This is an important case from the point of view of Newspaper's Editor's public criticism of Government officers and their conduct relating to their discharge of their duties, and the propriety of stopping such criticism in newspapers by issuing a multifarious and omnibus order under S. 144, Criminal Procedure Code, and an ex parte order too, when there is no likelihood of a disturbance of the public tranquility, or of a riot or affray, or of obstruction, annoyance or injury to any person lawfully employed, or of danger to human life, health or safety, as contemplated in S. 144 itself as a condition precedent for issuing an order under that section. The case has been argued ably, soberly and moderately by Mr. V. Rajagopalachariar, the learned Counsel for the petitioner and by the learned Advocate General for the State. To understand the case, it will be necessary to quote the extracts from the annexure to the order under S. 144, Criminal Procedure Code passed by the Sub-Divisional Magistrate, Vijayawada, from the articles published by the petitioner, Bandi Butchiah, in his weekly paper called “Mulukola” published at Vijayawada.
It is obvious, even on the first reading of these extracted documents, that the news and comments of Bandi Buchiah, the petitioner, on various police and other officers in Krishna District have been exceedingly pungent, and even vitriolic and violent, and that they may reasonably be termed “excessive” unless he can adduce sufficient evidence in support of his allegations. Thus for instance, his comment in the issue of 15-4-1951, “In Krishna district Pidikoti Ramakottayya and Krishna District Police officers are working together for mutual benefit as thieves divide villages for thefts.” will require the fullest proof before any sane man will accept it as true regarding the present day police administration there. So too his terrible remarks on Anti-smuggling Sub-Inspector Narasayya, D.S.P Pinto, etc. Mr. Rajagopalachariar, for the petitioner submitted that, though the comments appear at first sight to be extraordinarily wild and reckless, we are living in extraordinary times of corruption, irregularity and high handed action and, so the comments need not necessarily be false or malicious, and, that in any event, the petitioner is willing to stand a prosecution and prove his comments to be true to the hilt. The learned Advocate General submitted that he would have agreed that an order under S. 144 of Code of Criminal Procedure in the circumstances disclosed in this case was a most extraordinary step to take against a newspaper and its future articles, especially when the acts prohibited are not merely attacks on the above officers, or even police officers in general, but all acts termed ‘excessive publications” against all gazetted and non-gazetted officers of the police department, and, indeed, of all other departments of the Government regardings acts committed or purported to have been committed in the discharge of of their public functions or capacity as public servants. There is a rather curious clause in the order of the Sub-Divisional Magistrate, evidently intended to cover the illegal nature of the order, that Bandi Butchiah is permitted to edit, print and publish news which is not excessive, and which would not be unlawful, as the order did not want to take away his rights and privileges as editor, printer and publisher of the weekly! The learned Advocate-General submitted that the order would never have been passed but for the threat of Butchiah the petitioner in his issue dated 8—7—1951, that he would continue the half finished article in the issue of 15—7—1951, and he assured me that the order will not be renewed after its lapse after two months. He frankly conceded that there was no prior instance in this State of an order under S. 144 of the Criminal Procedure Code having been passed to prevent a newspaper from publishing such articles in future. But he relied on a ruling of a Bench of the Bombay High Court, reported in Emperor v. Ganesh Vasudev Mavlankar [1931] 55 Bom. 322 for the position that the word “annoyance” in S. 144 Cr. P.C need not necessarily mean physical annoyance and may include mental annoyance also. That is so, and has always been so. Thus, for instance, if a full grown sane adult in a fit of exhibitionism goes along a crowded public street stark naked in broad day light, causing annoyance to people living in the street, it will certainly amount to “annoyance” within the meaning of S. 144 Cr. P.C, though no physical annoyance may be caused by the act. So too, if a man harasses and annoys people by calling them on the phone constantly and abusing them, or calls a young woman on the phone constantly and makes improper overtures to her it will be “annoyance” within the meaning of S. 144, even though there is only mental annoyance. But the Bombay ruling will not help the learned Advocate-General in his contention regarding the validity of the order under S. 144, Cr.P.C in this case. It has been held by the High Courts over and over again that S. 144 Cr.P.C provides for temporary orders in urgent cases of nuisance involving a danger to public health or life, or apprehended danger of a breach of the peace, like a riot or affray, and that the urgency of a case of dangerous nuisance or apprehended danger of a breach of the peace is essential to the application of S. 144, and that orders under S. 144 are passed only in the general interests of society (and not in the interests of particular officers, etc.) and can interfere, within the limitations laid down, with private rights of enjoyments of properties, and that, therefore, the powers have to be exercised very carefully, and interference with private and public rights reduced to a minimum and regulated by a full observance of the limitations imposed by the section itself. (See, for example, Ram Narain Sah v. Parameswar Prasad Sah [19421 A.I.R Pat. 414. Even where an order under S. 144 deals with a nuisance, there must be a danger to life or health involved, or of an affray or riot or breach of the peace. Mere defamatory statements, and even highly objectionable abusive articles against prominent officials, cannot be dealt with under S. 144 Cr.P.C unless they are likely to lead to a breach of the peace or to a nuisance endangering life or health. S. 144 should not be abused by using it for dealing with abusive articles and defamation not likely to lead to a breach of the peace, for which there are other appropriate remedies under the law, as that will be making the medicine the daily food. A Bench of the Calcutta High Court, consisting of Harries C.J and Das Gupta J. has held, in Hulasmulla v. Tulsi Shaw [1949] 53 C.W.N 344, that the powers given to a magistrate under S. 144 are very wide, and that, for that very reason, they should be exercised with discretion and discrimination, and that Magistrates ought to remember that arbitrary use of these powers is not only unfair to the parties concerned but is very often calculated to defeat the purpose for which the orders are passed, and that an order under S. 144 should not be made without a searching investigation of the facts of the case and a strict compliance of the requirements of the section itself. The present case is an instance of the violation of those salutary directions. In an attempt to curb unjust attacks on officers, all attacks on officers, and even comments on the public acts of all officers of all departments were prohibited in this order, while pretending to leave the privileges of this newspaper editor and his newspaper in tact. That is a clear abuse of the powers given under S. 144. While S. 144 has the vital phrase “to abstain from a certain act” the order here directed Buchiah to abstain from an untold number of acts of a very vague and uncertain nature, called “excessive publication”, violating this vital clause and the great safeguard it contains against such whimsical and arbitrary acts of magistrates. A Full Bench of the Lahore High Court, consisting of Young C.J and Bhide and Mahomed Munir. JJ. held in P.T Chandra, Editor, Tribune v. King Emperor [1942] I.L.R Lah 510 F.B that the right of the public to have news published is common to all countries when there is liberty of the press, and that it is the right of all newspapers equally to publish news, provided it does not offend against any existing law, and that it is obvious, therefore, that the powers given to a magistrate under S. 144, Cr. P. C, to interfere with the liberty of the press should be used very sparingly and only for good cause shown and that it is for that reason that S. 144 Cr. P.C itself makes it obligatory for the Magistrate in any such order to indicate the material facts which justify such an order. It was held there further that not only is it necessary to state the material facts but there must also be urgency in the matter. It was also held that though the opinion of a magistrate, expressed in an order under S. 144, is entitled to great weight, as the man on the spot and the officer responsible for the maintenance of peace and order in the locality, it is not to be accepted as absolutely correct in all circumstances, and that the High Court has, in proper cases, got full power to interfere with such orders. It was also held that there must be a causal connection between the act prohibited and the danger apprehended to prevent which the order is passed. That decision, with which I wholly agree, shows clearly that an order under S. 144 Cr. P.C can be passed against newspaper editors and newspapers also in suitable cases warranting such an order. But it shows this order to be wrong in five ways, namely, in resorting to S. 144 lightly-and in violation of its terms and in the absence of any nuisance involving danger to health or life or of a breach of the peace: interfering with the right of a newspaper and its editor to publish news and comments without any real need to take to such action, instead of resorting to other and appropriate sections of law to deal with the alleged offences; failing to establish a causal connection between the news and comments published by the petitioner in his newspaper and the alleged insubordination of subordinate officials, the alleged recrudescence of anti-social activity by communist and other turbulent elements, and the alleged creation of prejudice in the minds of the superior officers against the officers attacked by the petitioner in his paper; the failure to hold an investigation and satisfy himself that the news and comments offended against any existing law; and the passing of an ex parte order without any real urgency or justification. Merely annexing extacts from the vitroilic comments of the petitioner to the order under S. 144 will not cure these five grave defects. I shall now examine thereasons given in the Sub Divisional Magistrate's order in detail.
The learned Sub Divisional Magistrate has given seven main reasons for passing this order under S. 144;—
1. That the comments of the petitioner in his paper tend to make the officers attacked, namely, the D.S.P Mr. Pinto, Special Dy. S.P Mr. Palaniappa, Anti-smuggling Sub-Inspector Mr. Narasaiah, and others, depressed and apathetic in the discharge of their duties, instead of enthusiastic, as before. This is no reason for passing an order under S. 144. There is no reason also why these officers should take notice of the comments of this man in his weekly paper, of no great influence or standing, and take them to heart to such an extent as to get derailed and depressed and apathetic and unmindful of their duties, especially when the comments are alleged to have been false and malicious and fabricated and of a most frivolous and vexatious nature. Besides, S. 144 is not intended to be used in the case of such depression in Government servants when there is no danger of a breach of the peace or of a nuisance involving danger to life or health, and when there was no obstruction, annoyance or injury to any of these officers when they were lawfully employed in their duties. It was not alleged that this petitioner went to any of those officers while they were engaged in their legitimate duties and annoyed them by levelling such accusations against them, or even sent his newsboys to them with the issues containing these comments of his in order to cause them annoyance, or that he asked his readers, to obstruct, annoy or injure these officers in the course of their lawful employment, when, of course, an order under S. 144 could have been lawfully passed against him, editor or no editor, as that would certainly have led to a breach of the peace or to a nuisence involving a disturbance to the public tranquality.
2. The superior officers of the officers attacked by this petitioner in his paper ware said to be likely to become prejudiced against those officers by reason of these comments, I cannot see how the superior officers were likely to get prejudiced against the victims of these attacks, especially when the order itself says that the suparior officers enquired into the allegations in the comments and found them to be false and malicious. Further, it is not one of the legitimate uses of S. 144 Cr, P.C even if these superior officers are likely to gulp down these wild comments as gospal truth and get prejudiced against the victims of these attacks.
3. It is said further that the subordinates of the D.S.P, Special Dy. S.P etc. the officers attacked, might become disgruntled, indiciplined and insubordinate by reading these comments and taking them to be true ! I cannot see why these subordinates should become disgruntled, and insubordinate or indisciplined by reading that a constable was behaving better than the D.S.P or Dy. S.P and asking the D.S.P and Dy. S.P to learn a sense of duty from that constable. I do not consider that they will become so, merely by reading these comments and without even enquiring into their truth or otherwise. I think few subordinates will be influenced by such vitriolic news and comments upon the officers in question. Nor can the fact, even if true, be a reason for using S. 144 Cr.P.C for such a purpose against a newspaper when there is no danger to life or health or of a nuisance or a breach of the peace or of an annoyance while discharging duty.
4. It is stated that the Krishna District is in a disturbed state now, owing to communist trouble, that has not yet come to normal, and that the anti-social elements, which were about to settle down, owing to the efficient working of the Special Police Staff under the direct control of the District Superintendent of Police, were becoming ready to re-start their activities should the police get depressed and relax on account of the comments upon themselves. This is an extraordinary statement. I do not think that the police officers care two hoots for this man's comments. Nor is the alleged fact, even if true, a reason for using S. 144 Cr. P.C against a newspaper in the absence of the danger of a breach of the peace etc. The particular difficulty of a district must be met by adopting the proper procedure laid down by law, and by booking the alleged offenders under the appropriate sections, and not by using S. 144 of the Criminal Procedure Code for a purpose for which it was never intended. The procedure is as important as the booking of an offence. Government officers cannot get a remedy not given to non-officials.
5. It is stated further in the order that hatred and disaffection is being created among the public against Government servants in general and some State officials in particular, by reason of these comments in this weekly. I cannot bring myself to believe it. Tigers may create a panic among people, but rarely scorpions! Even if it is true, the remedy is to take appropriate proceedings. Prosecutions under the Penal Code and other substantive laws must be taken against individuals committing such acts, and not an order under S. 144 Cr. P.C which can be applied only within the strict limits mentioned there.
6. The sixth reason given is that Buchiah, in making these comments, was not actuated by any public good or public benefit, and was not acting in good faith, but was requesting favours from the Government officers concerned, and money payments from merchants, and that, when such favours were refused or such money payments were refused, he was attacking them by way of intimidation or blackmail. Even if that is so, the proper course is to put up Buchiah for attempted intimidation or blackmail or extortion or threatening Government servants, or others, under the Penal Code or any other appropriate section of law, but certainly not to pass an order under S. 144 Cr. P.C when there was no danger of a breach of the peace or nuisance as contemplated under that section, or of annoyance to officers when lawfully employed.
7. Finally, it was said that Buchiah was, by his false and malicious comments, aiming to achieve cheap popularity amongst the public in view of the forth coming adult suffrage elections and was making such comments wildly and recklessly as the public are always excited by such comments and mistake persons making such comments to be patriots and friends of the people. No doubt, election times see wild and reckless allegations and counter-allegations made. And, of course, it is true that there are persons in India now who want to become popular with the public in view of the forthcoming general elections on the basis of adult suffrage, and make all kinds of objectionable gestures, either by threatening to fast unto death, sometimes even for petty reasons, or by attacking Government servants or officers of companies and corporations falsely, or by shouting offensive slogans or by creating a disturbance in courts when being tried, or by claiming to be friends of the poor and leading them on foolish hunger-marches or looting of shops. All these evils exist not only in this country and at this time but have existed to some extent in every country and at every time. Extreme caution is required in dealing with these symptoms of election fever and hysteria. Before using the provisions of S. 144 Cr. P.C such vague allegations, as aiming at cheap notoriety, will not do, and it must be proved that s. 144 Cr. P.C can be applied to this case within the strict limits prescribed in the section itself. The learned. Advocate General quoted the instance of Lakshmikanthan and his obscene news and comments on respectable people in his papers called the Hindu Nesan and Cinema Thoothu, but he did not say that any order under S. 144 Cr. P.C was passed against Lakshmikanthan or that it was upheld by any court. That extreme example itself takes the ground away from under his feet in this case. Indeed, in any stable and orderly society such wild attacks and outbursts, even if false and malicious, will be allowed for the time being; and a long rope will be given to persons indulging in them, as the society is strong enough to book them in the end and there is no need to short-circuit such news and comments by illegal methods like passing an order under s. 144 Cr. P.C against the newspaper and gag criticism even before it is made known. Of course, s. 144 Cr. P.C can be used even against newspapers in proper cases of incitements to breaches of the peace or to commit nuisances, dangerous to life or health or to annoy officers lawfully employed. But, in the present case, there was admittedly no incitement to commit a breach of the peace or to commit nuisances constituting a danger to life, or health, or to annoy officers lawfully employed in anything this man actully wrote. Mere “annoyance” caused to Government officials, when not actually employed in their task, by reckless or defamatory attacks on them not involving a breach of the peace or danger to life or health will, in my opinion, not do for invoking the powers under s. 144. It is impossible even to guess what the petitioner would have written in the threatened issue of the 15th. He has only gained cheap notoriety by the Sub Divisional Magistrate's passing an order against him unders. 144 Cr. P.C and preventing his publishing that much boosted “continuation article.” I do not believe the heavens would have fallen if this boosted continuation article was allowed to the published, and he prosecuted later.
In the interests of the purity of public administration and frank and free criticism of the activities of one and all, including Government servants, vested in all citizens and especially in the newspapers and their editors, I must set aside this order passed under s. 144, Cr. P.C as it is, in the circumstances disclosed, illegal and passed without jurisdiction and entirely misconceived to meet a situation like this, though articles like these, if false and malicious, deserved to booked in other and permissible ways. Admittedly, there was no danger of a disturbance of public tranquility in this case, as in the Bombay case, Emperor v. Ganesh Vasudev Mavlankar, where the order was held to be valid finally only because there was the likelihood of a disturbance of public tranquility; nor is there any danger of an affray in this case, as the police and other officers attacked are not likely to fight Bandi Buchiah in the public streets and create an affray; nor is there any danger to human life or health or safety involved in these attacks of Buchiah. Nor is there any real obstruction, annoyance, or injury, to any officer, when lawfully employed in the discharge of his duty, by Bandi Buchiah. I would have certainly upheld the order under S. 144 Cr.P.C if Bandi Buchiah had not merely published such news and comments but had also gone and annoyed the officers when engaged in their lawful duties, or had asked the public to go and attack the District Superintendent of Police, and the other officers or to resist or obstruct them in the searches, etc. I am not concerned here with the submission of Mr. Rajagopalachariar, counsel for the petitioners, that actually the Madras Government itself has instituted enquiries against the Anti-smuggling Sub Inspector Narasayya, and P. Ramakottayya, and that Bandi Buchiah's attacks and comments are thus proved to have had a kernel of truth in them, and were not merely false and malicious as the learned Sub-Divisional Magistrate alleged in his order. The order was also passed ex parte without any proper enquiry or real urgency. There was, in my opinion, no need or justification for its being passed ex parte. I am not satisfied with the contention that Bandi Buchiah could not be found before the ex parte order was passed, though he was diligently searched for. He strikes me as a person who would have welcomed any chance for publicity and would have been only too willing to appear and support his statements, and who could have been found very easily if really searched for. Such persons rarely hide their lights under a bushel. Further there was no danger to public tranquility, or human life or safety to justify an urgent ex parte order. The Sub Divisional Magistrate could have waited and heard this man before passing an ex parte order, under S. 144 Cr. P.C against him and his newspaper. It may be that the newspaper “Mulukola” may not be a first class newspaper following the high ethical codes of well established newspapers, like The Hindu, the Statesman, the Mail, the Indian Express etc. but even an obscure paper like Mulukola, is entitled to the enjoyment of rights and privileges conferred on newspapers in general, just as even Harijans must have their rights and merely the upper classes. The phrase “it is the right of all newspapers equally” in the Full Bench decision in I.L.R 1942 Lahore 510 is significant.
I must add before closing that this petition has been filed in this court because the District Magistrate of Krishna, admittedly, said at a Press conference, on July 15th 1951, that he fully agreed, with this prohibitory order under s. 144 Cr.P.C passed by the Sub-Divisional Magistrate; that being so, the petitioner's learned counsel said that he saw no use in putting in an application before the District Magistrate, Krishna. I may also add that three prosecutions for substantive offences have been launched against Bandi Buchiah regarding his allegations and comments in his newspaper, and are pending trial, and that he has also applied to this court for the transfer of the cases outside the Krishna District owing to the District Magistrate of Krishna having spoken at the Press conference, as stated above, though he is willing to be tried by the Assistant Sessions Judge, Vijayawada. Needless to say, such prosecutions for substantive offences are the correct steps to take in such cases, and not orders under s. 144 Cr.P.C I may add that, as elections are approaching, such comments are likely to become more and more numerous, and that it is advisable for Magistrates to know what particular sections of law they should apply, and what not, to stop irresponsible or malicious or false criticisms. Of course, an item of a news or comment must be held to be false or malicious or irresponsible only after an enquiry including a questioning of the person making it, and getting his explantion for the news or comments, and not merely ex parte, after hearing only the persons attacked, as in this case. It may be desirable for Parliament to amend S. 500 of the Indian Penal Code and make the offence of defamation punishable also with rigorous imprisonment, if attacks of a very grievous nature, as here, are made against responsible officials or non-officials and are found to be false, defamatory and contrary to public interests and deserving of rigorous imprisonment. At present, only simple imprisonment can be awarded for defamation under S. 500 I.P.C and people can make any allegations, however grave or irresponsible, and can, if convicted and sent to jail, peacefully eat the bread of idleness at public expense.
In the end, therefore, I set aside the order under S. 144 Cr. P.C passed by the learned Sub Divisional Magistrate of Vijayawada, as I consider that an order under S. 144, Cr. P.C was not warranted or called for or justified in the circumstances proved in this case.
N.T.R
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