Holding

The appellants' conduct did not attract Sections 124A or 153A of the IPC; their convictions were set aside.

Summary

Balwant Singh and Bhupinder Singh, two government employees, were arrested in Chandigarh on 31 October 1984 for shouting slogans such as "Khalistan Zindabad" and "Raj Karega Khalsa" on the day Prime Minister Indira Gandhi was assassinated. They were convicted under Sections 124A (sedition) and 153A (promoting enmity) of the Indian Penal Code and sentenced to one year of rigorous imprisonment with a fine. On appeal, the Supreme Court examined whether the occasional, isolated slogans, which elicited no public reaction, satisfied the elements of either offence, particularly the requisite mens rea to incite disorder or enmity. The Court held that the slogans, raised only a few times by two individuals, did not create any disturbance, threat to the government, or hatred between communities, and the prosecution failed to prove the necessary intention. Consequently, the convictions under both sections were set aside and the appeal was allowed.

Issues considered

Whether the occasional raising of slogans without public reaction constitutes an offence under Section 124A IPC (sedition).
Whether the same conduct amounts to an offence under Section 153A IPC (promoting enmity between communities).
Whether the prosecution must establish mens rea or intention to cause disorder or enmity for conviction under the said provisions.
Whether the absence of independent eyewitnesses affects the validity of the conviction.

Legislation cited

Indian Penal Code, 1860s. 124A, s. 153A
Terrorist Affected Areas (Special Courts) Act, 1984s. 14

Subjects

seditionIPC 124AIPC 153Apromoting enmitymens reapublic orderfreedom of speechSupreme Courtconviction set asideslogans

Judgment

;
)

BALWANT SINGH AND ANR. A
v.
STATE OF PUNJAB

MARCH 1, 1995
B
[DR. AS. ANAND AND FAIZAN UDDIN, JJ.)

Indian Penal Code, 1860-Sections 124A and 153A-Sedition--Raising
slogans casually couple of times by some persons-No reaction from
public-Offence u/s 124A or 153A not made out.
c
The appellants who are government servants were arrested for rais-
ing slogans like 'Khalistan Zindabad', 'Raj Karega Khalsa', and Hinduan
Nun Punjab wi Chon Kadh Ke Chhadange Hun Manka Aya Hai Raj
Kayam Karan Da' on the day Smt. Indira Gandhi, the then Prime Minister
of India was assassinated. Both appellants raised the slogans together. The D
first slogan was raised five or six times, the second two or four times and

- I
the third only once or twice. They did not raise any slogans after their
arrest. The appellants were tried for offences u/s 124A and 153A of the
· Indian Penal Code. The prosecution examined police constables who con-
ceded that the people in general did not gather on hearing the slogans.
E
The appellants submitted that the prosecution had not been able to
establish the case against them beyond a reasonable doubt. It was argued
that though the occurrence had taken place in a busy place, no independent
person had been associated at the time of arresL Relying on the evidence
. . ..;, of the Munshi of the District jail the appellants contended that the entire F
case again~ ; them was a made up affair.

The respondents submitted that keeping in view the tension which
had been generated on the date of the assassination of the former Prime
Minister SmL Indira Gandhi, the raising of the slogans by the appellants
attracted the p~ovisions of Section 124A IPC and 153A of the IPC. Also, G
as no animosity or reason to falsely implicate the appellants was attributed
to PWs 2 and 3, their evidence was re~iable even though no independent
witness had been associated.

Allowing the appeal, this Court H
411
412 _- SUPREMECOURTREPORTS J1995) 2 S.C.R.

A .. HELD : 1.1 The fact and circumstances of this case unmistakably
show that there was rm disturbance or semblance of disturbance of law
-t- '
and order or of public order or peace and tranquility in the area from '
where the appellant were apprehended while raising slogans. The intention
to cause disorder or incite people to violence is the sine qua non of the
B offence under Section 153A IPC and the prosecution has to prove the
existence of mens rea in order to succeed. In this case, the prosecution has
not been able to establish any mens rea on the part of the appellants, as
envisaged by the provisions of Section 153A IPC. (417-G-H, 418-A]

1.2 Raising of some slogans only a couple of times by two lonesome
C appellants, which did not evoke any response or reaction from the public
cannot attract the provisions of S.124A or S.153A IPC. Some more overt
act was required. The police officials exhibited lack of maturity and
sensitivity in arresting the appellants. The arrest could have created a law
aDfl order situation, keeping in view the tense situation prevailing on the
date of the assassination. Raising of some lonesome slogans, a couple of
D times by two individuals, without anything more, did not constitute any
threat to the Government of India nor could the same give rise to feelings
of enmity or hatred among different communities or religious or other
groups. Conviction and sentence for the offences under Section 124A and
153A IPC, cannot be sustained. (419-C-F]
E CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
266of1985.

From the Judgment and Order dated 2.3.85 of the Special Court
Chandigarh in Crl. C. No. 6/2 of 14.1.1985.
F V.M. Tarkunde, Krishan K. Gogna and AK. Panda for the Appel-
lants.

R.S. Suri and Rohit Aggarwal for the Respondents.

:G The following Order of the Court was delivered :

Balwant Singh, who was working as an Assistant in the office of
D.P.I. Punjab in Chandigarh and Bhupinder Singh serving as a Senior
Oerk in the Punjab School Education Board, Chandigarh, at the relevant
time, were on 31st October, 1984 at about 5.45 p.m. arrested from near
ff Neelam Cinema, Chandigarh and after completion of the investigation,
B. SINGH v. STAIBOFPB. 413

tried for offences under section 124-A and 153-A IPC. They were each A
sentenced to suffer one year rigorous imprisonment and a fine of Rs. 500
on each of the two counts. In default of payment of fine, they had to
undergo three months further R.I. on each count. The substantive senten-
ces were to run concurrently. Through this appeal under Section 14 of the
Terrorist Affected Areas (Special Courts) Act, 1984 both of them have
challenged their conviction and sentence as recorded by the learned Judge
B
of the Special Court, Chandigarh on 2.3.1985.

The prosecution case against the appellants is that in a crowded in
front of the Neelam Cinema, on 31st October 1984, the day Smt. Indira
I
Gandh , the then Prime Minister of India was assasinated, after coming out C
~
from t teir respective offices after the duty hours, raised the following
\
slogan~

"l. Khalistan Zindabad

2. Raj Karega Khalsa, D
and

3. Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun
Mauka Aya Hai Raj kayam Karan Da."
E
The prosecution examined Constable Som Nath, PW2 and ASI Labh Singh
PW3, in support of its case besides PWl, who proved the order of sanction
for prosecution.

According to the testimony of Som Nath PW2 and Labh Singh PW3,
they had left the police station at about 5 p.m. or 5.15 p.m. and while they p
were patrolling in the area of the main market of Sector 17, Chandigarh,
they noticed both the appellants raising slogans, as noticed above. Both the
witnesses conceded that when slogans were being raised, the people in
general were going bout doing their jobs and they did not gather on hearing
the slogans but stated that some people went away out of 'fear'. In cross-
examination, Som Nath PW2 admitted that he coUid not name anyone or G
even suggest· whether any one out of the passer-by got afraid on hearing
the slogans and fled away from the place. According to the witnesses, both
the appellants had raised the slogans together. Though PW2 could not state
as to how many times each of the three slogans was raised by the appel-
lants, PW3 ASI Labh Singh admitted in the cross examination that the H
414 SUPREME COURT REPORTS [1995] 2 S.C.R.

A slogans "Khalistan Zindabad" was raised about five or six times while the
second slogan "Raj Karega Khalsa" was raised two or four times and that i
the third slogan was raised only once or twice. A~I Labh Singh PW also <;
admitted that the slogans had been raised by the appellants before they
were arrested and that they did not raise any slogans afterwards. ASI Labh
Singh PW, however, added that the appellants raised slogans while they
B were being apprhended once or twice and to the same effect is the
statement made by PW2 Som Nath, who, however, was confronted with his
police statement recorded under Section 161 Cr. P.C., wherein he had not
mentioned that the appellants raised any slogan while being apprhended. ""'"'
The appellants in their statement recorded under Section 313 Cr. P.C.,
c denied the prosecution allegations against them. According to Balwant
""\

y
Singh, Bhupinder Singh, appellant came to his office at about 4.30 p.m. and
they left together after he finished his day's duty at about 5 p.m. That while
they were proceedings towards the bus stand, in order to take a bus to go
to Mohali where they reside, they met Mewa Singh DW2 and Surender Pal
Singh DW3 near the fountain with whom they exchanged 'Sat Siri Akal'.
D
Being an Amritdhari Sikh, he was wearing a kirpan. That near Neelam
Cinema Dy. S.P. Sudhir Mohan and Inspector Baldev Singh caught hold of
them, presumably because he was wearing a kirpan and both of them had \-
not tied their beards. That the police officials took them to the police
station in Sector 17 in their jeep. ASI Labh Singh was present at the police
E station attending to the telephone. On their enquiry, as to why thy had been
brought to the police station and why they were being detained, ASI Labh
Singh told him that only the senior officers who had brought them to the
police station could give them an answer to their question. Bhupinder
Singh, appellant made a substantially similar statement.
F '>-...
Both Mewa Singh DW2, a Draftsman working in the Punjab Housing
Board and Surender Pal Singh DW3, a Junior Accountant working with
the Punjab Housing Board, corroborated the statement made by the ap- ~-
pellants and stated that they had met the appellants after the office hours
near the Neelam Cinema and had exchanged 'Sat Sri Akal' with them. They
G stated that in their presence, the Dy. S.P. and Inspector Baldev Singh
arrested the appellants and took them to the police station in their jeep.
That later on.they followed them to the police station but when they could r-
not get any information as to· why the appellants had been taken to the
police station, they informed the family members of the appellants. Both
H the defence witnesses stated that the appellants were not raising ariy
B. SINGH v. STATEOFPB. 415

slogans either before or at the time of their arrest and this part of their A
testimony was not challenged in the cross examination at all.

At the time of arrest of the appellants, the personal search of the
appellants was taken and the personal search memos were prepared. In
the personal search memo of Balwant Singh, the only two articles which B
are shown to have been recovered are: one watch HMT and one gold ring.
There is no mention of any kirpan having been seized. After the arrest of
the appellants, the police produced them before the Ilaqa Magistrate when
they were remanded to judicial custody. DWl Shitla Prashad, Munshi,
District Jail, Burail deposed that on November 1, 1984, Balwant Singh
appellant was admitted to the District Jail and that; C

"At that time he was wearing a kirpan on his person which was
taken off and kept in safe custody at the time of his admission into
jail and that kirpan is still lying deposited with us. I have brought
that kirpan." D

Both PW2 and PW3, had however, stated in their statements that they did
not see Balwant Singh wearing any kirpan and that no kirpan was taken
into possession from him.

Mr. V.M. Tarkunde, the learned senior counsel appearing for the E
appellants submitted that the prosecution has not been able to establish
the case against the appellants beyond a reasonable doubt. Learned Coun-
sel argued that though admittedly the occurrence had taken place in a busy
place, where number of independent persons were available, prosecution
had not associated any independent person at the time of arrest of the F
appellants and that was a serious infirmity in the case. Mr. Tarkunde then
submitted that the very fact that both the police witnesses, Constable Som
Nath and ASI Labh Singh made unsuccessful effort to conceals that
Balwant Singh was carrying a kirpan, which fact stands established from
the evidence of DWl Munshi of the District Jail at Burail, it could be safely
inferred that the entire case against the appellants, was a made up affair G
and not based on facts. The prosecution witnesses were guilty of giving
false statements. Learned counsel then, in the alternative, went on the
submit that even if the prosecution case to the effect that the appellants
had raised the three slogans was accepted, no offence under Section 124A
IPC or 153A IPC could be said to have been made out. H
416 SUPREME COURT REPORTS [1995] 2 S.C.R.
I
A Learned counsel for the State, on the other hand, submitted that
keeping in view the tension which had been generated on the date of the
assassination of the former Prime Minister - Smt. Indira Gandhi, the raising
of the three slogans by the appellants attracted the provisions of Section
124A IPC and 153A IPC and the mere fact that no independent witness
B was associated, could not detract from the reliability of the evidence of ASI
Labh Singh and Constrable Som Nath. In this context, learned counsel
referred to the statement of PW3 Labh Singh who deposed that he was
unable to associate any of the independent persons from the public inspite
of his making efforts because none was willing to associate himself.
Learned counsel urged that nothing has been brought out on the record to
C show that either PW2 and PW3 had any animo:;ity or reason to falsely
implicate the appellants and that their testimony inspired confidence.

Section 124A IPC reads thus:

"124A. Sedition - whoever by words, either spoken or written, or
D by signs, or by visible representation, . or otherwise, brings or
attempts to bring into hatred or contempt, or excites or attempts
to excite disaffection 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
.E 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
F measures of the Government with a view to obtain 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 ad-
G ministrative or other action of the Government without exciting or
attempting to excite hatred, contempt or disaffection, do not con-
stitute an offence under this Section."

A plain reading of the above Section would show that its application would
H be attracted only when the accused brings or attempts to bring into ha,tred
'
)

B.SINGH v.SfAIBOFPB. 417

or contempt or excites or attempts to excite disaffection towards the A
Government established by law in India, by words either written or spoken
or visible signs or representations etc. Keeping in view the prosecution
evidence that the slogans as noticed above were raised a couple of times
only by the appellant and that neither the slogans evoked a response from
any other person of the Sikh community or reaction from people of other B
communities, we find it difficult to hold that upon the raising of such casual
slogans, a couple of times without any other act whatsoever the charge of
sedition can be founded. It is not the prosecution case that the appellants
were either leading a procession or were otherwise raising the slogans with
'
'
~
the intention to incite people to create disorder or that the slogans in fact
. created any law and order problem. It does not appear to us that the police C

' should have attached much significance to the casual slogans raised by two
appellants, a couple of times and read to much into them. The prosecution
"- has admitted that no disturbance, whatsoever, was caused by the raising of
the slogans by the appellants and that inspite of the fact that the appellants
raised the slogans a couple of times, the people, in general, were un-af- D
fected and carried on with their normal activities. The casual raising of the
slogans, once or twice by two individuals alone cannot be said to be aimed
at exciting or attempt to excite hatred or disaffection towards the Govern-
ment as established by law in India. Section 124A IPC, would in the facts
and circumstances of the case have no application whatsoever and would
not be attracted to the facts and circumstances of the case. E

In so far as the offence under Section 153A IPC is concerned, it
provides for punishment for promoting enmity between different groups on
grounds of religion, race, place of birth, residence, language, caste or
community or any other ground whatsoever or brings about disharmony or p
feeling of hatred or ill-will between different religious, racial, language or
regional groups or castes or communities. In our opinion only where the
written or spoken words have the tendency or intention of creating public
disorder or disturbance of law and order or effect public tranquillity, that
the law needs to step in to prevent such an activity. The facts and cir-
cumstances of this case unmistakably show that there. was no disturbance G
or semblance of disturbance of law and order or of public order or peace
and tranquillity in the area from where the appellants were apprehended
while raising slogans on account of the activities of the appellants. The
intention to cause disorder or incite people to violence is the sine qua non
of the offence under Section 153 A IPC and the prosecution has to prove H
\
\.__

418 SUPREME COURT REPORTS [1995] 2 S.C.R.

A the existence of mens. rea in order to succed. In this case, the proseeution
has not been able to establish any mens rea on the part of the appellants,
as envisaged by the provisions of Section 153A IPC, by their raising causally •
the three slogans a couple of times. The offence under Section 153A IPC
is, therefore, not made out.

B On facts, we find that the prosecution witnesses PW2 and PW3 have
not spoken the whole truth. Both the prosecution witnesses PW2 and PW3
made a deliberate attempt to conceal the existence of kirpan on the person -"-
of Balwant Singh at the time of his arrest, which fact stands amply proved
from the evidence of DWl. The trial court while dealing with this aspect --y ·
C of the case observed :
"On 1.11.1984 the accused were produced before the Magistrate.
No order of the Magistrate has been produced to show that
Balwant Singh accused was wearing a kirpan when he appeared
before him. It was only thereafter that the accused were sent to
D jail. It, therefore, appears that the kirpan was supplied to Ba/want
Singh after he had been remanded by the Magistrate and was on his
way to the jail." (Emphasis ours)

We are unable to appreciate this reasoning. The trial court appears
E to have made out a case which was neither spoken to nor relied upon either
by the prosecution or the defence. It is nobody's case that Balwant Singh
• and· been supplied with the kirpan when he was on his way to the jail. It
defies logic to think that some one from the. public would have such as easy
access to a person in custody of the police so as to be able to arm him with
as kirpan, without the police escort knowing about it! It is not permissible
F for the trial court to make such an inference on assumptions without any
evidence on the record. The Court must confine itself to the evidence to
decide the case and not base its opinion on surmises and conjectures. We
also regret to note that the trial court while recording the conviction
observed:
G "To conclude, therefore, the accused shouted slogans 'khalistan
zindabad', Hindustan Murdabad', Hinduan Nun Punjab Chon
Kadh Ke Chhadange Hun Mauka Aya Hai Raj Kayam Karan Da',
in the piazza of Sector 17 market which is frequented by people
of both the principle communities i.e. Hindus and Sikhs at about
H 5.45 p.m. on the day when the beloved Prime Minister of India
J

B.SINGH v.STATEOFPB. 419

Smt. Indira Gandhi was riddled with bullets. A
.It is not the prosecution case that either of the appellants had
shouted the slogan 'Hindustan Murdabad'. On what material did the
learned Judge find that the appellants had shouted that particular slogan
belies our comprehensions. Obviously, for convicting the appellants, the
trial Judge also pressed into aid the allegation that the appellants had B
shouted. 'Hindustan Murdabad', which is nobody's case. The learned trial
/ Judge, to say the least, seems to have drawn upon his imagination a course
not permissible for a Court of Law.

It appears to us that the raising some slogan only a couple of times C
by the two lonesome appellants, w'hich neither evoked any response nor
any reaction from any one in the public can neither attract the provisions
of Section 124A or Section 153A IPC. Some more overt act was required
to bring home the charge to the two appellants, who are Government
servants. The police officials exhibited lack of maturity and more of sen-
sitivity in arresting the appellants for raising the slogans - which arrest - D
and not the casual raising of one or two slogans - could have created a law
and order situation, keeping in view the tense situation prevailing on the
date of the assassination of Smt. Indira Gandhi. In situations like that, over
sensitiveness some times is counter productive and can result in inviting
trouble. Raising of some lonesome slogans, a couple of times by two E
individuals, without anything more, did not constitute any threat to the
Government of India as by law established nor could the same give rise to
feelings of enmity or hatred among different communities or religious or
other groups.

In our opinion, for what we have stated above, the prosecution has F
- . _./
not succeeded in establishing the case against the appellants beyond a
reasonable doubt. Their conviction and sentence for the offences under
Section 124A and 153A IPC, cannot be sustained. This appeal accordingly
succeeds and is allowed. The conviction and sentence of the appellants is
set aside. The appellants are on bail. Their bail bonds shall stand dis- G
. charged.

A.G. Appeal allowed.