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PETITIONER: DALBIR SINGH AND OTHERS

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 06/02/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: 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 having- committed  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  dis- affection)  Act, 1953, did not infringe Art.’ (19)(1)(a)  of the Constitution and was intra vires.

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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. .

JUDGMENT: 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.

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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 Punjab-  State 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  con-               ferred 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

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             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  inte ntionally 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  en,sure               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

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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 indisciplined 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

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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 here- in  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 Ordinanoe.  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

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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 to permit learned Counsel to argue any  question before us in relation to the validity of  that rule. The appeal fails and is dismissed. Appeal dismissed, 36