Judgment

MAHAJAN J.: This appeal has been preferred by the State of Bihar against the judgment of a special Bench of the High Court of Judicature at Patna allowing the application of the respondent under section 23 of the Indian Press (Emergency Powers) Act, XXIII of 1931. It appears that the petition was argued, by both the sides as it was one made under Article 226 of the Constitution.

2. The respondent was the keeper at all relevant times of the Bharati Press at Purulia,. A pamphlet under the heading "Sangram" was printed at the said press and is alleged to have been circulated in the town of Purulia in the district of Manbhum. The Government of Bihar considered that the pamphlet contained objectionable matter of the nature described under section 4 (1) of the Indian Press (Emergency Powers) Act and required the press to furnish security in the sum of Rs. 2,000/-under section 3 (3) of the Act by the 19th September 1949. On the 26th September 1949, the respondent applied to the High Court under section 23 for setting aside the above order. This application was allowed by the majority of the Judges constituting the Bench. Shearer J. was of the view that the application should be dismissed.

3. Several objections were raised to the validity of the order passed by the Bihar Government but it is unnecessary to mention all of them. The two points which were seriously pressed before the High Court were that the leaflet did not contain any words or signs or visible representations of the nature described in section 4 (1) of the Act, and that the provision of section 4 (1) of the Act were inconsistent with Article 19 (1) of the Constitution and as such void under Article 13. The High Court reached the conclusion that the pamphlet did come within the mischief of the Act Sarjoo Prasad J., with whom Ramaswami J. concurred, on the construction of the decisions of this Court in ROMESH THAPAR v. STATE OF MADRAS , 1950 S.C.R. 594, and BRIJ BHUSHAN v. STATE OF DELHI , 1950 S. C. R. 605, found, though with some reluctance, that section 4 (1) (a) of the Act was repugnant to the Constitution and therefore void. Shearer J. however held that pamphlet was a seditious libel and that there was nothing in the two decisions of the Supreme Court referred to above which compelled the court to hold the provisions of section 4 (1) (a) of the Act to be void.

4. In my opinion, Shearer J. was right in the view that there is nothing in the two decisions of this Court which bears directly or indirectly on the point at issue in the present case and that both Sarjoo Prasad and Ramaswami JJ. were in error in holding that these decisions were conclusive on the question of the invalidity of clauses (a) and (b) of section 4 (1) of the Act. Towards the concluding part of his judgment, Sarjoo Prasad J. observed as follows :-

"I am compelled to observe that from the above discussions of the Supreme Court judgments, it follows logically that if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity inasmuch as he would claim the privilege of exercising his fundamental right of freedom of speech and expression. Any legislation which seeks or would seek to curb this right of the person concerned would not be saved under Article 19 (2) of the Constitution and would have to be declared void. This would be so, because such speech or expression on the part of the individual would fall neither under libel nor slander nor defamation nor contempt of court nor any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State. I cannot with equanimity contemplate such an anomalous situation but the conclusion appears to be unavoidable on the authority of the Supreme Court judgments with which we are bound. I, therefore, wish that my decision on the point would sooner than ever come to be tested by the Supreme Court itself and the po