criminal law part 1 (indian penal code), Study notes of Law

Download criminal law part 1 (indian penal code) and more Study notes Law in PDF only on Docsity! PART A - WAGING WAR WAGING WAR AGAINST THE GOVERNMENT OF INDIA Section 121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.--Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine. Illustration A joins an insurrection against the Government of India. A has committed the offence defined in this section. "Whoever' The term 'whoever' in the section indicates that the provisions of this section are applicable both to citizens and foreigners. Everyone who wages or attempts or abets war against the Government of India is liable un-der this section. A citizen owes allegiance to the state by birth or naturalisation, and a foreigner due to the fact that he is permitted to reside within the territory of the state. The tacit condition for a foreigner, who has been given permission to reside in the country, is that just as he relies upon the state for protection, so also the state expects him to subject himself to the laws of the land.2 "Waging War' A reading of the section reveals that the section deals with three aspects of waging war. Each aspect deals with a different stage of waging war against the government: (1) abetment; (2) attempt; (3) the act ual war. A unique feature of this section is that it places at par all the three stages of waging war. Whether it is the at-tempt to commit the offence or the abetment of the offence or whether the offence has actually been com-mitted, the section imposes the same punishment. Under the general law, a distinction is made for the pur-poses of punishment between abetment, which has succeeded and abetment which has failed. However, as far as s 121 is concerned, the legislature treats both in the same manner. The offence of abetment under this section is a distinct and complete offence. The reasoning behind treating an abetment which has succeeded and an abetment which has not succeed-ed on par, is because the crime is treated as the highest of offences against the state. It has also to do with the peculiarity of the offence. If the offence of waging war against the state is successfully committed, the criminal is secure from punishment because the government itself is subverted. In respect of other offences, the threat to the offender is after the completion of the offence. For instance, a murderer is in a more precar- ious condition after he has killed his victim; or a thief after he has taken away the object. But, an offender under this section is totally out of danger if he successfully wages war against the government and dislodges the government. The penal law becomes impotent against a successful rebel. Therefore, it was thought fit that even the beginning stages of a rebellion must be treated with great harshness and not treated under the ordinary law of abetment. The expression 'waging war' means waging war in the manner usual in war.3 It imports a person arraying himself in defiance of the government in like manner and by like means as a foreign enemy would do, having gained footing in the realm. The waging of war is the attempt to accomplish by violence any purpose of a public nature.4 A deliberate and organised attack upon the government forces and government offices amounts to a waging of war.5 Intention Intention to wage war against the government is the most essential ingredient under this section. So, it is not sufficient to show that the accused have attempted to obtain arms, ammunition, etc. The prosecution must also show that the seizure of arms was part and parcel of a larger operation to overthrow the state. If the acquiring of arms and the organising of people is for personal advantage or for a private purpose, then it will not come under the provisions of this section. A pledge to overthrow capitalism and private ownership and to work for the establishment of a socialist state does not amount to waging war against the state, because every person is entitled to propagate the political faith of his choice.6 Sedition and Abetting War The offences of sedition and abetting war are separate and distinct. As long as a man only tries to incite persons and inflame feelings of hatred against the state, it amounts to sedition. It is only when this incitement is translated into clear act ion, that the offence of abetment is committed. Mere making of speeches threat-ening to wage war, will not amount to abetment. Conspiracy to Wage War 121A. Conspiracy to commit offences punishable by section 121.--Whoever within or without India con-spires to commit any of the offences punishable by section 121, or conspires to overawe, by means of crim-inal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life or with imprisonment of either description which may extend to ten years, and shall also be liable to fine. Explanation.--To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof. Receiving Property Taken by War or Depredation Section 127. Receiving property taken by war or depredation mentioned in sections 125 and 126.--Whoever receives any property knowing the same to have been taken in the commission of any of the offences mentioned in sections 125 and 126, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and to forfeiture of the property so received. Section 127, IPC, punishes a person receiving any property obtained in war or in depredation. In order to establish an offence under this section it is necessary to prove that the person receiving the property was aware that it was property received in the commission of the offence of waging war against any Asiatic power in alliance with the Government of India or in the commission of depredation on territories of power at peace with the Government of India. PART B - ASSAULT ON HIGH OFFICIALS Section 124. Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power.--Whoever, with the intention of inducing or compelling the President of India, or Governor of any State, to exercise or refrain from exercising in any manner any of the lawful powers of such President or Governor, assaults or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of criminal force, or the show of criminal force, or attempts so to overawe, such President or Governor, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. This section, in ultimate analysis, is an extension of third clause of s 121A. It provides a deterrent sentence for assault or wrongful restraint of persons holding high office. The object of the section is to protect high officials so as to enable them to function freely without fear of personal harm in the course of discharge of their duties. PART C - ESCAPE OF A STATE PRISONER Section 128. Public servant voluntarily allowing prisoner of State or war to escape.--Whoever, being a public servant and having the custody of any State prisoner or prisoner of war, voluntarily allows such prisoner to escape from any place in which such prisoner is confined, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 129. Public servant negligently suffering such prisoner to escape.-- Whoever, being a public servant and having the custody of any State prisoner or prisoner of war, negligently suffers such prisoner to escape from any place of confinement in which such prisoner is confined, shall be punished with simple im- prisonment for a term which may extend to three years, and shall also be liable to fine. Section 130. Aiding escape of, rescuing or harbouring such prisoner.--Whoever knowingly aids or as-sists any State prisoner or prisoner of war in escaping from lawful custody, or rescues or attempts to rescue any such prisoner, or harbours or conceals any such prisoner who has escaped from lawful custody, or of-fers or attempts to offer any resistance to the recapture of such prisoner, shall be punished with imprison-ment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.--A State prisoner or prisoner of war, who is permitted to be at large on his parole within certain limits in India, is said to escape from lawful custody if he goes beyond the limits which he is allowed to be at large. Sections 128-130 are in respect of state prisoners. Section 128 makes it an offence for a public servant to voluntarily allow a prisoner of state or war to escape. It is punishable with imprisonment for life or imprison-ment up to 10 years and fine. Section 129 punishes a public servant who allows a state prisoner or a prison-er of war to escape due to his negligence. An offence under this section is punishable with simple imprison-ment for a term up to three years and fine. Section 130 punishes any person who knowingly aids or assists a state prisoner or prisoner of war to escape from lawful custody or harbours such a prisoner. It stipulates that in order to establish an offence thereunder, the person aiding or assisting should have knowledge that the person assisted is a state prisoner or prisoner of war. The punishment under this section may extend to im-prisonment for life or imprisonment for a term up to 10 years with fine. Sections 128 and 129 are in respect of public servants, while s 130 is applicable to all persons. The term 'State prisoner' refers to a person who has been arrested to maintain peace and tranquility with other friendly nations and for the security of the Indian state. A ‘prisoner of war' is one who in war is taken in arms. Those who are not in arms, or who being in arms submit and surrender themselves, are not prisoners of war. They are treated merely as prisoners until the termination of hostilities. PART D - SEDITION INTRODUCTION Section 124A deals with law of sedition in India. It was originally s 113 8 of Macaulay's Draft Penal Codeof 1837. It was proposed to be included in the Penal Code. However, for unaccountable reasons, it was omitted from thePenal Code when the IPC was enacted in 1860. However, the need for such a provision was felt in 1870 when s 124A 9was placed in the statute book by the Indian Penal Code (Amendment) Act 1870 (Act XXVII of 1870). It was, however, later on, replaced, with minor changes, by s 124A of the Indian Penal Code (Amendment) Act 1898 (Act IV of 1898).10After some inconsequential changes made by the Adoption of Laws Order issued in 1937, 1948, and 1950 and by the Part B States (Law) Act 1951, the present s 124A reads as under: Section 124A. Sedition.--Whoever, by words, either spoken or written, or by signs, or by visible represen-tation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite dis-affection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1.--The expression "disaffection" includes disloyalty and all feelings of enmity. Explanation 2.--Comments expressing disapprobation of the measures of the Government with a view to ob-tain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.--Comments expressing disapprobation of the administrative or other action of the Govern-ment without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. A careful reading of s 124A, in the backdrop of evolution in the Common Law of sedition and its entry into the IPC, reveals that the provisions of s 124A, as observed by Sinha CJ, are based on the principle that ‘every State, whatever its form of Government, has to be armed with the power to punish those who by their con-duct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder'.11 The very existence of the state, obviously, will be in jeopardy, if the government by law is subverted. Hence, the continued existence of the gov-ernment is an essential condition for the stability of the state. Though the provisions of s 124A of the IPC are based on the Common Law of sedition, the offence of sedi-tion, as known and understood in England, is a more comprehensive term than what is contained in s 124A, IPC. What is embodied in the latter section is only one aspect of the law of sedition, namely, seditious libel or publication of matter calculated to bring the sovereign or the government into hatred or to excite disaffection towards them. MEANING OF 'SEDITION' "Brings or Attempts to Bring into Hatred or Contempt’ As per s 124A, words either spoken or written signs, visible representation or other means should be exer-cised in such a manner as to bring or attempt to bring into hatred or contempt towards the government es-tablished by law. What is contemplated under this section is not the actual causing of hatred or contempt, but even an attempt to do so. So, ultimately, whether he act ually fails or succeeds is not material. It is sufficient if he even attempts at causing hatred or contempt. However, the law is not concerned with just the mere feeling of hatred or contempt which may lie in the hearts of persons. Obviously, the law cannot fathom the innermost feelings of any person and punish them for the same. However, the law steps in, when this inner feeling of hatred or contempt excites disaffection against the state.24 ‘Excite Disaffection’ Explanation 1 to the section states that 'disaffection' includes disloyalty and all feelings of enmity. The term ‘disaffection’ has been the subject matter of considerable interest and controversy in courts. Most of the judgments are all pre- independence ones. However, the debate was finally put to rest by the Supreme Court in Kedar Nath v State of Bihar .25 In this case, a Constitutional Bench of the Supreme Court, after exhaustive discussion of the case law, authoritatively laid down as to what is the meaning of the words, ‘excite disaffec-tion'. In this case, the accused was charged for sedition for making the following speech: Today, the dogs of the CID are loitering around Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. Today, these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people today. The blood of our brothers-- mazdoors and Kisans--is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the people's court along with these Congress goondas. On the strength of the organisation and unity of Kisans and mazdoors, the Forward Communist Party will expose the black deeds of the Congress goondas, who are just like the Britishers. Only the colour of the body has changed. They have today established a rule of lathis and bullets in the country. The Britishers had to go away from this land. They had airplanes, guns, bombs and other weapons with them. The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a government of the poor and the down- trodden people of In-dia. It will be a mistake to expect anything from the Congress rulers. They (Congress rulers) have set up Vinoba Bhave in the midst of the people by causing him wear a langoti in order to divert the people's attention from their mistakes. To-day, Vinoba is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell Vinoba and advise his agents, 'you should understand it that the people cannot be deceived by this Yajna, illusion and fraud of Vinova'. I shall advise Vinoba not to become a puppet in the hands of Congressmen. Those persons, who understand the Yajna of Vinoba, realise that Vinova is an agent of the Congress government. I tell you that this Congress Government will do no good to you. I want to tell the last word even to the Congress tyrants, "You play with the people and ruin them by entangling them in the mesh of bribery, black marketing and corruption. Today the children of the poor are hankering for food and you Congressmen are assuming the attitude of Nawabs sitting on the chairs’. The Supreme Court traced the entire case law on the matter. The first case in India that arose under the sec-tion was Queen Empress v Jogendra Chunder Bose .26 At the time, the jury system was prevalent in India. The then Chief Justice of the Calcutta High Court, Sir Comer Petheram, explained to the jury the meaning of ‘disaffection’ in the following words: Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply dis-approval. It is quite possible to disapprove of a man's sentiments or action and yet to like him. The meaning of the two words... If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed, a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers of readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.”” In Queen Empress v Bal Gangadhar Tilak ,28 Strachey J of the Bombay High Court explained the law to the jury in these terms: It means hatred, enmity, dislike, hostility, contempt and every form of ill- will to the Government. 'Disloyalty' is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. You will observe that the amount or intensity of the disaffection is ab-solutely immaterial except perhaps in dealing with the question of punishment... if a man excites or attempts to excite feelings of disaffection great or small, he is guilty under this section.” The Full Bench of the Allahabad High Court in Queen Empress v Amba Prasad ,30 interpreted the word 'dis-affection' not as meaning mere absence or negation of love or goodwill, but a positive feeling of aversion, which is akin to ill-will, a definite insubordination of authority or seeking to alienate the people and weaken the bond of allegiance, a feeling which tends to bring the government into hatred and discontent, by imputing base and corrupt motives to it. However, the Federal Court of India, in Niharendu Dutt Majumdar v King Emperor ,31 struck a different note. Sir Maurice Gwyer CJ, speaking for the court, held that the gist of the offence of sedition is incitement to vio-lence; mere abusive words are not enough. The act s or words complained of must incite public disorder or must cause reasonable anticipation or likelihood of public disorder in order to constitute 'disaffection'. He observed: ‘Government established by law' is the visible symbol of the state. The very existence of the state will be in jeopardy if the government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State. That is why 'sedition', as the offence in section 124A has been characterized, comes under Chapter VI, relating to offences against the State. ... [A]ny written or spoken words, etc, which have implicit in them, the idea of subverting Government by violent means, which are compendiously included in the term 'revolution,' have been made penal by the section... [D]isloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or act s of Government, or its agencies, so as to ame-liorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.” ‘Expressing Disapprobation'--Explanations 2 and 3 The word 'disapprobation' means disapproval. Explanations 2 and 3 provide that as long as a person does not excite or attempt to excite hatred, contempt or disaffection, then expressing disapproval of the act s of the government in order to bring about change by lawful means or criticising or disapproving the administra-tion, does not constitute an offence under this section. In other words 'commenting in strong terms upon the measures or acts of the government or its agencies, so as to ameliorate the condition of the people or to se-cure the cancellation or alteration of these act s or measures by lawful means',40 is not attracted by this sec-tion. The purpose of the explanations is to give adequate protection from penal action to freedom of speech and expression. It is for the purpose of giving greater latitude to the media and others to openly criticise the gov-ernment and the ministers. In a democratic country, criticism of governmental measures and administrative act ion are to some extent unavoidable; they are made for the purpose of enlisting popular support and in considering the effect of such criticism, no serious notice ought to be taken of the crude, blundering attempts or rhetorical exaggerations by which nobody is likely to be impressed. With the change of times, the effect of criticism of governmental measures and administrative action also changes what was damaging contempt or hatred of a bureaucratic government is not so of a popular government--a government which can neither afford to be hypersensitive nor impervious to criticism.41 CONSTITUTIONAL VALIDITY OF Section 124A After the Constitution of India came into operation, the constitutional vires of the provisions of s 124A of the IPC was assailed on the ground that it contravenes the ‘freedom of speech and expression’ guaranteed un-der art 19 of the Constitution of India . In Tara Singh Gopichand v State ,42 in which for the first time the constitutional validity of s 124A was put to judicial scrutiny, it was contended that the section goes against the letter of spirit of art 19(1)(a) of the Con-stitution that guarantees the freedom of speech and expression. The East Punjab High Court declared the section ultra vires to the Constitution as it curtailed the freedom of speech and expression in a manner not permitted by the Constitution. The court was of the opinion that s 124A has no place in the new democratic pattern of polity adopted by India. It observed: India is now a sovereign democratic state. Governments may go and be caused to go without the foundations of the State being impaired. A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about.” However, subsequently, the Constitution First (Amendment) Act, 1951,44 added two words of wide amplitude, namely, ‘in the interest of' and 'public order' in art 19(2) dealing with the restrictions that can be put through law on the freedom of speech and expression guaranteed under art 19(1)(a). Nevertheless, the Allahabad High Court, in spite of the changes brought in art 19(2) of the Constitution, in Ram Nandan v State of Uttar Pradesh ,45 held that s 124A imposed restrictions on the freedom of speech and expression not in the interest of general public and thereby infringed the fundamental right of freedom of speech. It, therefore, declared s 124A as ultra vires to the Constitution as it cannot be saved by the expres-sion 'in the interest of public order'.46 However, a Constitutional Bench of the Supreme Court, through its pronouncement in Kedar Nath v State of Bihar ,47 has put the judicial ambivalence to rest. Recalling that art 19(1)(a) of the Constitution guarantees the freedom of speech and expression and art 19(2) allows reasonable restrictions thereon ‘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 held that any law which is enacted ‘in the interest of public order' can be saved from the vice of constitutional invalidity. The court observed: ...[T]he security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the state, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine qua non of a demo-cratic form The Supreme Court quoted with approval the judgment of the Federal Court and said that if the interpretation of the offence of sedition is held in consonance with the views expressed by the Federal Court in the case in Niharendu Dutt's case, then the law of sedition under s 124A will be within the permissible limits laid down in cl (2) of art 19 of the Constitution. After discussing, with analysis, the thitherto judicial of Government that our Constitution has established... But, the freedom has to be guarded against becom-ing a licence for vilification and condemnation of the Government established by law, in words which incite violence or have a tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Govern-ment established by law or with the intention of creating public disorder.”® pronouncements on s 124A, the apex court opined that: But, Referring to the well-settled judicial practice that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the court has to lean in ... If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expres- sion...” ... If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the section would make it unconstitu-tional in view of article 19(1)(a) read with clause (2) (of article 19). favour of the former construction, the apex court ruled: The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturb-ance of public peace by resort to violence. ... [T]he explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government act ion, however strongly worded, would be within rea-sonable limits and would 275 imprisonment for a term which may extend to three years, to which fine may be added, or with fine’. However, Explanation was kept unaltered. For further details see, RB Tewari, 'Law of Sedition in India’, in Indian Law Institute, Essays on the Indian Penal Code, Indian Law Institute, New Delhi, 2005, p 281, et seq. 10 A comparative reading of the old and the current s 124A reveals that in the former the offence consisted in exciting or at-tempting to excite 'feelings of disaffection to the Government established by law' but in the latter bringing or attempting to bring into ‘hatred or contempt towards the Government established by law' is also made punishable. 11 Kedar Nath v State of Bihar AIR 1962 SC 955. 12 (1868) 11 Cox's Criminal Cases 44. 13 (1873) 16 Cox's Criminal Cases 355. 14 (1868) 11 Cox's Criminal Cases 44, at p 45. The Supreme Court also quoted with approval in Nazir Khan v State of Delhi AIR 2003 SC 4427, (2003) 8 SCC 461, (2003) Cr LJ 5021(SC) . 15 (1909) 22 Cox's Criminal Cases 1, p 3. 16 Stephen, Commentaries on the Law of England, vol IV, 1950, pp 141-142. 17 (1891) ILR 19 Cal 35. 18 (1897) ILR 22 Bom 112. 19 Ibid, p 135; but see, Queen Empress v Ramchandra Narain (1897) ILR 22 Bom 152. 20 See, Bilal Ahmed Kaloo v State of Andhra Pradesh AIR 1997 SC 3483, (1997) 7 SCC 431, (1997) Cr LJ 4091(SC) . 21 Balwant Singh v State of Punjab AIR 1995 SC 1785, (1995) 3 SCC 214. 22 (1909) Cr LJ 456 (Mad). 23 Raghubir Singh v State of Bihar AIR 1987 SC 149, at p 158. 24 (1906) Cr LJ 1 (Bom). 25 AIR 1962 SC 955. 26 (1891) ILR 19 Cal 35. 27 Cited in Kedar Nath v State of Bihar AIR 1962 SC 955, at para 12. 28 (1897) ILR 22 Bom 112. 29 Ibid, p 134. 30 (1897) ILR 20 All 55. 31 AIR 1942 FC 22. 32 Ibid, p 26. 33 LR 74 IA 89. 34 Queen Empress v Bal Gangadhar Tilak (1897) ILR 22 Bom 112, and Besant v Advocate-General of Madras (1919) ILR 43 Mad 146. 35 AIR 1995 SC 1785, (1995) 3 SCC 214. 36 AIR 1997 SC 3483, (1997) 7 SCC 431, (1997) Cr LJ 4091(SC) . 37 In 1915, Bal Gangadhar Tilak had filed a suit for defamation against Sir Valentine Chirol of the London Times. Sir Edward Carson, a leading member of the English Bar and a known terror as a cross-examiner, first agreed to appear for Tilak. But, later he returned the brief, changed sides and appeared for Valentine Chirol, when the case came up for hearing. 38 Kedar Nath v State of Bihar AIR 1962 SC 955. 39 Ibid, para 36. Dye 2h 2 ae a 22 Cae 2 Ee ee 2 ae ae 22 Ce 2 Eo ee 2 a 276 40 Queen Empress v Amba Prasad (1897) ILR 20 All 55. 41 Niharendu Dutt Majumdaar v Emperor AIR 1942 FC 22. AIR 1951 East Punjab 27. Ibid, p 29. The Amendment was necessitated by the divergent views expressed by the Supreme Court of India in Romesh Thappar v State of Madras AIR 1950 SC 124 and Brij Bhushan v State of Delhi AIR 1950 SC 129 regarding the scope of art 19(2) vis--vis the freedom of speech and expression. AIR 1959 All 101, (1959) Cr LJ 128(All) (FB). However, the Patna High Court in Debi Soren v State AIR 1954 Pat 254, held s 124-A is intra vires to the Constitution as the expression ‘in the interest of public order' appearing in art 19(2) of the Constitution is wide enough to encompass in it the provi-sions of s 124A.A view has also been expressed that s 124A is partly void and partly valid. In Indramani Singh v State of Mani-pur AIR 1955 Manipur 9, it has been held that s 124A which seeks to impose restriction on exciting mere disaffection or at-tempting to excite disaffection is ultra vires, but the restriction imposed on the freedom of speech and expression which makes it punishable to excite hatred or contempt towards the Government established by law in India is ultra vires. Kedar Nath v State of Bihar AIR 1962 SC 955. Ibid, para 37. Ibid, para 38. Ibid, para 38. Ibid, para 38. Nazir Khan v State of Delhi AIR 2003 SC 4427, (2003) 8 SCC 461, (2003) Cr LJ 5021(SC) . See, Law Commission of India, 'Forty-Second Report: The Indian Penal Code ', Government of India, 1971, para 6.8. A sim-ilar recommendation was also made with reference to ss 122 and 123, see para 6.9. Law Commission of India, ‘One Hundred and Fifty-Sixth Report: The Indian Penal Code, Government of India, 1997, para 7.08.