repetition of the offence. In each case that is a question of fact which must be determined with reference to the antecedents of the person and other surrounding circumstances."

1. F. 27(5)/54-Judl. (Home Ministry File), Appendix II, Item No. 10 (suggestion of a Member of Parliament).

2. Emp. v. Vaman, 11 Bom LR 743.

3. Chiranji Lal v. K.E., ILR 50 All 854: AIR 1928 All 344 (345) (Dalal J.).

4. Chakravarty v. K.E., ILR 54 Cal 59: AIR 1926 Cal 1133 (1137) (Rankin J.).

5. Emp. v. Vaman, (1909) 11 Bom LR 743 (744) (Chandavarkar, Ag. C.J. and Heaton J.).

292. The circumstances in which section 108 was inserted in the 1898 Code are interesting. Alongwith the Bill of 1898, amending the Indian Penal Code, for the purpose of dealing with the law of sedition, Government decided to insert section 109. The reasons were thus explained1:-

"For the present, at any rate, we have no further amendments to suggest in the substantive law, and I now wish to refer to two amendments which the Government propose to move in the Select Committee on the Code of Criminal Procedure Bill. Section 109 of that Code provides that in certain cases people who misbehave themselves may be bound over and required to find sureties to be of good behaviour for a term not exceeding twelve months. We propose to apply a similar procedure to the case of people who either orally or in writing disseminate, or attempt to disseminate, obscene, seditious or defamatory matter.

A man who disseminates, that is to say, who shows broadcasts or scatters abroad, such matter is obviously a dangerous public nuisance. It is immaterial whether he chooses, as his means of dissemination, an oral address, or a book or a pamphlet, or a newspaper. We are bound to check such obnoxious conduct. But as a rule the persons who are guilty of it are small and insignificant individuals. They may do enormous mischief among uneducated, foolish and ignorant people, but in themselves they are deserving of very little notice. It is absurd to deal with them by an elaborate State prosecution.

We think that in most cases no prosecution at all will be required. It will be sufficient to give them an effective warning to discontinue their evil practices, and we think that the machinery we have devised will operate as an effective warning. The general power of revision possessed by the High Courts will secure that that machinery will not be used in any way oppressively; and we further propose that this new power should only be exercised by Presidency or District Magistrates, or specially empowered Magistrates of the first class."

1. Proceedings of the Governor-General-in-Council, December 12, 1897; speech of Mr. Chalmers, Law Member.

293. The necessary clause was approved in substance by the Select Committee.1 The Committee stated, that it had confined jurisdiction to certain Magistrates, and provided that the bond may be with or without surety, and removed reference to obscene matter and made certain other changes. It had also provided that the order shall be subject to revision.

The amendment, however, evoked serious protests.2

1. Report of the Select Committee on 1898 Code, 16-2-1898, Legislative Proceedings, April 1898, Nos. 24 to 128, Appendix A-50 (National Archieves).

2. See the various articles and notes in (1898) 2 Calcutta Weekly Notes (Journal section), pp. 51, 73, 75, 85, 87, 88 (representation of the Calcutta Bar) and 95 (Report of the Select Committee on the amendment to the IPC) and p. 111.

294. In the proceedings of the Select Committee on the 1898 Code,1 one of the members, Shri Bishambar Nath, stated, that insertion of the new clause would virtually mean the revival of that "retrogressive and noxious legislation in the Vernacular Press Act." Answering the criticism, Sir John Woodburn explained the real object of section 108 thus:-

"In the interests of good government it is always better that crime should be prevented than that it should be allowed to come to a head, however, exemplary and effective the subsequent punishment may be. The lamentable riots, which were yesterday reported from Bombay, furnish fresh proof of the suddenness and fierceness with which passions may be roused in this country in an ignorant mob and of the imperative necessity of arming the executive with all the powers of prevention which possible forewarning may render it expedient to use.

"I am myself perfectly willing that even this preventive jurisdiction shall be exercised only under the express authority and sanction of Government. This will give assurance that it will be exercised with moderation and prudence; but that provision should exist for the use of preventive measures, when occasion requires, is the opinion of every responsible Government in India and of every High Court without exception. The only dissentients in the High Courts were Justices Ghose and Banerjee, Judges of a soberness and soundness of judgment which must always carry weight and even they accepted the measure now before Council with the proviso which will be agreed to today. I can add nothing to this unanimous opinion of all that is responsible for the peace and order of India."

1. Proceedings of the Governor-General-in-Council, 11th March, 1898, Legislative Proceedings, April, 1898, Nos. 24-128, Appendix A-60 (National Archieves).

295. One of the amendments moved by Sir Griffith Evans was accepted in the Council. He moved this amendment:-

"No proceedings shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under or printed or published in conformity with the rules laid down in the Press and Registration of Books Act, 1867, except by the order or under the authority of the Governor-General in Council or the Local Government or some officer empowered by the Governor-General in Council in this behalf."

He thus explained the amendment "The last words of the amendment are taken from section 196. The effect, roughly speaking, is to require the same sanction of Government when proceedings are instituted under section 108 against the Press as is required in all cases of a prosecution under section 124A. The result will be that Magistrates will be able to take proceedings without Government sanction in all other cases, but will require Government sanction before taking proceedings in respect of a newspaper article. It may be asked why this distinction should be made between oral and written sedition.

One reason is that oral incitements to a mob of ignorant people are apt to lead to immediate disturbances and may require immediate action without waiting for sanction. Another is that many seditious preachers are migratory and must be caught at once if they are to be stopped, whereas newspaper editors and publishers have a fixed address and a fixed occupation and can be found at any time. But the main reason is a different one. A portion of the Vernacular Press has been allowed to drift into a very lamentable condition for many years, and the curb which it is proposed to put upon them by this section will have to be applied with great discretion and judgment.

I mean no disrespect to the Magistrates in India when I say that I do not think this power can be safely entrusted to them. Able and conscientious as they are, the comparatively isolated lives that they lead in the several districts are not favourable to the wide outlook and sense of proportion which are necessary to deal effectively with this evil. Many of them are also too young. It is, I think, essential that this power should be exercised by persons of the ripest judgment, living in a serener atmosphere, away from local feeling and excitement. In fact, I do not think that any one but the Government ought to use this power with any prospect of the good results which are intended."

296. Section 108.-changes required.-

Power under section 108 should be assigned to Executive Magistrates, the power being of a preventive nature. It may be given to-

(a) Chief Presidency Magistrates, (see existing section);

(b) District Magistrates, (see existing section);

(c) Presidency Magistrates specially empowered by the State Government in this behalf (see the Bombay Amendment);

(d) Executive Magistrates of the first class (see the Punjab amendment).

Mention of section 295A, Indian Penal Code, should be added in section 108, as the offence under that section is similar to the offences already mentioned in section 108.

297. Section 109.-suggestion regarding intention to commit crime.-

A suggestion1 to extend section 109 to cases of intention to commit a crime was considered, but rejected by us.

A suggestion2 to omit section 109 totally was also considered, but we are unable to accept it.3

1. F. 27(3)/55-Judl. II (Home Ministry File) Appendix I, Item No. 20.

2. F. 27(5)/54-Judl. (Home Ministry File), Appendix II, Item No. 11.

3. See also discussion relating to sections 107-110, supra.

298. Section 109.-power under.-

The power under section 109 should be given to Executive Magistrates, the power being of a preventive nature. These will be-

(i) Presidency Magistrates specially empowered by the State Government in this behalf (see the Bombay amendment);

(ii) District Magistrates (see the existing section);

(iii) Executive Magistrates of the first class (see the Punjab amendment);

$$To be carried out under section 55.

299. Section 109(a) and the words "to conceal his presence".-

Under section 109(a), there is a conflict of decisions as to the interpretation of the words "to conceal his presence within the local limits of the Magistrate's jurisdiction. We considered the controversy at some length. We recommend, that the wider interpretation be adopted, that is to say, it is not necessary that the person against whom action is to be taken should have come from outside the Magistrate's jurisdiction. To achieve this object, section 109(a) should be amended so as to read-

(a) that any person within the local limits of such Magistrate's jurisdiction is."

It will also be desirable to amend section 55, as it is couched in similar phraseology.1

1. F. 3(2)/55-L.C., Pt. VII, S. No. 152.

300. Section 109(b): Constitutionality of.-

With reference to section 109(b), the following suggestion has been made by the Minister for Justice of a State Government1:-

1. F. 27(3)/55-Judl. II (Home Ministry File) Appendix I, Item No. 20.

"For a correct understanding of the changes which have taken place in consequence of the promulgation of the Constitution of India, it is necessary to look to the background-the context of bureaucratic rule. It cannot be denied that the position of a citizen in law before independence has drastically changed in the wake of freedom on the promulgation of the Constitution of India. Consequently, there has been a corresponding change in the rights of citizenship.

The relevant question is what were the rights of a citizen of India before the Constitution of India came into force and how these rights stand now after its promulgation The old rights of citizenship created under foreign rule were of such a character and extent the exercise of which would not in any way interfere with the strengthening of the position of British rule in India and the foreign Government was too vigilant to protect its interests.

Thus, the interests of the people were sacrificed for the benefit and welfare of British administration in this country. It will be appreciated that the old conception is now entirely changed. Whatever rights of citizenship are provided under the Constitution, they have been created for building up and consolidation of the freedom of the country in the first instance and secondly for providing opportunities of free natural development to citizens of this country with an intense irresistible urge to vivify and resuscitate the dead- stagnant life of its people. To examine the position in law of section 109(b), Cr. P.C. we should look at it from the angle of vision of the new conception of citizenship as adopted and enshrined in the Constitution.

Under section 109(b), Cr. P.C. the question of public peace is also involved. Public peace under the old British regime was undoubtedly a public peace of a graveyard, but on attainment of freedom this conception of public peace has undergone a drastic change. Now the conception of public peace is pregnant with its significance of the public peace of free citizens which will lead to the strengthening and consolidation of freedom in the country and to the awakening of a growing dynamic life of its citizens.

From the above, it is crystal clear that under the new set-up of democratic Government we have to examine it in the light of the provisions of the rights of citizenship contained in the Constitution of India and that of public peace in its new context of the free sovereign state. If for interpretation of the provision of the Constitution we base our examination on the same old outdated conceptions of the rights of citizenship and public peace, which we can honestly say are left behind as most disgraceful, insulting and degrading remnants of the slavery of British rule in India, we will only misguide our endeavour and chase the wild goose in so far as the correct understanding of the above subject is concerned. Naturally as follows:-

(1) Whether the conceptions of the rights of citizenship and that of public peace have undergone a change in consequence of the promulgation of the Constitution of India ? If so, how the above conceptions as they stand now after attainment of freedom, are materially different from the old ones ? In case a material change is found, how does section 109(b), Criminal Procedure Code affect the provisions of Constitution of India ?

(2) Whether the responsibilities of the Free Sovereign State of India for moral and material progress and peace and prosperity of the citizens of this country are the same as that of old regime of Britishers in this country, or this responsibility has further fully developed into a complete responsibility of a Sovereign State ? If so, is an action under section 109(b), Criminal Procedure Code justified and maintainable ?

(3) Whether any classification of the people of this country based on the ground of their fortunes is countenanced by the provision under the Constitution of India.

(4) Whether in view of the great changes mentioned above section 109(b), Criminal Procedure Code stands repugnant to the provision of Article 14 of the Constitution ?

(5) Whether section 109(b), Criminal Procedure Code is void by reasons of its inconsistency as provided under Article 13 of the Constitution ? So far as the provision of section 109(b), Cr. P. C. is concerned, it apprehends breach of public peace from a class of people who have no ostensible means of subsistence-have nots. This is obviously creating a class by itself to be dealt with differently by the law of the land from the class of the people who are the haves. Is such a position tenable according to the Constitution of India ?"

We considered the suggestion. Our view is this-Section 109(b), cannot be employed against a person merely because he is a pauper or he is unemployed. It is requisite that the demanding of security must be necessary to ensure good behaviour. There must, ordinarily, be a suspicion that dishonest means are resorted to.1 That being the position, we do not think that the section needs alteration because of the constitutional provisions.

1. See Victor, ILR 53 Cal 345.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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