Sec153 and Sec 505 - I.P.C.- An insight of the colonial law.

                                   

                                                           Sec 153 and Sec 505 IPC  

Section 153 and 153A provides for registration of a case against a person who gives a statement either in writing or orally that incites communal riots or provokes communal tension and enmity between communities. IT is punishable with imprisonment from 6 months to one year with fine. Section 505 punishes persons who spread rumor through their statement to cause public disorder with an imprisonment up to 3 years.

 So the major factor in sec 153 IPC is weather a riot was committed by the said provocation is the deciding factor.

(Exception) —It does not amount to an offence, within the meaning of this section when the person making, publishing or circulating any such statement, rumor or report, has reasonable grounds for believing that such statement, rumors or report is true and makes, publishes or circulates it 8[in good faith and] without any such intent as aforesaid.]

Under sec 505 the deciding factor is mensrea or motive or ill will if the person accused of sec 505 and 153 has no ill motive or has reason to believe that the statement made by him is true he cannot be charged.

The sec 153 and 505 were introduced by Britisher’s to suppress the voice of our Freedom Fighter.  They left but their draconian and colonial rules still exits.

The another major and binding factor is sanction

(3) The Central Government or the State Government may, before according sanction ⁴ [under sub-section (1) or sub-section (1A)] and the District Magistrate may, before according sanction under sub-section (1A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155.

The landmark judgment  Supreme Court Of India

BILAL AHMED KALOO Vs.STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 06/08/1997,BENCH:A. S. ANAND, K. T. THOMAS

Gives an insight of what is the section about if we read the judgment we get the core requirement of sec 153 and 505 ipc

This Court has held in Balwant Singh and another vs.S tate of Punjab (1995 3 SCC 214) that mens rea is a

necessary ingredient for the offence under Section 153A.M ens rea is an equally necessary postulate for the offenceunder Section 505(2) also as could be discerned from the words "with intent to create or promote or which is likely to create or promote" as used in that sub-section. The main distinction between the two offences is that publication of the word or representation is not necessary under the former, such publication is sine qua non under

Section 505. The words "whoever makes, publishes or

circulates" used in the setting of Section 505(2) cannot be

interpreted disjunctively but only as supplementary to each

other. If it is construed disjunctively, any one who makes a

statement falling within the meaning of Section 505 would,

without publication or circulation, be liable to conviction.

But the same is the effect with Section 153A also and then

that Section would have been bad for redundancy. The

intention of the legislature in providing two different

sections on the same subject would have been to cover two

different fields of similar colour. The fact that both

sections were included as a package in the same amending

enactment lends further support to the said construction.

Yet another support to the above interpretation can be

gathered from almost similar words used in Section 199 of

the Penal Code as "whoever by words.........makes or

publishes any imputation......."

In Sunilakhya Chowdhury vs. H.M. Jadwet and another

(AIR 1968 Calcutta 266) it has been held that the words

"makes or publishes any imputation" should be interpreted as

words supplementing to each other. A maker of imputation

without publication is not liable to be punished under that

section. We are of the view that the same interpretation is

warranted in respect of the words "makes, publishes or

circulates" in Section 505 IPC also.

The common feature in both sections being promotion of feeling of enmity, hatred or ill-will "between different" religious or racial or language or regional groups or castes and communities it is necessary that atleast two such groups or communities should be involved. Merely inciting thef elling of one community or group without any reference to any other community or group cannot attract either of the two sections.

The Landmark judgment Kedar Nath Singh vs State Of Bihar on 20 January, 1962. which also gives an insight of the law.

Article 19(1) and article 19(2) also plays an important role in deciding cases of sec 153 and 505 ipc.

The Madras high court in the case relating to Perumal Murugan’s ‘One part woman’ has observed,

“there is bound to be a presumption in favor of free speech and expression as envisaged under Article 19(1) (a) of the Constitution of India unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India.”

The Madras high court in Sony Pictures vs state of Tamil Nadu that related to the ban on the movie ‘Da Vinci Code’. The judge observed,

“When the State has a duty to prevent all threats of demonstrations and processions which amount to intimidating the ko right of freedom of expression, it cannot plead its inability to handle breach of peace if and when it arises.”

The Last few years have witnessed the misappropriation of Archaic Laws against people who were  critical of the govt, even though the supreme court recommended the Brandenburg test which says there must be an imminent danger to justify curtailing Freedom of Speech

 

 Bishwa Kumar Jain # B com (h). L.L.B. DIP Cyber Law. Member International Arbitration U.K. Practice Advocate Supreme Court and High Court of Delhi.#9582584584