Landmark Judgment on reservation policy of India

If I am asked by any one to name two things, which has destroyed
this country or rather, has not allowed the country, to progress in the
right direction, then the same is, (i) Reservation and (ii) Corruption. It is
very shameful for any citizen of this country to ask for reservation after
65 years of independence. When our Constitution was framed, it was
understood that the reservation would remain for a period of 10 years,
but unfortunately, it has continued even after 65 years of independence.
The biggest threats, today, for the country is corruption. The countrymen
should   rise   and   fight   against   corruption   at   all   levels,   rather   than
shedding   blood   and   indulging   in   violence   for   the   reservation.   The
reservation has only played the role of an amoeboid monster sowing
seeds of discord amongst the people. The importance of merit, in any
society, cannot be understated. The merit stands for a positive goal and
when looked at instrumentally, stands for “rewarding those actions that
are   considered   good”.   Then,   this   instrumental   nature   of   merit   that

should be given importance – emphasizing on and rewarding merit is a
means towards achieving what is regarded as good in the society. The
parody of the situation is that India must be the only country wherein
some of the citizens crave to be called backward. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6330 of 2015
With
SPECIAL CRIMINAL APPLICATION NO. 6339 of 2015

HARDIK BHARATBHAI PATEL THRO. HIS FATER BHARATBHAI NARSIBHAI
PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Dated;1-12-2015


1 Since the relief prayed for, in all the captioned writ applications, is
to   quash   the   selfsame   F.I.R.   lodged   with   the   D.C.B.   Police   Station,
Ahmedabad   city,   being   C.R.   No.I­90   of   2015,   those   were   heard
analogously and are being disposed of by this common judgment and
order. 
2 The applicants herein – original accused persons, have prayed for
the following reliefs:
“21(A)Be pleased to issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ, order or direction and to quash
and set aside the FIR lodged with D.C.B. Police Station, Ahmedabad City,
recorded as C.R.No.I­90/2015, qua the present petitioner;
(B) Be pleased to issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ, order or direction and issued
necessary   direction,   protecting   fundamental   rights   of   the   petitioner
including not to lodge frivolous FIRs against the petitioner on the basis of
the same materials in any other Police Station of the State of Gujarat for
the offence punishable under sections 121, 121A, 124A, 153A, 153B and
120B of Indian Penal Code, 1860, and if any such FIRs are recorded,
restrain   the respondents,  their  agents  and  servants  from  arresting  the
petitioner for the offences punishable under sections 121, 121A, 124A,
153A, 153B and 120B of Indian Penal Code, 1860, based on the same
material facts disclosed in the body of the aforestated FIR. 
(C)  Pending admission and final disposal of the present petition, be
pleased to stay further investigation  of the FIR being  C.R.  No.I­90/15
lodged with D.C.B. Police Station, Ahmedabad City – Annexure­B, qua the
present petitioner;
(D) Pending admission and final disposal of the present petition, be
pleased to direct the respondents, their agents and servants not to arrest
the petitioners in connection with any FIR logged in any part of the State
of Gujarat for the offences punishable under sections pending admission
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and   final   disposal   of   the   present   petition,   be   pleased   to   stay   on   the
materials and facts of bundle which have been disclosed, wholly or partly,
in   the   FIR   recorded   as   C.R.   No.I­90/15   with   D.C.B.   Police   Station,
Ahmedabad City. 
(E) Be pleased to pass such other and further orders as may be deemed fit
and proper.”
3 The case of the prosecution may be summarized as under:
3.1 The first informant is the Deputy Police Commissioner, Zone ­ 3,
Surat city.  It is the  case of the first informant that past about four
months, there is a strong and violent agitation going on in the State of
Gujarat as regards the reservation for the members of the Patidar Patel
Community. The applicant accused of the Special Criminal Application
No.6330 of 2015 is the Convener of a committee known as the Patidar
Anamat Andolan Samiti. The applicant accused, in his capacity as the
Convener   of   the   organization,   declared   bandhs,   convened   public
meetings   and   various   other   programmes   as   a   part   of   the   agitation.
According to the organization, the Patidar Patel Community is being
neglected   by   the   State   Government   in   respect   of   education   and
employment.   In   the   last   few   months,   the   State   of   Gujarat,   more
particularly,   the   cities   like,   Ahmedabad,   Surat,   Mehsana   and   Rajkot
witnessed worst of the riots, in which, extensive damage was caused by
the members of the organization as well as the people of the Patidar
community and others to the public property by torching the  police
stations, public buses, etc. Few innocent people also lost their lives.
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4 For   better  understanding  of  the   accusations,   I  may  quote   few
relevant paragraphs containing the allegations in the F.I.R. as under: 
“1. Article 16(4) of the Constitution of India, 1950 states as thus:
“Nothing in Article 16 or in clause 2) of Article 29 of the Constitution of
India shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes f citizens
for the Scheduled Castes and the Scheduled Tribes.” 
Further Article 46 of the Constitution states that;
“The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particularly, of the
Scheduled Castes and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation.” 
However, the maximum limit of the percentage of the reservation has been
directed by Hon’ble Supreme Court in the Indira Sawhney vs Union of
India   &   Others.   In   the   said   judgement   it   has   been   directed   that
“Reservation   being   extreme   form   of   protective   measure   or   affirmative
action   it   should   be   confined   to   minority   of   seats.   Even   though   the
Constitution does not lay down any specific bar but the constitutional
philosophy being against proportional equality the principle of balancing
equality ordains reservation, of any manner, not to exceed 50%.” 
2. Reservation for Other Backward Class Cases was introduced in the
year 1981, by the Government of Gujarat, headed by then Chief Minister
Shri Madhav Solanki, then called Socially and Economically Backward
Castes (SEBC), based on recommendations of the Bakshi Commission. It
resulted in anti­reservation agitation across the state which spilled over in
riots resulting in more than one hundred deaths. In Gujarat, 27% of seats
are reserved for OBC, 7.5% for Scheduled Castes and 15% for Scheduled
Tribes for a total of 49.5% of all seas. The SEBC (later the OBC) list
initially contained 81 communities. State has formed OBC commission in
1994 under article 340 of the constitution, and at present Gujarat has
146   castes   included   under   OBC   quota.   Based   on   survey   and
recommendation by the commission the state government can include any
community in the list. Patel or Patidar caste, formally recognised as a
separate identity in the 1931 census of India and having previously been
classified   as   Kanbi,   is   not   included   in   the   list   of   OBCs.   None   of   the
commissions, constituted for survey and recommendation for including of
communities in OBC list, ever recommended Patidar caste to be included in
the said list. 
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3. Despite being aware of the fact that including of Patidar/Patel caste
in the list of OBCs is not legal and sociologically impossible, a group of
persons, led by one Shri Hardik Patel, conspired to instigate members of
the   Patidar/Patel   Community   to   agitate   for   the   same.   As   will   be
established by facts stated hereinafter,  this conspiracy was pre­planned
and executed for the purpose of bringing into hatred and contempt, and to
excite disaffection towards the Government of Gujarat. These persons had
deliberately and knowingly by words, spoken and written, attempted to
undermine public order and lawful authority of the State. Facts stated
hereinafter  will  ex­facie   show  that  the  words  spoken  by  these  accused
persons   have   the   pernicious   tendency   and   intention   of   creating   public
disorder and disturbance of law and order. Therefore, the acts committed
by  these   accused  persons   amount  to  offence  under  sections   124A  IPC,
which reads as thus:  
124A. Sedition
Whoever by words,  either spoken or written,  or 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 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 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
administrative or other action of the Government without exciting
or attempting to excite hatred,  contempt or disaffection,  do not
constitute an offence under this section.
Further, the accused persons have conspired and acted in pursuance to the
said conspiracy to instigate a deliberate and organised attack upon the
Government  forces. Such acts of these persons also amount  to offences
punishable   under   sections   121   and   121A   IPC,   since   the   object   of   the
accused persons was, by force and violence, to overcome the servants of the
Government and thereby to force Government of Gujarat to take illegal
decisions.   Section  121  and   121A   IPC  are   reproduced   herein­below   for
ready reference: 

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.
121A. Conspiracy to commit offences punishable by Section
121
Whoever within or without b [India] conspires to any of the offence
punishable by Section 121, or conspires to overawe, by means of
criminal 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, h [and shall also be liable to fine.
Explanation.­To constitute a conspiracy under this section, it is not
necessary that any act or illegal or omission shall take place in
pursuance thereof.
In continuation to the aforesaid, it is further stated that in the garb of
promoting   interest   of   Patidar   community,   the   accused   persons   started
inciting   Patidar   community   members   against   members   of   those
community who already have reservation and are included in the list of
Other  Backward  Castes.  Through  words  spoken  and  written,  described
hereinafter, accused persons had acted with intention to cause disorder
and incite people to violence and creating disharmony in the society. On
the   basis   of   evidence   cited   hereinafter,   accused   persons   have   also
committed offence under section 153A and 153B of IPC which reads as
thus: 
153A. Promoting enmity between different groups on ground
of religion, race, place of birth, residence, language, etc., and
doing acts prejudicial to maintenance of harmony
(1) Whoever­
(a) by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote, on
grounds of religion, race, place of birth, residence, language, caste
or  community   or  any   other   ground   whatsoever,   disharmony   or
feelings   of  enmity,  hatred   or   ill­will   between   different   religious,
racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of
harmony between different religious, racial, language or regional
groups or castes or communities, and which disturbs or is likely to
disturb the public tranquility, or
(c) organizes any exercise, movement, drill or other similar activity
intending   that   the   participants   in  such   activity   shall   use   or   be
trained to use criminal force or violence or knowing it to be likely
that the participants in such activity will use or be trained to use
criminal force or violence, or participates in such activity intending
to use or be trained to use criminal force or violence or knowing it
to be likely that the participants in such activity will use or be
trained  to use criminal  force  or violence,  against  any  religious,
racial, language or regional group or caste or community and such
activity for any reason whatsoever causes or is likely to cause fear
or   alarm   or   a   feeling   of   insecurity   amongst   members   of   such
religious, racial, language or regional group or caste or community,
shall be punished with imprisonment which may extend to three
years, or with fine, or with both.
153B.   Imputations,   assertions   prejudicial   to   national
integration
(1) Whoever, by words either spoken or written or by signs or by
visible representations or otherwise,­
(a) makes or publishes any imputation that any class of persons
cannot, by reason of their being members of any religious, racial,
language or regional group or caste or community, bear true faith
and allegiance to the Constitution of India as by law established or
uphold the sovereignty and integrity of India, or
(b) asserts, counsels, advises, propagates or publishes that any class
of persons by reason of their being members of any religious, racial,
language or regional group or caste or community be denied, or
deprived of their rights as citizens of India, or
(c)   makes   or   publishes   and   assertion,   counsel,   plea   or   appeal
concerning the obligation of any class of persons, by reason of their
being members of any religious, racial, language or regional group
or caste or community, and such assertion, counsel, plea or appeal
causes or is likely to cause disharmony  or feelings of enmity or
hatred or ill­will between such members and other persons, shall be
punished with imprisonment which may extend to three years, or
with fine, or with both.

(2) Whoever commits an offence specified in sub­section (1), in any
place of worship or in any assembly engaged in the performance of
religious worship or religious ceremonies, shall be punished with
imprisonment  which may extend to five years and shall also be
liable to fine.
Acts   of   commission   and   omission   by   Hardik   Patel   and   other   accused
persons,   which   amounts   to   various   offences   under   abovementioned
sections, are enumerated hereinafter. 
4. Hardik Patel and other accused persons formed an organisation,
namely   Patidar   Anamat   Andolan   Samiti,   purportedly   to   seek   Other
Backward   Class   status   for   Patidar   community   to   get   reservation   in
Government  jobs and education.  Despite being  aware  of the legal and
social aspects of such demand, several agitations/public gatherings and
demonstrations   were   planned   and   executed   at   various   places   across
Gujarat.   It   would   be   worthwhile   stating   here   that   some   of   the   said
agitations/public gatherings and demonstrations (reference of the main
events which has been made date­wise hereinunder in a tabular form)
were   held   without   taking   necessary   permission   from   the   concerned
authorities. 
Date   of
Agitation/ public
gathering/
demonstration
Place Whether the  Agitation/  public
gathering/demonstration
turned violent and resulted in
any   disturbance   to   law   and
order
‘6/7/2015 Mehsana Yes. Agitators entered into scuffle
with police
‘22/7/2015 Mansa No
‘23/7/2015  Visnagar Yes,   agitators   torched   vehicles
and vandalised the office of BJP
MLA, Shri Rishikesh Patel
‘28/7/2015 Vijapur &
Mehsana
Yes.   Prohibitory   orders   violated.
152 persons booked. 
‘30/7/2015  Lunavada Yes.   Offence   registered   against
organisers
‘1/8/2015  Devbhoomi
Dwarka
No
‘3/8/2015 Gandhinagar,
Navsari, Jam
Jodhpur
(Jamnagar),
No

Himmatnagar,
Bagasara
(Amreli)
‘5/8/2015 Rajkot Yes. Statements against leaders of
other communities.
‘10/8/2015 Amreli Yes.   Burnt   effigy   of   community
leaders
‘12/8/2015 Junagadh No
‘17/8/2015 Petlad No
‘17/8/2015  Surat Yes.   Scuffle   with   police   at   the
collector   office   and   also   burnt
effigies   and   indulged   in
vandalism
‘21/8/2015 Surendranagar,
Bharuch,
Ankleshwar and
Vadodara
Yes.   Scuffle   with   police   at   the
collector   office   and   incited   the
mob at the sabha venue against
police. 
More than 300 odd rallies, agitations or demonstrations were conducted
by the  groups   across  the  state.   Over   and  above  holding  the  aforesaid
agitations/public   gatherings/demonstrations,   the   aforesaid   accused
persons used social media to spread the protest quickly across the State
and such agitations/public gatherings/demonstrations were organised and
executed by the Patidar Anamat Andolan Samiti. The demonstration in
Surat on 17th August, 2015 drew estimated 3 lac people. The diamond and
textile markets of the city remained­closed. Several schools and colleges
were also closed. 
5. Deleterious effect of these agitations started showing in the society,
where   the   castes,   which   are   already   part   of   OBC   list,   started
demonstrating against the demand of Patidar community to be included in
the list. Thousands of Other Backward Class communities’ members held a
rally on 23rd August in Ahmedabad to counter the agitation of the Patel
community. Rallies were held by OBCs at various other places in Gujarat
to oppose the demand of Patidars to be included in OBC list. Press cuttings
pertaining to these rallies are available and will be produced. Similarly,
those   communities   which   do   not   get   benefit   of   reservation,   such   as
Brahmins, Baniya, etc., started agitating and organising rallies against
reservation system details of which are also available. Division in various
communities of the society was an expected fallout of the agitation led by
Shri Hardik Patel and other accused persons. Divisive statements made by
state against other communities and caste groups added fuel to fire. These
accused persons conspired and planned to instigate the schism and violence
between various communities. 
6. Government of Gujarat made all the attempts to widely publicise

the correct facts vis­a­vis the fallacies being spread by the accused persons
various   advertisements   and   public   statements   were   issued   by   the
Government of Gujarat to dissuade the members of Patidar community
from   being   misled.   These   advertisements   and   public   statements   are
available.   In   fat   the   Government   of   Gujarat   went   out   of   its   way   to
persuade Hardik Patel and other accused persons negated all such efforts
of Government of Gujarat by either not participating in the negotiation
process initiated by the Government or by making statements like “some
parties say you do not know about Supreme Court guidelines (50 per cent
cap on reservation), this cannot happen. If Supreme Court can open at
3.30 in the morning for a terrorist, then why not for the youth, the future
of this nation?” 
8. As can be inferred from the preceding paragraphs, all efforts of the
State Government for the purpose of initiating a process of dialogue with
Hardik Patel and in view of speeches made by Hardik Patel leading to the
25th August, 2015 rally at Ahmedabad, a decision was taken to monitor
the activities of Hardik Patel and his group for the purpose of ascertaining
the real motive behind these agitations. Accordingly on the grounds of
maintaining   law   and   public   order,   surveillance   was   done   and   phone
numbers of some members of the group  viz. Patidar Anamat  Andolan
Samiti   (PAAS)   were   kept   under   technical   surveillance   after   getting
requisite   approval   from   the   office   of   the   Additional   Chief   Secretary
(Home).Based on the data collected from such technical surveillance, an
inference was easily drawn regarding a nefarious design and pre­planned
conspiracy on the part of Hardik Patel and other members of the PAAS.
The conversations made by some members of the core committee of PAAS
and the agitators clearly show that they had been instigated and abetted
by the members of PAAS. The calls were made by the PAAS members to the
agitators clearly show that they had been instigated and abetted by the
members  of PAAS.  The  calls  were  made  by the PAAS  members  to the
agitators instigating them and asking them to attack and burn public
property and police and also asking them to wage war to overthrow the
duly elected Government of Gujarat.
10. Initially it was planned and announced that after the completion of
the sabha, a rally will be taken out to the Collector Office, Ahmedabad
City to handover  the memorandum  to Collector  & District  Magistrate,
Ahmedabad City. With an intention to prevent  any untoward incident
during the rally procession, Ahmedabad Collector & District Magistrate
had voluntarily offered to come up personally to the G.M.D.C. ground  to
accept the memorandum for inclusion of Patidar community in OBC list.
However, Hardik Patel refused the same, and insisted that Hon’ble Chief
Minister of Gujarat herself came to be ground to accept the memorandum.
An announcement to the same effect was made publicly by Hardik Patel.
Thereafter, Hardik Patel and other members of PAAS led a rally procession
to   the   Collector   Office,   wherein   all   throughout   the   route   they   were

addressing and inciting the agitators on the road. After submitting the
memorandum   to   the   Collector,   Ahmedabad,   Hardik   Patel   and   other
members of PAAS came back to GMDC ground and sat on indefinite fast.
Their demand was that Hon’ble Chief Minister in person should come to
the ground and accept the said memorandum. Hardik Patel again and
again announced and requested more and more agitators to join him in
indefinite fast at GMDC ground. In this connection, it is stated that the
permission  for  sabha  and  rally  procession  was only  till  6 pm on 25th
August,   2015.   However,   Hardik   Patel   and   other   members   of   PAAS
continued to sit on stage and were joined by about 1000 other agitators.
The police  officers  and personnel  deployed  on GMDC  ground  informed
these agitators that since there is no permission to sit on fast and the
permitted time for the rally has lapsed, they should vacate the premises.
Also, request was made to suspend the fast in view of the already fragile
law & order situation  in Ahmedabad  City  and  other  areas.  It will  be
appropriate to mention that due to incitement made during the rally and
sabha, confrontation on caste lines happened at Juna Wadaj area, where
Police had to resort to lathi­charge to disperse the mob. Similar reports of
confrontation and violence between Patidars and other communities were
coming from different parts of the city. Despite continuous request of police
officers  to vacate  the ground.  Hardik Patel  and other  accused  persons
continued the fast, and instead started threatening the police officers and
personnel of dire consequences. Derogatory comments on caste of the police
officers and personnel were being made by the agitators present in the
ground by reading the name plates on the uniform.  Hardik Patel also
incited the agitators present in the GMDC ground by announcing that the
police want to arrest him and remove him forcibly from the ground. These
statements, as also the other comments by Hardik Patel and other accused
persons,  made   the   crowd   violent.   Agitators   started   throwing   chairs   at
police,   resulting   into   injuries   to   police   personnel,   including   Police
Constable Ajay M Solanki  of Dhari Police Station which resulted in a
fracture of his left arm. This forced police to resort to lathi­charge. To
disperse the mob the police officers were constrained to detain Hardik Patel
and other members of PAAS under section 68 of Gujarat Police Act. This
detention was done to ensure the safety of these persons, as in the ensuing
melee, the mob resorted to stone pelting and damaging pubic property. 
12. The spate of violence and destruction done by the agitators across
the state showed a clear and well planned conspiracy. 
a. Railway lines across the state were targeted by the mob wherein
offences were registered at Sabarmati Railway Police Station, Viramgam
Railway Police Station and Kapadvanj Town Police Station relating to
uprooting of railway lines. The brief facs of the three offences are as given
below: 
i. Kapadvanj  Town Police Station I CR No 38/2015  where

railway lines of 26 meters were removed and signal was damaged
by unlawful assembly of 25 persons
ii. Sabarmati Railway Police Station I CR No 25/2015 where
railway   crossings,   gateman   cabin,   and   other   critical   railway
property was damaged by a mob of 5,000 persons 
iii. Viramgam Railway Police Station I CR No 09/2015 where
in   Kadi   Railway   Station   critical   railway   infrastructure   was
damaged by an illegal mob of 700­800 person 
b. The residence and offices of the elected representatives, MLA’s, MP’s
and government offices located across the state were targeted by the mob.
A total of 14 offences were registered across the state wherein residence
and offices of Ministers and MLAs and MPs were attacked. The government
rest house at Kadi, forest department vehicle at Idar, official vehicle of the
Ld. Addl. Sessions Judge, Patan was attacked and set ablaze by the mob.
Brief information of some of the offences are enumerated herein below: 
i. Mehsana B Division PS I CR No 166/2015 where office of
Minister of State for Home, Gujarat was set ablaze
ii. Patan City B Division,  I CR No 104/2015  where official
vehicle of Ld. Additional Sessions Judge, Patan was set ablaze. 
iii. Unjha PS I CR No 155/2015 where Sales Tax Office and
Taluka Panchayat office at Unjha were set on fire, alongwith stone
pelting over police personnel. 
c. Based on the misrepresented news regarding Hardik Patel’s arrest,
the   agitators   across   the   state   targeted   Police   officers   and   personnel.
Widespread   damage   was   made   to   police   stations,   chowkis   and   police
vehicles and policemen were attacked across the state. 55 offences were
registered in the state of which 24 offences were reported in Ahmedabad,
14 in Mehsana, 6 offences in Rajkot, 4 in Sabarkantha, 3 each in Patan
and Banaskantha, and one in Kheda. 
i. Bapunagar PS I CR No 172/15 where a mob attacked the
Diamond Police Chowki and set it ablaze.
ii. Ramol PS I CR No 175/15 were an unruly crowd laid siege
on the Vastral Police Chowki, seized weapons from the police party
and opened fire on them. 
iii. Kadi PS I CR No 157/15 where a mob targeted the Gandhi
Chowk Police Chowki and the police line and tried to set it ablaze. 
iv. Gad PS I CR No 58/15 where a mob attacked the police
station   with   swords   and   petrol   bombs   and   torched   the   police
vehicles and tried to take away the weapon of the police personnel. 
d. The agitated mob also targeted public and private properties across
the state, Public modes of transport like AMTS, GSRTC and BRTS buses
across   Gujarat   were   targeted.   32   offences   were   registered   in   this
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connection wherein 9 offences were in Ahmedabad, 7 in Mehsana, 6 in
Patan, 5 in Sabarkantha and 4 offences in Rajkot and one in Valsad. 
i. Sola PS I CR No 191/15 where the mob damaged AMTS,
BRTS and GSRTC buses and fire brigade vehicles.
ii. Ghatlodia PS I CR No 127/15 where the mob attacked the
police chowki, burnt BRTS and AMTS buses. 
iii. Gandhigram   PS   I   CR   No   209/15   where   an   irate   mob
torched the BRTS bus stop. 
e. The incitement done by accused persons had caused schism in the
society on caste lines, which resulted in caste clashes at various places.
Offences were registered at various place, including at Vadaj Police Station
of Ahmedabad City vide I CR No 15/2015 where clashes between Patidar
community and other OBC community took place. 
The entire detailed report showing the offences registered across the state
as part of this spate of violence is available. 
15. The spate of violent acts that ensued in Ahmedabad city since 25th
August, 2015 clearly reveal a pattern and design getting its corroboration
from   the   earlier   speeches   made   by   Hardik   Patel   and   also   from   the
transcripts of the conversations of the other accused persons mentioned
hereinbefore. Further acts and omissions on the part of Hardik Patel and
other accused persons belonging to PAAS prima facie establish that the
entire agitation of seeking reservation for the Patidar Community  was
never the intended purpose of the PAAS. In fact, acts and omission on the
part of accused person clearly establishes a sinister design to bring into
hatred   and   contempt   in   order   to   excite   disaffection   towards   the   duly
elected   government   and   its   functionaries.   Covert   calls   to   attack
government   in   false   and   bad   light   by   intentionally   spreading
misinformation with distorted facts are all parts of this conspiracy. The
conspiracy   hatched   by  Hardik   Patel   and   the   other   accused   persons   to
destabilise   a   duly   elected   democratic   Government   under   the   garb   of
Reservation Agitation for the Patidar Community, a community otherwise
seen and perceived as a peace­loving and law­abiding community. Hardik
Patel and other accused persons, intentionally incited the sentiments of the
community members and also developed a feeling of hatred, contempt and
disaffection amongst the members of the Patidar Community towards the
Government   and   also   other   communities,   thereby   creating   situations
prejudicial   to   national   integration.   The   accused   persons   under   the
leadership of Hardik Bharatbhai Patel attempted to wage war against the
government and also conspired to overawe the lawfully elected government
of Gujarat, by means of criminal force and also by show of criminal force.
They committed various acts of omissions and commissions punishable u/s
121, 121A, 124A, 153A, 153B read with read with 120(B) of the Indian
Penal Code and hence I file this complaint against Hardik Bharatbhai
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Patel, Dinesh Bhagavanbah Bambhaniya, Chirag Bharatbhai Patel, Ketan
Lalitbhai Patel, Alpesh Ganshyambhai Katharia, Amreshkumar D. Patel
and others as will be disclosed in the course of investigation.” 
5 Keeping in mind the above, it is the case of the prosecution that
the applicants herein have committed the offences of sedition punishable
under Section 124A of the IPC, waging of war punishable under Section
121 of the IPC, hatching conspiracy to commit offence punishable under
Section   121A   of   the   IPC,   and   promoting   enmity   between   different
groups on grounds of religion, etc. punishable under Section 153A of the
IPC. 
●     SUBMISSION ON BEHALF OF THE APPLICANTS:
6 Mr.   B.M.   Mangukiya,   the   learned   counsel   appearing   for   the
applicants   vehemently   submitted   that   the   First   Information   Report
lodged against his clients is nothing, but an act of mala fide on the part
of the State Government. Mr. Mangukiya submitted that never before in
his professional career, he has seen the F.I.R. of the present nature. He
submitted that a part of it is in vernacular and the the substantially in
English. He submitted that a person, who lodges the F.I.R., cannot be
also the person who takes down the F.I.R. and registers the same in
accordance with law. 
7 Mr. Mangukiya submitted that in the case in hand, the F.I.R. has
been lodged by the Deputy Police Commissioner, Zone­3 in his own
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name, and the same is also shown to have been registered by him. 
8 Mr. Mangukiya submitted that the allegations levelled in the F.I.R.
are more in the nature of an opinion expressed by the Deputy Police
Commissioner. 
9 Mr.   Mangukiya   submitted   that   even   if   the   entire   case   of   the
prosecution is accepted as true, including the statements alleged to have
been made by the applicants herein, would not constitute an offence of
sedition punishable under Section 124A of the IPC. He submitted that
none   of   the   ingredients   to   constitute   the   offence   punishable   under
Section   124A   are   spelt   out   on   the   plain   reading   of   the   F.I.R.   He
submitted that in a democratic country, like India, any citizen can raise
his voice against any Government, if the Government is not found to be
acting in the interest of a particular community. He submitted that the
agitation for the reservation could not be said to be, in any manner,
unlawful. 
10 Mr. Mangukiya, the learned counsel appearing for the applicants
submitted that there is not a whisper of an allegation that the applicants
herein, by their prejudicial activities, promoted enmity between different
groups on grounds of religion, etc. He submitted that this aspect has
been   taken   care   of   by   this   Court   in   the   judgment   and   order   dated
27.10.2015 delivered in the case of Hardik Bharatbhai Patel vs. State of
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Gujarat (Criminal Miscellaneous Application No.19858 of 2015). 
11 He submitted that the Investigating Officer has gone to the extent
of accusing the applicants of having committed the offence punishable
under Section 121 of the IPC i.e. waging of war against the Government.
He submitted that the expression “waging war” means and can only
mean waging war in the manner usual in war. 
12 Mr.   Mangukiya   submitted   that   mere   violent   activities,   like
torching public transport buses, police stations, etc. by itself, would not
amount   to   waging   war   against   the   Government.   Mr.   Mangukiya
submitted that the expression “waging war” should not be stretched too
far   to   hold   that   all   the   acts   of   disrupting   public   order   and   peace
irrespective of their magnitude and repercussions could be reckoned as
acts of “waging war” against the Government. Mr. Mangukiya submitted
that the offence of waging war was inserted in the Indian Penal Code
when the Nation was fighting for an independence against the Britishers.
According to Mr. Mangukiya, the expression “waging war” occurring in
Section 121 of the IPC should be viewed with the eyes of the people of
free India. He submitted that after independence, these have changed
drastically. The people of this country are governed by the Constitution
which   provides   for   freedom   of   speech   and   expression,   as   embodied
under Article 19(1)(g) of the Constitution. 
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13 Mr.   Mangukiya   submitted   that   before   a   person   is   accused   of
having committed an offence of waging war, the intention or purpose
behind the defiance or raising the Government should also be looked
into. He submitted that the agitation is for reservation. The object and
purpose of the agitation is not to strike at the sovereign authorities of
the Rulers or the Government. 
14 In such circumstances referred to above, Mr. Mangukiya submitted
that there being merit in all the writ applications, the same be allowed
and the F.I.R. be quashed. 
15 In support of his submissions, Mr. Mangukiya placed reliance on a
decision of the Supreme Court in the case of Nazir Khan and others vs.
State of Delhi [2003 Cri. L. J. 5021(1)]. 
●     SUBMISSIONS ON BEHALF OF THE STATE OF GUJARAT:
16 Mr. Mitesh Amin, the learned Public Prosecutor appearing for the
State vehemently opposed these applications and submitted that no case
worth the name could be said to have been made out for quashing of the
First Information Report. He submitted that the plain reading of the First
Information Report discloses more than a  prima facie  case against the
applicants.   He   submitted   that   the   First   Information   Report   discloses
commission of cognizable offences. Mr. Amin submitted that so far as
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the offence of sedition  punishable under Section 124A of the IPC is
concerned, this Court has explained in details as to how the offence is
committed so far as the agitation is concerned in the case of  Hardik
Patel (supra). Mr. Amin placed reliance on the observations made by
this   Court   in   the   judgment  and   order   dated   27.10.2015   referred   to
above. Mr. Amin submitted that organizing or joining an insurrection
against the Government of Gujarat is also a form of war. He submitted
that unlawful assemblies, riots, insurrections, rebellions, levying of war
are the offences which run into each other and not capable of being
marked off by perfectly definite boundaries. He submitted that all of
them have in common one feature, namely, that normal tranquility of a
civilized society is disturbed either by actual force or at least by the show
and threat of it. 
17 Mr. Amin submitted that Section 121 of the IPC not only talks
about waging of war, but also an attempt to wage war or abetting the
waging   of   such   war.   In   the   same   manner,   Mr.   Amin   drew   a   fine
classification of Section 121A into two parts. According to Mr. Amin, the
first   part   speaks   about   conspiracy   to   commit   any   of   the   offences
punishable under Section 121 and the second part speaks of conspiracy
to overawe, by means of criminal force or the show of criminal force. Mr.
Amin  submitted  that the  words “conspires to overawe, by means of
criminal force or the show of criminal force” clearly embrace not merely
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a conspiracy to raise a general insurrection, but also a conspiracy to
overawe the Government by the organization of a serious riot or a large
and   tumultuous   unlawful   assembly.   He   submitted   that   the   word
“overawe” clearly imports more than the creation of an apprehension or
alarm or even perhaps fears. 
18 Mr. Amin submitted that the investigation is still in progress. He
submitted   that  it  is at  a  very delicate  stage. He  submitted  that  the
material is being collected and whatever material has been collected so
far would go to show that more than a  prima facie  case is made out
against the applicants. He submitted that in such circumstances, the
Court may not quash the F.I.R. at this stage. 
19 In   such  circumstances referred   to  above,  Mr.  Amin  prays  that
there   being   no   merit   in   any   of   the   writ   applications,   they   may   be
rejected. 
20 Mr. Amin, in support of his submissions, placed reliance on a
decision of the Patna High Court in the case of Jubba Mallah and ors vs.
Emperor [AIR 1944 Patna 58]. 
●     ANALYSIS:
21 Having heard the learned counsel appearing for the parties and
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having gone through the materials on record, the only question that falls
for my consideration is whether the F.I.R. should be quashed. 
22 So far as the offence of sedition is concerned, I have dealt with the
same at length in my judgment and order dated 27.10.2015 in the case
of Hardik Patel (supra). I may quote the relevant observations as under:
“6  Let me first look into the principal accusation against the applicant
as regards the offence of sedition punishable under Section 124A of the
Indian Penal Code. Section 124­A reads as under: 
124A. Sedition. Whoever, by words, either spoken or written, or 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,
102 [***] the Government established by law in 103 [India], [***] shall be
punished with 104 [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 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 administrative
or other action of the Government without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence under this
section.
7 Section 124­A deals with 'Sedition,' Sedition is a crime against society
nearly allied to that of treason, and it frequently precedes treason by a
short interval. Sedition in itself is a comprehensive term, and it embraces
all those practices, whether by word, deed, or writing, which are calculated
to   disturb   the   tranquility   of   the   State,   and   lead   ignorant   persons   to
endeavour to subvert the Government and laws of the country. The objects
of sedition generally are to induce discontent and insurrection, and stir up
opposition to the Government, and bring the administration of justice into
contempt;  and  the very  tendency  of sedition is to incite  the people  to
insurrection and rebellion. "Sedition has been described as disloyalty in

action, and the law considers as sedition all those practices which have for
their   object   to   excite   discontent   or   dissatisfaction,   to   create   public
disturbance, or to lead to civil war; to bring into hatred or contempt the
Sovereign or the Government, the laws or constitutions of the realm, and
generally all endeavours to promote public disorder.  [See:Nazir Khan
and others v. State of Delhi, 2003 Cri. L.J. 5021(1)]. 
8 It is the fundamental right of every citizen to have his own political
theories   and   ideas   and   to   propagate   them   and   work   for   their
establishment so long as he does not seek to do so by force and violence or
contravene   any   provision   of   law.   The   demand   for   reservation   for   the
members of the Patidar Patel community by itself is not an offence. It is
open to the members of the Patidar Patel community to seek reservation, if
available in law or the State Government, by way of a policy decision,
deems fit to provide. It is also open to demand for reservation by peaceful
means, ceaselessly fighting public opinion that might be against them and
opposing those who desired the continuance of the existing order of the
society and the Government. What is not permissible in order to attain
such object is any act which have the effect of bringing or which attempt to
bring   into   hatredness   or   contempt   or   excites   or   attempts   to   excite
disaffection towards the Government established by law. As observed by
the Supreme Court in Kedar Nath Singh (supra)  that the 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. 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 to Chapter VI
relating   to   offences   against   the   State.   The   question   which   arises   for
consideration is whether the statement made or the words spoken or the
advice given by the applicant to one Shri Desai in the presence of many of
people and media can be said to be seditious, that is to say of such a
nature that the same would be punishable under Section 124A  of the
Indian Penal Code. The determination of this question depends on the true
scope and ambit of Section 124­A which defines the well­known offence of
sedition with which many in this country were only too familiar during
the days of British rule. The offence of sedition is the resultant of the
balancing   of   two   contending   forces   :   namely,   freedom   and   security.
Freedom and security in their pure form are antagonistic poles : one pole
represents the interest of the individual in being afforded the maximum
right of self­assertion free from Governmental and other interference while
the other represents the interest of the politically organized society in its
self­preservation.   It  is  impossible   to  extend   to   either   of   them   absolute
protection   for   as   observed   by   Mr.   Justice   Frankfurter,   "absolute   rules
would inevitably lead to absolute exceptions and such exceptions would
eventually corrode the rules". It is now a generally accepted postulate that
freedom of speech and expression which includes within its fold freedom of
propagation of ideas lies at the foundation of all democratic organizations,

for without free political discussion, no public education so essential for
the proper functioning of the processes of popular Government is possible.
It is the matrix, the indispensable condition, of nearly every other form of
freedom   and   because   it   has   the   capacity   of   unfolding   the   truth,   it   is
indispensable to the democratic process. Now freedom of such amplitude
might involve risks of abuse but as pointed out by Patanjali Shastri, J.,
in Romesh Thapper v. State of Madras, AIR 1950 SC 124 "the framers
of the Constitution may well have reflected, with Madison who was 'the
leading spirit in the preparation of the first Amendment of the Federal
Constitution' that "it is better to leave a few of its noxious branches to their
luxuriant growth, than, by pruning them away, to injure the vigour of
those yielding the proper fruits";" (quoted in Near v. Minnesotta, (1930)
283 US 697. While conceding the imperative necessity of freedom of speech
and expression in its full width and amplitude, it is necessary at the same
time   to   remember  that  the   first   and   most   fundamental  duty  of  every
Government   is   the   preservation   of   order,   since   order   is   a   condition
precedent to all civilization and the advance of human happiness. The
security of the State and organized Government are the very foundation of
freedom of speech and expression which maintains the opportunity for free
political discussion to the end that Government may be responsive to the
will of the people and it is, therefore, essential that the end should not be
lost sight of in an over­emphasis of the means. The protection of freedom
of speech and expression should not be carried to an extent where it may
be permitted to disturb law and order or create public disorder with a view
to subverting Government established by law. It is, therefore, necessary to
strike a proper balance between the competing claims of freedom of speech
and expression on the one hand and public order and security of the State
on   the   other.   This   balance   has   been   found   by   the   Legislature   in   the
enactment of Section 124­A which defines the offence of sedition for our
country.  [See: Manubhai Tribhovandas Patel and others v. State of
Gujarat [1972 Cri. L. J. 373]
9 The interpretation of Section 124­A has over the years gone through
various   vicissitudes   and   changes.   The   first   case   where   it   came   up   for
consideration   was   the   famous   Bangobasi   Case;  Queen­Empress   v.
Jogendra Chunder (1892) ILR 19 Cal 35. The Section as it was in force
at that time was the unamended Section which did not contain the words
"brings or attempts to bring into hatred or contempt" and had only one
composite explanation instead of the present three. The words of the Sec.
which, therefore, fall for construction were : "Whoever............ excites or
attempts to excite feelings of disaffection to the Government established by
law." Sir Comer Petheram. C.J. in his charge to the jury gave a very wide
interpretation   to   the   word   "disaffection".   He   interpreted   it   to   mean
"contrary to affection" and observed that it would be sufficient for the
purposes of the Section that the words used are calculated to excite feelings
of ill­will against the Government, Strachey, J. gave a further expansion to
this meaning in Queen Empress v. Bal Gangadhar Tilak, (1898) ILR 22

Bom   112,   when   he   said   :   "I   agree   with   Sir   Comer   Petheram   in   the
Bangobasi case that disaffection means simply the absence of affection"
which he explained by saying : "It means hatred, enmity, dislike, hostility,
contempt and every form of ill­will to the Govt. 'Disloyalty' is perhaps the
best general term, comprehending every possible form of bad feeling to the
Government".  He proceeded  to  observe,  interpreting  the  Section  : "The
offence consist in exciting or attempting to excite in others certain bad
feelings towards the Government. It is not the exciting or attempting to
excite mutiny  or rebellion,  or any sort of actual disturbance,  great or
small... even if he ("that is the accused") neither excited nor intended to
excite any rebellion or outbreak of forcible resistance to the authority of
the   Government,   still   if   he   tried   to   excite   feelings   of   enmity   to   the
Government, that is sufficient to make him guilty under the section". This
charge to the jury was expressly approved by the Judicial Committee of the
Privy Council while dismissing the application preferred by Bal Gangadhar
Tilak for special leave to appeal against his conviction by the Bombay High
Court. This interpretation gave a very wide sweep to Section 124­A and
made it a formidable Section. It was obviously an interpretation calculated
to reserve power in the British Government  to prosecute their political
opponents and stifle opposition to the British rule. It reflected the anxiety
of the British to retain their strangle­hold on this country and continue
their exploitation by crushing all forms of opposition by making it penal
even to excite feelings of ill­will against the Government, as if by punishing
words or deeds calculated to produce ill­will, they could command goodwill
from a subject people. [See: Manubhai Tribhovandas Patel (supra)]. 
10 This broad and sweeping interpretation of Section 124­A held the field
until 1942, when in the leading case of Niharendu Dutt Majumdar v.
Emperor, AIR 1942 F.C. 22. Sir Maurice Gwyer. C.J., an eminent British
Judge who presided over the Federal Court of India in its early years,
reviewed the position and attempted to restrict the scope of the Section by
interpreting it according to the "external standard" applied by Judges in
England.  He  recognised  the  great  change  that  had taken  place  in the
concept of Government since the days of enactment of the Section and since
its interpretation in Bal Gangadhar Tilak's case (1898) ILR 22 Bom 112.
He quoted with approval the following passage from the speech of Lord
Summer in Bowman v. Secular Society Ltd., (1917) AC 406 : "The words
as well as the acts which tend to endanger society differ from time to time
in proportion as society is stable or insecure in fact, or is believed by its
reasonable members to be open to assault. In the present day meetings or
processions are held lawful which a hundred and fifty years ago would
have been deemed seditious, and this is not because the law is weaker or
has changed, but because, the times having changed, society is stronger
than before" and pointed out that "many judicial decisions in particular
cases which were no doubt correct at the time when they were given may
well be inapplicable to the circumstances of to­day." He felt that in the
changed circumstances of the country "bad feeling" or ''ill­will" towards the

Government could not be regarded as the basis of sedition. He pointed out
that the language of Section 124­A must be interpreted in the light of the
broad   principles   underlying   the   concept   of   sedition   as   formulated   in
English   law   and   referring   to   the   classic   statement   of   these   general
principles in Mr. Justice Fitzgerald's charge to the jury in Rex v. Sullivam
(1868)   11   Cox.   C.C.   54.   he   concluded   by   saving   that   the   offence   of
sedition  "is  the  answer  of  the  State   to  those  who,   for  the  purpose  of
attacking or subverting it, seek........................ to disturb its tranquillity,
to create public disturbance and to promote disorder, or who incite others
to do so. Words, deeds or writings constitute sedition, if they have this
intention  or this tendency  : and  it is easy  to see why  they  may  also
constitute sedition, if they seek, as the phrase is, to bring Government into
contempt. This is not made an offence in order to minister to the wounded
vanity of Governments, but because where Government and the law cease
to be obeyed and no respect is felt any longer for them, only anarchy can
follow.  Public  disorder,  or the reasonable  anticipation  or likelihood  of
public   disorder,   is   thus   the   gist   of   the   offence.   The   acts   or   words
complained of must either incite to disorder or must be such as to satisfy
reasonable men that that is their intention or tendency. "The Federal Court
thus   emphasized   the   need   for   dynamic   interpretation   of   the   section
appropriate   to   the   modern   concept   of   Government   and   accepted   a
narrower interpretation than the one given in the earlier cases by laving
down   that   unless   the  acts   or   words   have   a tendency   to   create  public
disorder, they cannot be considered seditious, as sedition is essentially an
offence   against   public   order.  [See:   Manubhai   Tribhovandas   Patel
(supra)].
11 But this progressive and enlightened view taken by the Federal Court
was overruled by the Judicial Committee of the Privy Council in  King
Emperor v. Sadashiv Narayan. 74. Ind App 89 : (AIR 1947 PC 82). The
Judicial Committee held that  incitement to disorder is not an essential
element of the offence of sedition but it is enough to excite or attempt to
excite feelings of disaffection, that is, ill­will against the Government. They
quoted  with approval  the relevant  passage from Mr.  Justice  Strachey's
charge to the jury in Bal Gangadhar Tilak's case, (1898) ILR 22 Bom 112
a passage from which we have also quoted earlier, and observed that they
would adopt the language of Mr. Justice Strachey "as exactly expressing
their   view   in   the   present   case."[See:   Manubhai  Tribhovandas   Patel
(supra)].
12 The result was that when our Constitution was enacted there were two
conflicting interpretations of Section 124­A before the Indian Courts. One
was the conservative interpretation placed by the Privy Council which gave
wide power to the Government to curb free speech and expression even if it
was calculated merely to produce bad feelings or feelings of ill­will against
the Government without any disturbance of public order : the other was
the liberal interpretation accepted by the Federal Court which limited the

right of the Government to interfere with free speech and expression and
permitted its free and unrestricted exercise so long as it did not incite
public disorder or have the intention or tendency to do so. The Supreme
Court was called upon to consider in Kedar Nath v. State of Bihar, AIR
1962 SC 955, which of these rival interpretations must be accepted as the
correct interpretation, for on the determination of this question depended
the validity of Sec. 124­A. If the interpretation placed by the Privy Council
were the correct interpretation. Section 124­A would be clearly ultra vires
as offending  Article 19(1)(a)  since  on such interpretation  it would  be
outside   the   permissible   limits   of   legislative   restrictions   which   may   be
imposed on the fundamental right of free speech and expression under
Article 19(2). It would not be possible to say on such interpretation that
the   Section   has   been   enacted   "in   the   interest   of   public   order"   :   the
restrictions, imposed by the section would go far beyond what is required
"in the interest of public order." The interpretation approved by the Federal
Court   would   on   the   other   hand,  make   the   section   valid,   for   on   that
interpretation there would be direct nexus between the restrictions imposed
by the Section and interest of public order and the Section would be saved
by Article 19(2). The Supreme Court, after an exhaustive review of the
case law on the subject accepted the interpretation placed by the Federal
Court and held Section 124A to be valid. Sinha C.J. speaking on behalf of
the   Supreme   Court   gave   the   following   reasons   for   preferring   the
interpretation accepted by the Federal Court :
".........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 of reasonable apprehension
thereof,  the section may lie within the ambit  of permissible  legislative
restrictions on the fundamental right of freedom of speech and expression.
There can be no doubt that apart from the provisions of clause (2) of
Article 19. Sections 124­A and 505 are clearly violative of Article 19(1)(a)
of the Constitution. But then we have to see how far the saving clauses,
namely. Clause (2) of Article 19 protects the sections aforesaid. Now as
already pointed out, in terms of the amended Clause (2), quoted above,
the  expression  'in the  interest   of.........public   order'  are  words  of great
amplitude and are much more comprehensive than the expression 'for the
maintenance of as observed by this Court in the case of Virendra v. State of
Punjab, 1958 SCR 308 at p. 317 : (AIR 1957 SC 896 at p. 899). Any law
which is enacted in the interest of public order may be saved from the vice
of Constitutional invalidity. 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 sections would
make them unconstitutional in view of Article 19(1)(a) read with Clause
(2). It is well­settled 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 would lean

in favour of the former construction. The provisions of the sections read as
a whole, along with the explanations make it reasonably clear that the
sections aim at rendering penal only such activities as would be intended
or have a tendency, to create disorder or disturbance of public peace by
resort to violence. As already pointed out, the explanations appended to
the main body of the section make it clear that criticism of public measures
or comment on Government action, however strongly worded, would be
within reasonable limits and would be consistent with the fundamental
right of freedom of speech and expression.  It is only when the words,
written or spoken, etc. which have the pernicious tendency or intention of
creating public disorder or disturbance of law and order that the law steps
in to prevent such activities in the interest of public order. So construed,
the section, in our opinion, strikes the correct balance between individual
fundamental rights and the interest of public order. It is also well settled
that in interpreting an enactment the Court should have regard not merely
to the literal meaning of, the words used, but also take into consideration
the antecedent history of the legislation, its purpose and the mischief it
seeks to suppress vide (1) Bengal Immunity Co. Ltd. v. State of Bihar.
1955­2 SCR 603 : AIR 1953 SC 661 and (2) R.M.D. Chamarbaugwala v.
Union of India, 1957 SCR 930 : AIR 1957 SC 628. Viewed in that light,
we   have   no   hesitation   in   so   construing   the   provisions   of   the   sections
impugned in these cases as to limit their application to acts involving
intention or tendency to create disorder, or disturbance of law and order,
or incitement to violence."
It   must   therefore,   be   now   taken   as   well­settled   that   words,   deeds   or
writings constitute sedition punishable under Section 124­A only if they
incite violence or disturb law and order or create public disorder or have
the intention or tendency to do so. It is in the light of this interpretation of
Sec.  124­A that I have  to determine  whether  the advice or the words
uttered constitute seditious matter punishable under Section 124­A. 
13 Although I have quoted a passage from the judgment in the case of
Kedar Nath Singh (supra), as referred to above, I deem it necessary to
quote the entire paragraphs 24, 25 and 26 as under:
24. In this case, we are directly concerned with the question how far the
offence as defined in S. 124A of the Indian Penal Code is consistent with
the fundamental right guaranteed by Art. 19 (1) (a) of the Constitution,
which is in these terms :
''19. (1) All citizens shall have the right­
(a) to freedom of speech and expression..........."
This guaranteed right is subject to the right of the legislature to impose
reasonable restrictions, the ambit of which is indicated by cl. (2) which, in
its amended form reads as follows :

"(2)   Nothing   in   sub­clause   (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 sub­clause in the
interests of the security of the State, friendly relations with foreign
State, public order, decency or morality, or in relation to contempt
of court, defamation or incitement to an offence."
It his not been questioned before us that the fundamental right guaranteed
by   Art.   19(1)(a)   of   the   freedom   of   speech   and   expression   is   not   an
absolute  right.   It  is common  ground  that   the  right  is subject  to  such
reasonable restrictions as would come within the purview of cl. (2), which
comprises  (a)  security  of the State,  (b)  friendly  relations  with  foreign
States, (c) public order, (d) decency or morality, etc. With reference to the
constitutionality of S. 124A or S. 505 of the Indian Penal Code, as to how
far they are consistent with the requirements of cl. (2) of Art. 19 with
particular reference to security of the State and public order, the section, it
must be noted, penalises any spoken or written words or signs or visible
representations, etc., which have the effect of bringing, or which attempt to
bring into hatred or contempt or excites or attempts to excite disaffection
towards  the   Government  established   by   law.  Now,  the   expression   "the
Government established by law" has to be distinguished from the persons
for   the   time   being   engaged   in   carrying   on   the   administration.
"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 S. 124A has been characterised,
comes, under Chapter VI relating to offences against the State. Hence any
acts within the meaning if S. 124 A which have the effect of subverting the
Government  of bringing  that  Government  into  contempt  or hatred,  or
creating disaffection against it, would be within the penal statute because
the felling of disloyalty to the Government established by law or enmity to
it imports the idea of tendency to public disorder by the use of actual
violence or incitement to violence. In other words, any 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 in question. But the
section has taken care to indicate clearly that strong words used to express
disapprobation   of   the   measures   of   Government   with   a   view   to   their
improvement or alteration by lawful means would not come within the
section.   Similarly,   comments,   however   strongly   worded,   expressing
disapprobation of actions of the Government, without exciting those feeling
which generate the inclination to cause public disorder by acts of violence,
would not be penal. In other words, disloyalty to Government established
by law is not the same thing as commenting in strong terms upon the
measures or acts of Government, or its agencies, so as to ameliorate 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..
25. It has not been contended before us that if a speech or a writing excites
people to violence or have the tendency to create public disorder, it would
not come within the definition of 'sedition'. What has been contended is
that a person who makes a very strong speech or uses very vigorous words
in a writing directed to a very strong criticism of measures of Government
or acts of public officials, might also come within the ambit of the penal
section. But in our opinion, such words written or spoken would be outside
the scope of the section. In this connection, it is pertinent to observe that
the 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 democratic form of Government
that our Constitution has established. This Court, as the custodian and
guarantor of the fundamental rights of the citizens, has the duty cast upon
it of striking down any law which unduly restricts the freedom of speech
and expression with which we are concerned in this case. But the freedom
has   to   be   guarded   against   becoming   a   licence   for   vilification   and
condemnation of the Government established by law, in words which incite
violence or have the 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 Government established by law or with the
intention of creating public disorder. The Court has, therefore, the duty
cast upon it of drawing a clear line of demarcation between the ambit of a
citizen's   fundamental   right   guaranteed   under   Art.   19(1)   (a)   of   the
Constitution   and   the   power   of   the   legislature   to   impose   reasonable
restrictions on that guaranteed right in the interest of, inter alia, security
of the State and public order. We have, therefore, to determine how far the
Ss. 124A and 505 of the Indian Penal Code could be said to be within the
justifiable limits of legislation. If it is held, in consonance with the views
expressed by the Federal Court in the case of 1942 FCR 38 : (AIR 1942 FC
22), that the gist of the offence of 'sedition' is incitement to violence or the
tendency or the intention to create public disorder by words spoken or
written, which have the tendency or the effect of bringing the Government
established by law into hatred or contempt or creating disaffection in the
sense of disloyalty to the State, in other words bringing the law into line
with the law of sedition in England, as was the intention of the legislators
when they introduced S. 124A into the Indian Penal Code in 1870 as
aforesaid, the law will be within the permissible limits laid down in cl. (2)
of Art.  19 of the Constitution.  If on the other  hand  we give a literal
meaning to the words of the section,  divorced from all the antecedent

background in which the law of sedition has grown, as laid down in the
several decisions of the Judicial Committee of the Privy Council, it will be
true to say that the section is not only within but also very much beyond
the limits laid down in cl. (2) aforesaid.
26. In view of the conflicting decisions of the Federal Court and of the
Privy Council, referred to above, we have to determine whether and how
far the provisions of Ss. 124A and 505 of the Indian Penal Code have to be
struck down as unconstitutional. 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 expression.  There  can be no doubt  that apart from the
provisions of cl. (2) of Art. 19, Ss. 124A and 505 are clearly violative of
Art. 19(1) (a) of the Constitution. But then we have to see how far the
saving clause, namely, cl. 2. of Art. 19 protects the sections aforesaid.
Now, as already pointed out, in terms of the amended cl. (2), quoted
above, the expression "in the interest of. . . . . public order" are words of
great amplitude and are much more comprehensive an the expression "for
the maintenance of",, as observed by this Court in the case of Virendra v.
State of Punjab, 1958 SCR 308 at p. 317 : ((S) AIR 1957 SC 896 at p.
899). Any law which is enacted in the interest of public order may be
saved from the vice of constitutional invalidity. 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 sections would make them unconstitutional in view of
Art. 19 (l) (a) read with cl. (2). It is well settled 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   would   lean   in   favour   of   the   former
construction. The provisions of the sections read as a whole along with the
explanations, make it reasonably clear that the sections aim at rendering
penal only such activities as would be intended, or have a tendency, to
create disorder or disturbance of public peace by resort to violence. As
already pointed out, the explanations appended to the main body of the
section make it clear that criticism of public measures or comment on
Government action, however strongly worded, would be within reasonable
limits and would be consistent with the fundamental right of freedom of
speech and expression. It is only when the words, written or spoken, etc.
which have the pernicious tendency or intention of creating public disorder
or disturbance  of law an order that the law steps in to prevent  such
activities in the interest of public order, so construed, the section, in our
opinion, strikes the correct balance between individual fundamental rights
and the interest of public order. It is also well settled that in interpreting
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an  enactment   the  Court   should   have   regard   not   merely   to   the   literal
meaning of the words used, but also take into consideration the antecedent
history of the legislation its purpose and the mischief it seeks to suppress
vide (1) Bengal Immunity Co. Ltd. v State of Bihar, 1955­2 SCR 603 :
((S) AIR 1955 SC 661) and (2) R. M. D. Chamarbaugwala v. Union of
India, 1957 SCR 930 : ((S) AIR 1957 SC 628). Viewed in that light, we
have no hesitation in so construing the provisions of the sections impugned
in these cases as to limit their application to acts involving intention or
tendency to create disorder, or disturbance of law and order, or incitement
to violence.
14 I should be mindful of the fact that the case in hand is one wherein the
accused   is   praying   for   quashing   of   the   F.I.R.   at   a   stage   when   the
investigation is in progress. I should look into the allegations levelled in
the F.I.R., as they are without adding or subtracting anything from it. I
am of the view that a speech or a statement, in which the speaker exhorts
the persons, who are listening to him, to resort to violence, prima facie,
could be said to be intended to excite disaffection towards the established
Government and amounts to an offence under Section 124A of the Indian
Penal Code. To put it in other words, to advise a person to  persuade to
violence as a means of attaining a particular goal or seeking revenge is not
less objectionable then advising that person to commit violence himself for
that purpose. In either case, the advice is to pursue a course of action, it is
calculated to disturb the tranquility of the State. It is a recommendation to
oppose the established Government by force.”
“16  WHAT MEANING SHOULD BE ATTACHED TO THE EXPRESSION
THE GOVERNMENT ESTABLISHED BY LAW:
16.1 The Supreme Court in Kedar Nath Singh (supra) observed that the
expression   the   Government   established   by   law   should   be   distinguished
from   the   persons   for   the   time   being   engaged   in   carrying   on   the
administration. 
16.1 This expression means Government rule and its representatives as
such, ­ the existing political system as distinguished from any particular
set of administrators. The established authority which governs the country
and administrators its public affairs includes the representatives to whom
the task of government is ens trusted. It denotes the person or persons
authorized by law to administer Executive Government  in any part of
India...the feelings, which it is the object of section 124A to prohibit, may
be excited towards the Government in a variety of ways, & it is possible to
excite such feelings towards the Government by an unfair condemnation of
any of its services. Whether in a particular case the condemnation of any
service   is   sufficient   to   excite   any   feeling   of   hatred   or   contempt   or
disaffection towards Government by law established in India, must depend
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upon   the   nature   of   the   criticism,   the   position   of   the   service   in   the
administration and all the other circumstances of the case. It would be a
question   of   fact   to   be   determined   in   each   case   with   reference   to   its
circumstances.   In   this   sense   the   Government   includes   not   only   the
Government of India but also Local Government. Government does not
mean the person or persons in charge of administration for the time being.
It   means   the   person   or   persons   collectively,   in   succession,   who   are
authorized to administer Government for the time being. One particular
set of persons may be open to objection, and to assail them and to attack
them and excite hatred against them is not necessarily exciting hatred
against the Government because they are only individuals, and are not
representatives of that abstract conception which is called Government.
There is a clear distinction between the Government and the individual
officers employed under the Government. Words bringing the former into
hatred or contempt constitute sedition, but similar words directed against
the latter can only infringe the law of libel. There may be instances of
criticism of subordinate officials that would not offend the rule to bring
into hatred or contempt or excite disaffection towards Government and it
is also easy to image instances that would. No general rule can be laid
down. No substantial distinction can be drawn between the Government
established by law in India and the Executive Government.
[See: 
1   Sundar   lal   (1919)   42   All   233   (FB);   Kshiteeshchandra   Ray
Chaudhuri (1932) 59 Cal 1197. 
2 See Bal G Tilak AIR 1916 Bom 9: 18 Cri LJ 567, 605; Dhrendra
Nath Sen (1938) 2 Cal 672. 
3   Besant   (1916)   39   Mad   1085   (SB);   Kshiteeshchandra   Ray
Chaudhuri (1932) 59 Cal 1197. 
4 Per Batty J, In Bhaskar Balvant Bhopatkar (1906) 8 Bom LR 421,
438: 4 Cri LJ 1: 30 Bom 421. 
5 Raj Pal (1922) 3 Lah 405 (SB)
6 Sat Parkash AIR 1941 Lah 165: 42 Cri LJ 682 .
7   See   Anadabazar   Patrika   (1932)   60   Cal   408   (SB);
Kshiteeshchandra Ray Chaudhuri (1932) 59 Cal 1197.
17 The Government established by law acts through human agency and
admittedly, the police service or force is itself a principal agency for the
administration and maintenance of the law and order in the State. When
a person makes a statement or gives an advice to resort to violence by
killing 4 to 5 police officers, he could be said to have criticized the police
force or the service en bloc. In such circumstances, whether one could be
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said to have excited disaffection against the Government or not would be a
pure question of fact and such question can be determined only after the
entire picture is clear i.e. after the investigation is over and the chargesheet
is filed. 
18 In the aforesaid context, I may usefully refer to and rely upon the
decision of the Bombay High Court. A Division Bench of the Bombay High
Court in the case of  Bal Gangadhar Tilak v. Emperor [ AIR 1916
Bombay 9] held as under: 
First, the, it was said that there could be no excitement or disaffection in
these speeches, inasmuch as the the speaker openly and sincerely professed
his loyalty to His Majesty the King­Emperor and the British Parliament. To
that I have only to say that, as I read S. 124­A, it is clear that to a charge
of  exciting  disaffection   towards   the  Government   established   by   law   in
British India a profession, however sincere, of loyalty to His Majesty and
the British Parliament is no answer whatever. 
Secondly,   it  was  contended   that  the  speeches  could  not   in law  offend
against  S.   124   A,   because,  the  speakers  attack   was  made  not   on  the
Government nomination but on the Civil Service only. That, I think, is not
quite so in fact. But assuming it to be so, it affords no answer to the
charge.   For   the   government   established   by   law   acts   through   human
agency, and admittedly the Civil Service is its principal agency for the
administration of the country in times of peace. Therefore where, as here,
you criticise the Civil Service  en bloc,  the question whether you excite
disaffection against the Government or not seems to me a pure question of
fact. You do so if the natural effect of your words, infusing hatred of the
Civil   Service,   is   also   to   infuse   hatred   or   contempt   of   the   established
Government whose accredited against the Civil Service is. You avoid doing
so if, preferring appropriate language of moderation, you use words which
do not naturally excite such hatred of Government. It is, I think, a mere
question of fact. 
Passing now to the speeches themselves must be read as a whole. A fair
construction   must  be  put  upon   them,  straining   nothing  either   for  the
Crown   or   for   the   applicant,   and   paying   more   attention   to   the   whole
general effect  than to any  isolated  words or passages.  The  question  is
whether upon such fair construction these speeches offend under S. 124­A
or not. Now, first, as as to the general aim of the speaker it is, I think,
reasonably clear that in contending for what he describes as swarajya his
object is to obtain for Indians an increased and gradually increasing share
of political authority and to subject the administration of the country to
the control of the people or peoples of India. I am of opinion that the
advocacy of such an object is not per se a infringement of the law, nor has
the learned Advocate General contended otherwise. 
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It would be a question of fact to be determined in each case with reference
to its circumstances. But as a mater of law it cannot be said that the
condemnation   of   a   particular   service   under   the   Government   by   law
established in British India can never be sufficient to excite any of the
feelings prohibited by S. 124­A. Towards such Government. I now come to
the question as to whether the publication of the matter contained in these
speeches is punishable under S. 124­A. It is quite clear that the speaker
must not bring or attempt to bring into hatred or contempt, or excite or
attempt  to excite  disaffection  towards,  His Majesty  or the Government
established by law in British India; and it is also clear that even in the case
of   comments   falling   under   Expln.2   or   3   of   the   section,   this   essential
condition must be observed. In the present case Mr. Jinnah has laid great
emphasis   on   the   fact   that   throughout   the   speeches,   the   speaker   has
expressed his loyalty to His Majesty. But this cannot avail him. He is not
charged with exciting disaffection towards His Majesty. The Crown case is
that   he   has   attempted   to   bring   into   hatred   or   contempt   or   to   excite
disaffection towards the Government established by law in British India;
and it is no answer to this charge to say that he has expressed his loyalty
to His Majesty.”
23 In   view   of   the   above,   I   have   no   hesitation   in   coming   to   the
conclusion that more than a prima facie case is made out so far as the
offence   of   sedition   punishable   under   Section   124A   of   the   IPC   is
concerned. 
24 I have also dealt with at length the issue whether any case of
promoting enmity between different groups on grounds of religion, etc,
could be said to have been made out. I have discussed this issue at
length   in   my   above   referred   judgment.   I   may   quote   the   relevant
observations as under: 
“25  Let me look into the applicability of Sections 153A and 505(2) of
the Indian Penal Code is concerned. 
26  Section 153­A was amended by the Criminal and Election Laws
(Amendment) Act 1969 ­ Act No. XXXV of 1969. It consists of three clauses
of   which   clauses   (a)   and   (b)   alone   are   material   now.   By   the   same
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amending Act sub­section (2) was added to Section 505 of the Indian
Penal Code. Clauses (a) and (b) of Section 153­A and Section 505 (2) are
extracted below :
"153­A. Promoting enmity between different groups on grounds of
religion, race, place of birth, residence, language, etc., and doing
acts prejudicial to maintenance of harmony.­
(1) Whoever­
(a) by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote, on
grounds of religion, race, place of birth, residence, language, caste
or  community   or  any   other   ground   whatsoever,   disharmony   or
feelings   of  enmity,  hatred   or   ill­will   between   different   religious,
racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of
harmony between different religious, racial, language or regional
groups or castes or communities, and which disturbs or is likely to
disturb the public tranquillity, or
....................................
shall be punished with imprisonment which may extend to three
years, or with fine, or with both."
"505(2)  Statements creating or promoting enmity, hatred or illwill
between classes.­ Whoever makes, publishes or circulates any
statement   or   report   containing   rumour   or   alarming   news   with
intent to create or promote, or which is likely to create or promote,
on grounds of religion, race, place of birth, residence, language,
caste or community or any other ground whatsoever, feelings of
enmity,   hatred   or   ill­will   between   different   religious,   racial,
language  or regional  groups  or castes  or communities,  shall  be
punished with imprisonment which may extend to three years, or
with fine, or with both."
The common ingredient in both the offences is promoting feeling of enmity,
hatred   or   ill­will   between   different   religious   or   racial   or   linguistic   or
regional groups or castes or communities. Section 153­A covers a case
where a person by "words, either spoken or written, or by signs or by
visible   representations"   promotes   or   attempts   to   promote   such   feeling.
Under Section 505(2), promotion of such feelings should have been done
by   making   and   publishing   or   circulating   any   statement   or   report
containing rumour or alarming news. [See: Bilal Ahmed Kaloo v. State
of Andhra Pradesh (1997 Cri. L. J. 4091]
27  The   Supreme   Court   has   held   in  Balwant   Singh   v.   State   of
Punjab, (1995) 3 SCC 214 : (1995 AIR SCW 2803) that mens rea is a
necessary ingredient for the offence under Section 153­A. Mens rea is an
equally necessary postulate for the offence under Section 505(2) also as
could be discerned from the words "with intent to create or promote or
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which is likely to create or promote" as used in that sub­section.  [See:
Bilal Ahmed Kaloo (supra)]
28  The   main   distinction   between   the   two   offences   is   that   while
publication   of   the   words   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.[See:
Bilal Ahmed Kaloo (supra)]
29  The common feature in both the sections being promotion of feeling
of   enmity,   hatred   or   ill­will   "between   different"   religious   or   racial   or
language or regional groups or castes and communities it is necessary that
at   least   two   such   groups   or   communities   should   be   involved.   Merely
inciting the feeling of one community or group without any reference to
any other community or group cannot attract either of the two sections.
[See: Bilal Ahmed Kaloo (supra)]
30  In   view   of   the   above   and   having   regard   to   the   case   of   the
prosecution,  I am of the view that although it could be said that the
members of the Patidar Patel community have been provoked, but such
provocation has nothing to do with any other religion, race or linguistic or
regional  group or community.  The police force  of the State cannot  be
brought within the purview of the term community.”
25 Thus, so far as Sections 153A and 153B are concerned, I am of the
view that the same is not attracted in the case in hand. To that extent,
the F.I.R. deserves to be quashed. 
26 I shall now deal with the most serious part of the allegation i.e.
waging of war punishable under Section 121 of the IPC, and conspiracy
to commit an offence punishable under Section 121, which is an offence
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punishable under Section 121A of the IPC. 
27 WAGING WAR (SECTION 121 OF THE IPC): 
“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 Government of India. A has committed the
offence defined in this section.”
28 The   Supreme   Court   in   the   case   of  Nazir   Khan   (supra)  has
explained   in   details   the   expression   “waging   war”.   I   may   quote   the
observations made by the Supreme Court in paras 27, 28, 29 and 30 as
under:
“27. It is the fundamental right of every citizen to have his own political
theories   and   ideas   and   to   propagate   them   and   work   for   their
establishment so long as he does not seek to do so by force and violence or
contravene  any  provision  of law.  Thus,  where  the  pledge  of  a Society
amounted only to an undertaking to propagate the political faith that
capitalism and private ownership are dangerous to the advancement of
society   and   work   to   bring   about   the   end   of   capitalism   and   private
ownership and the establishment of a socialist State for which others are
already working under the lead of the working classes, it was held that it
was open to the members of the Society to achieve these objects by all
peaceful means, ceaselessly fighting public opinion that might be against
them and opposing those who desired the continuance of the existing order
of society and the present Government; that it would also be legitimate to
presume that they desired a change in the existing Government so that
they could carry out their programme and policy; that the mere use of the
words 'fight' and 'war' in their pledge did not necessarily mean that the
Society planned to achieve its object by force and violence.
1.   About   the   expression   'Whoever'   the   law   Commissioners   say   :   (2nd
Report : Section 13) "The laws of a particular nation or country cannot be
applied to any persons but such as owe allegiance to the Government of the
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country, which allegiance is either perpetual, as in the case of a subject by
birth or naturalization, and c., or temporary, as in the case of a foreigner
residing in the country. They are applicable of course to all such as thus
owe   allegiance   to   the   Government,   whether   as   subjects   or   foreigners,
excepting as excepted by reservations or limitations which are parts of the
laws in question.
2. Regarding 'Wage war' according to the Law Commissioners, these words
"seems naturally to import a levying of war by one who throwing off the
duty of allegiance arrays himself in open defiance of his sovereign in like
manner and by the like means as a foreign enemy would do, having gained
footing within the realm. There must be an insurrection, there must be
force accompanying that insurrection, and it must be for an object of a
general nature.
28. The expression "waging war" means and can only mean waging war in
the manner usual in war. In other words, in order to support a conviction
on such a charge it is not enough to show that the persons charged have
contrived to obtain possession of an armoury and have, when called upon
to surrender it, used the rifles and ammunition so obtained against the
Government troops. It must also be shown that the seizure of the armoury
was part and parcel of a planned operation and that their intention in
resisting the troops of the Government was to overwhelm and defeat these
troops and then to go on and crush any further opposition with which they
might meet until either the leaders of the movement succeeded in obtaining
the possession of the machinery of Government or until those in possession
of it yielded to the demands of their leaders.
29.  The word "wages" has the same meaning  as "levying"  used in the
English statute. In Lord George Gorden's case (1784) 21 St Tr 485, 644,
Lord Mansfield said : 
"There are two kinds of levying war :­ one against the person of the
king;  to imprison,  to dethrone, or to kill him;  or to make him
change measures, or remove counsellors :­ the other, which is said
to be levied against the majesty of the king, or, in other words,
against him in his regal capacity; as when a multitude rise and
assemble to attain by force and violence any object of a general
public nature; that is levying war against the majesty of the king;
and most reasonably so held, because it tends to dissolve all the
bonds of society, to destroy property, and to overturn Government;
and by force or arms, to restrain the king from reigning according
to law."
30.   An   assembly   armed   and   arrayed   in   a   warlike   manner   for   any
treasonable  purpose   is bellum   levatum,   though   not   bellum   percussum.

Lifting and marching are sufficient overt acts without coming to a battle or
action.
"No amount of violence, however great, and with whatever circumstances
of a warlike kind it may be attended, will make an attack by one subject
on another high treason. On the other hand, any amount of violence,
however insignificant, directed against the King will be high treason, and
as soon as violence has any political objects, it is impossible to say that it is
not directed against the king, in the sense of being armed opposition to the
lawful   exercise   of   his   power.   Where   the   object   of   a  mob   is  not   mere
resistance to a District Magistrate but the total subversion of the British
power   and   the   establishment   of   the   Khilafat   Government,   a   person
forming part of it and taking part in its actions is guilty of waging war.
When a multitude rises and assembles to attain by force and violence any
object of a general public nature, it amounts to levying war against the
Government.   It   is   not   the   number   of   the   force,   but   the   purpose   and
intention, that constitute the offence and distinguish it from riot or any
other rising for a private purpose. The law knows no distinction between
principal and accessory, and all who take part in the treasonable act incur
the same guilt. In rebellion cases it frequently happens that few are let into
the   real   design,   yet   all   that   join   in   it   are   guilty   of   the   rebellion.   A
deliberate   and   organized   attack   upon   the   Government   forces   would
amount to a waging war if the object of the insurgents was by armed force
and violence to overcome the servants of the Government and thereby to
prevent the general collection of the capitation tax." (See Aung Hia's case
(1931) 9 Rangoon page 404). AIR 1931 Rangoon 235 : 33 Cri LJ 205)
(SB)
"There is a diversity between levying of war and committing of a great riot,
a rout, or an unlawful assembly. For example, as if three, or four, or more,
do rise to burn, or put down an inclosure in Dale, which the lord of the
manor of Dale hath made there in the particular place; this or the like is a
riot, a rout or an unlawful assembly, and no treason. But if they had risen
of purpose to alter religion established within the realm, or laws, or to go
from town to town generally, and to cast down inclosures, this is a levying
of war (though there be great number of the conspirators) within the
purview of this statute, because the pretence is public and general, and not
private and particular." (See Cokes' Inst. Ch. 1, 9)
29 The concept of war embodied in Section 121 IPC is not to be
understood in the international law sense of inter country war involving
military   operations   by   and   between   two   or   more   hostile   countries.
Section 121 IPC is not meant to punish prisoners of war of a belligerent

nation.   Apart   from   the   legislative   history   of   the   provision   and   the
understanding of the expression by various High Courts during the preindependence
days, the Illustration to Section 121 itself makes it clear
that   'war'   contemplated   by   Section   121   is   not   conventional   warfare
between   the   two   nations.   The   organizing   or   joining   an   insurrection
against the Government of India is also a form of war. "Insurrection" as
defined in dictionaries and as commonly understood connotes a violent
uprising by a group directed against the Government in power or the
civil  authorities.  "Rebellion, revolution  and civil  war' are  progressive
stages in the development of civil unrest, the most rudimentary form of
which   is   insurrection.   Unlawful   assemblies,   riots,   insurrections,
rebellions, levying of war are offences which run into each other and not
capable of being marked off by perfectly definite boundaries. All of them
have in common one feature, namely, that the normal tranquility of a
civilized society is, in each of the cases mentioned, disturbed either by
actual force or at least by the show and threat of it.
30  The offence of waging war was inserted in the Indian Penal Code
to accord with the concept of levying war in the English Statutes of
treason, the first of which dates back to 1351 A.D. I should, therefore,
understand the expression "wages war" occurring in Section 121 IPC
broadly in the same sense in which it was understood in England while

dealing   with   the   corresponding   expression   in   the   Treason   Statute.
However, the Court should view the expression with the eyes of the
people of free India and must also modulate and restrict the scope of
observations too broadly made in the vintage decisions so as to be in
keeping   with   the   democratic   spirit  and  the  contemporary  conditions
associated with the working of our democracy.
31   The   most   important   is   the   intention   or   purpose   behind   the
defiance or rising against the Government. The intention and purpose of
the war­like operations directed against the Governmental machinery is
an  important criterion. If the  object and purpose  is to strike  at the
sovereign authority of the Ruler or the Government to achieve a public
and general purpose in contra­distinction to a private and a particular
purpose; it is an important indicia of waging war. Of course, the purpose
must be intended to be achieved by use of force, arms and by defiance of
Government troops or armed personnel deployed to maintain the public
tranquility. The number of force, the manner in which they are arrayed,
armed or equipped is immaterial. Even a limited number of persons who
carry powerful explosives and missiles without regard to their own safety
can cause more devastating damage than a large group of persons armed
with ordinary weapons or fire arms. Then, the other settled proposition
is that there need not be the pomp and pageantry usually associated

with war such as the offenders forming themselves in the battle­line and
arraying in a war like manner. Even a stealthy operation to overwhelm
the armed or other personnel deployed by the Government and to attain
a   commanding   position   by   which   terms   could   be   dictated   to   the
Government might very well be an act of waging war.
32 Even if the conspired purpose and objective falls short of installing
some   other   authority   or   entity   in   the   place   of   an   established
Government, it does detract from the offence of waging war. There is no
warrant for such a truncated interpretation.
33  Section 121 of the I.P. Code embraces every description of war
whether by insurrection or invasion. The true criterion is the purpose or
intention   with   which   the   violent   acts   are   alleged   to   have   been
committed. The object of such violent acts must be to attain by force and
violence, an object of a general public nature thereby striking directly
against the Government's authority.
34 The concept of war embodied in Section 121 of the Indian Penal
Code has been the subject matter of various decisions. 
The observations of LORD HOLT, C. J. in a case reported in HOLT'S
REPORTS (1688­1700) at 681­682 reads as under:­
"Holt   L.   C.J.   in   Sir   John   Friend's   case   says,   'if   persons   do   assemble

themselves and act with force in opposition to some law which they think
inconvenient, and hope thereby to get it repealed, this is a levying war and
treason". "I tell you the joint opinion of us all, that, if this multitude
assembled   with   intent,   by   acts   or   force   and   violence,   to   compel   the
legislature to repeal a law, it is high treason". The question always is,
whether the intent is, by force and violence, to attain an object of a general
and public nature, by any instruments; or by dint of their numbers".
35 The speech of LORD MANSFIELD, CJ addressed to the Jury in
LORD GEORGE GORDON'S CASE (1781) is often quoted to unfold the
meaning of the expression 'levying war against the King'. To quote the
words of Mansfield, C.J.: 
"There are two kinds of levying war: one against the person of the King: to
imprison, to dethrone, or to kill him; or to make him change measures, or
remove  counsellors  : the other,  which  is said to be levied  against  the
majesty of the King or, in other words, against him in his regal capacity;
as when a multitude rise and assemble to attain by force and violence any
object of a general public nature; that is levying war against the majesty of
the King; and most reasonably so held, because it tends to dissolve all the
bonds of society, to destroy property, and to overturn Government ; and by
force of arms, to restrain the King from reigning, according to law".
"No amount of violence, however great, and with whatever circumstances
of a warlike kind it may be attended, will make an attack by one subject
on another high treason. On the other hand, any amount of violence,
however insignificant, directed against the King will be high treason, and
as soon as violence has any political objects, it is impossible to say that it is
not directed against the king, in the sense of being armed opposition to the
lawful exercise of his power".
36 In 1820 LORD PRESIDENT HOPE in his summing up speech to the
jury in  REX VS. ANDREW HARDIE,1820 1 STNS 610  explained the
distinction between levying a war and committing a riot in the following
words: 

"Gentlemen, it may be useful to say a few words on the distinction between
levying war against the King and committing a riot. The distinction seems
to consist in this, although they may often run very nearly into each other.
Where the rising or tumult is merely to accomplish some private purpose,
interesting only to those engaged in it, and not resisting or calling in
question  the King's  authority  or prerogative  then the  tumult,  however
numerous or outrageous the mob may be, is held only to be a riot. For
example, suppose a mob to rise, and even by force of arms to break into a
particular prison and rescue certain persons therein confined, or to oblige
the Magistrates to set them at liberty or to lower the price of provisions in
a certain market, or to tear down certain enclosures, which they conceive
to   encroach   on   the   town's   commons.   All   such   acts,   though   severely
punishable, and though they may be resisted by force, do not amount to
treason. Nothing is pointed against either the person or authority of the
King".
"But, gentlemen, wherever the rising or insurrection has for its object a
general purpose, not confined to the peculiar views and interests of the
persons concerned in it, but common to the whole community, and striking
directly the King's authority or that of Parliament, then it assumes the
character of treason. For example, if mobs were to rise in different parts of
the country to throw open all enclosures and to resist the execution of the
law regarding enclosures wheresoever attempted, to pull down all prisons
or Courts of justice, to resist all revenue officers in the collecting of all or
any of the taxes; in short, all risings to accomplish a general purpose, or to
hinder   a   general   measure,   which   by   law   can   only   be   authorized   or
prohibited by authority of the King or Parliament, amount to levying of
war against the King and have always been tried and punished as treason.
It is, therefore, not the numbers concerned, nor the force employed by the
people   rising   in   arms,   but   the   object   which   they   have   in   view   that
determines the character of the crime,  and will make it either riot or
treason, according as that object is of a public and general, or private and
local nature".
37 Then in 1839, TINDAL, C. J. while summing up the Jury in the
trial of John Frost in the year 1839 [All ER Reprint 1835­1842 P. 106 at
P. 117] stated that it was: "essential to the making out of the charge of
high treason by levying war, there must be an insurrection, there must
be   force   accompanying   that   insurrection;   and   it   must   be   for   the
accomplishment of an object of a general nature".

[See: Syed Mohammed Abrahim vs.
State of Karnataka (2014 Law Suit (KAR) 2920)]
38 The   Apex   Court   in   the   case   of  STATE  (NCT  OF  DELHI)  VS.
NAVJOT   SANDHU   ALIAS   AFSAN   GURU,   2005(11)   SCC   600  has
explained in details as to what amounts to waging war or abetting or
attempting to waging war, punishable under Section 121 of the IPC and
has held as under: 
258. In interpreting the expression 'waging war', the Indian cases of preindependence
days, though few they are, by and large cited with approval
the 18th and 19th century English authorities. The term 'wages war' was
considered to be a substitute for 'levying war' in the English Statute of
High Treason of 1351 i.e Statute 25, Edward III, c.2. In the famous book
of Sir James F. Stephen "A History of the Criminal Law of England" (1883
publication),   it   was   noted   that   the   principal   heads   of   treason   as
ascertained by that Statute were: (1) 'imagining' the King's death" (2)
levying war and (3) adhering to the King's enemies.
264. Whether this exposition of law on the subject of levying war continues
to be relevant in the present day and in the context of great sociopolitical
developments that have taken place is a moot point.
272. Sections 121 and 121­A occur in the chapter "Offences against the
State".   The   public   peace   is  disturbed   and   the   normal   channels   of   the
Government are disrupted by such offences which are aimed at subverting
the   authority   of   the   Government   or   paralyzing   the   constitutional
machinery. The expression "war" preceded by the verb "wages" admits of
many shades of meaning and defies a definition with exactitude.
274.  The conspiracy to commit  offences  punishable  under  Section  121
attracts punishment under Section 121A and the maximum sentence could
be imprisonment for life. The other limb of Section 121A is the conspiracy
to overawe by means of criminal force or the show of criminal force, the
Central Government or any State Government. The explanation to Section
121­A clarifies that it is not necessary that any act or illegal omission
should take place pursuant to the conspiracy, in order to constitute the
said offence.
275.   War,   terrorism   and   violent   acts   to   overawe   the   established

Government have many things in common. It is not too easy to distinguish
them, but one thing is certain, the concept of war imbedded in Section 121
is not to be understood in international law sense of inter­country war
involving   military   operations   by   and   between   two   or   more   hostile
countries.   Section   121   is   not   meant   to   punish   prisoners   of   war   of   a
belligerent nation. Apart from the legislative history of the provision and
the understanding of the expression by various High Courts during the
preindependence days, the Illustration to Section 121 itself makes it clear
that   'war'   contemplated   by   Section   121   is   not   conventional   warfare
between two nations. Organizing or joining an insurrection against the
Government of India is also a form of war. 'Insurrection' as defined in
dictionaries and as commonly understood connotes a violent uprising by a
group directed against the Government in power or the civil authorities.
"Rebellion,   revolution   and   civil   war   are   progressive   stages   in   the
development   of   civil   unrest   the   most   rudimentary   form   of   which   is
'insurrection' vide Pan American World Air Inc. Vs. Actna Cas & Sur Co.
[505, F.R. 2d, 989 at P. 1017]. An act of insurgency is different from
belligerency. It needs to be clarified that insurrection is only illustrative of
the expression 'war' and it is seen from the old English authorities referred
tothat it would cover situations analogous to insurrection if they tend to
undermine the authority of the Ruler or Government.
276. Unlawful assemblies, riots, insurrections, rebellions, levying of war
are offences which run into each other and not capable of being marked off
by perfectly definite boundaries. All of them have in common one feature,
namely, that the normal tranquility of a civilized society is, in each of the
cases mentioned, disturbed either by actual force or at least by the show
and threat of it.
277. To this list has to be added "terrorist acts" which are so conspicuous
now­a­days. Though every terrorist act does not amount to waging war,
certain terrorist acts can also constitute the offence of waging war and
there   is   no   dichotomy   between   the   two.   Terrorist   acts   can   manifest
themselves into acts of war. Terrorist acts prompted by an intention to
strike at the sovereign authority of the State/Government, tantamount to
waging war irrespective of the number involved or the force employed.
282. The intention and purpose of the warlike operations directed against
the governmental machinery is an important criterion. If the object and
purpose   is   to   strike   at   the   sovereign   authority   of   the   Ruler   or   the
Government to achieve a public and general purpose in contradistinction
to a private and a particular purpose, that is an important indicia of
waging war. Of course, the purpose must be intended to be achieved by use
of   force   and   arms   and   by   defiance   of   government   troops   or   armed
personnel deployed to maintain public tranquility.
283. However, a settled proposition is that there need not be the pomp and
pageantry   usually   associated   with   war   such   as   the   offenders   forming

themselves   in   battle   line   and   arraying   in   a   warlike   manner.   Even   a
stealthy operation to overwhelm the armed, or other personnel deployed by
the Government and to attain a commanding  position by which terms
could be dictated to the Government might very well be an act of waging
war.
284. The court must be cautious in adopting an approach which has the
effect of bringing within the fold of Section 121 all acts of lawless and
violent acts resulting in destruction of public properties, etc., and all acts
of violent resistance to the armed personnel to achieve certain political
objectives. The moment it is found that the object sought to be attained is
of a general public nature or has a political hue, the offensive violent acts
targeted   against   the   armed   forces   and   public   officials   should   not   be
branded as acts of waging war. The expression "waging war" should not be
stretched too far to hold that all the acts of disrupting public order and
peace irrespective of their magnitude and repercussions could be reckoned
as acts of waging war against the Government. A balanced and realistic
approach   is   called   for   in   construing   the   expression   "waging   war"
irrespective of how it was viewed in the long long past. An organized
movement attended with violence and attacks against the public officials
and armed forces while agitating for the repeal of an unpopular law or for
preventing burdensome taxes were viewed as acts of treason in the form of
levying war.
285. An aspect on which a clarification is called for is in regard to the
observation made in the old decisions that "neither the number engaged,
nor the force employed, nor the species of weapons with which they may be
armed" is really material to prove the offence of levying/waging war. These
are not irrelevant factors. They will certainly help the court in forming an
idea whether the intention and design to wage war against the established
Government   exists   or   the   offence   falls   short   of   it.   For   instance,   the
firepower or the devastating potential of the arms and explosives that may
be carried by a group of persons­may be large or small, as in the present
case, and the scale of violence that follows may at times become useful
indicators of the nature and dimension of the action resorted to. These,
coupled with the other factors, may give rise to an inference of waging
war.
286. In order to give rise to the offence of waging war, the avowed purpose
and design of the offence need not be to substitute another authority for
the Government of India. Even if the conspired purpose and objective falls
short   of   installing   some   other   authority   or   entity   in   the   place   of   an
established Government, it does not detract from the offence of waging
war. There is no warrant for such truncated interpretation. The chances of
success of such an operation need not be assessed to judge the nature of
criminality.

39 The Supreme Court in the case of  Jamiludin Nasir vs. State of
West Bengal [2014 (7) SCC 443]  considered the decision of  Navjot
Sandhu Alias Afsan Guru (supra) and culled out the following general
principles to be applied: 
“a) The most important is the intention and purpose behind the defiance
or raging against the government.
b) Though the modus operandi of preparing for the offensive act against
the government may be quite akin to the preparation in a regular war, it
is often said that the number of force,  the manner in which they are
arrayed, the arm and or equipments are immaterial.
c) Even a limited number of persons who carry powerful explosives and
missiles without regard to their own safety can cause more devastating
damage than a large group of persons armed with ordinary weapons or
firearms.
d) There need not be the pomp or pageantry usually associated with war
such as the offenders forming themselves in battle line and arraying in a
war­like manner.
e)  The Court must be cautious in adopting an approach which has the
effect of bringing within the fold of Section 121 all acts of lawless near and
violent acts resulting in destruction of public property, etc.
f) The moment it is found that the object sought to be attained is of a great
public  nature  or  has  a political  hue   the  offensive   violent   act  targeted
against the armed force and public officials should not be branded as acts
of 'waging war'.
g) The expression 'waging war' should not be stretched too far to hold that
all acts of disrupting public order and peace irrespective of their magnitude
and repercussions could be reckoned as acts of 'waging war' against the
government.
h) A balanced and realistic approach is called in construing the expression
'waging war' irrespective of how it was viewed in the long long past.
i) An organized movement attended with violence and attacks against the
public   officials   and   armed   forces   while   agitating   for   the   repeal   of   an
unpopular law or for preventing burdensome taxes were viewed as acts of
treason in the form of 'waging war'.

j) Neither the number engaged nor the force employed nor the species of
weapon with which they may be armed is really material to prove the
offence of waging war.
k) The single most important factor should be to think that in a case that
is being  considered  of waging  or attempting  to  wage  war  against  the
Government   of   India,   what   is   the   target   of   attack   chosen   by   the
conspirators and the immediate objective sought to be achieved thereby.
l) The planned operations if executed what is the extent of disaster spelt
out to the whole nation. Whether a war like situation lingering for days or
weeks   would   have   prevailed   and   such   offensive   acts   of   unimaginable
description   and   devastation   would   have   posed   a   challenge   to   the
government and the democratic institutions for the protection of which the
government of the day stands.
m) Was it mere desperate act of a small group of persons who were sure to
meet with death is to ignore the obvious realities and to stultify the wider
connotation of the expression of war chosen by the drafters of IPC.
n) The undoubted objective and the determination of the offenders was it
to impinge on the sovereign authority of the nation and its government.”
40 The Supreme Court in the case of Mohammed Ajmal Mohammad
Amir Kasab alias Abu Mujahid vs. State of Maharastra [AIR 2012 SC
3565] analyzed the concept of “waging war” against the Government of
India. I may quote the observations of the Supreme Court as under:
“540. The offences concerning "waging war" are in Chapter VI of the Penal
Code under the heading "of offences against the State". Section 121 uses
the phrase 'Government of India' and it provides as follows:­
"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."
541. Section 121A makes a conspiracy to commit offences punishable by
Section 121 per se an offence punishable with imprisonment for life or for
a period that may extend to ten (10) years. The explanation to the Section
makes it clear that the offence is complete even without any act or illegal

omission occurring in pursuance of the conspiracy. This Section uses the
expression 'the Central Government or any State Government'. The Section
reads as under:­
"121A. Conspiracy to commit offences punishable by Section 121. ­
Whoever within or without India conspires to commit any of the
offences punishable by Section 121,  or conspires to overawe,  by
means of criminal 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."
542.  Section 122 similarly makes collection of arms with intention of
"waging war" per se an offence, regardless of whether or not the arms were
put to actual use. This Section again uses the expression "Government of
India" and it reads as under:­
"122. Collecting arms, etc., with intention of waging war against
the   Government   of   India.   ­   Whoever   collects   men,   arms   or
ammunition or otherwise prepares to wage war with the intention
of   either   waging   or   being   prepared   to   wage   war   against   the
Government of India, shall be punished with imprisonment for life
or imprisonment of either description for a term not exceeding ten
years, and shall also be liable to fine."
543. Section 123 deals with 'Concealing with intent to facilitate design to
wage   war   against   the   Government   of   India'.   Section   125   deals   with
'Waging war against any Asiatic Power in alliance with the Government of
India', and Section 126 deals with 'Committing depredation on territories
of Power at peace with the Government of India'.
544. Here it may also be noted that Section 39 CrPC read with Section
176 of the Penal Code makes it an offence for any person who is aware of
the commission of, or of the intention of any person to commit, an offence
under Sections 121 to 126, both inclusive (that is, offences against the
State specified in Chapter VI of the Code), to omit giving any notice or
furnishing any information to any public servant. Moreover, Section 123
of   the   Penal   Code  makes   it  an  offence   to   conceal,   whether   by  act  or
omission, the existence of a design to "wage war" against the Government
of India, when intending by such concealment to facilitate, or knowing it
to be likely that such concealing will facilitate, the waging of such war.
545.The question that arises for consideration, therefore, is what is the

true import of the expression "Government of India"? In its narrower sense,
Government of India is only the executive limb of the State. It comprises a
group of people, the administrative bureaucracy that controls the executive
functions and powers of the State at a given time. Different governments,
in continuous succession, serve the State and provide the means through
which   the   executive   power   of   the   State   is   employed.   The   expression
"Government of India" is surely not used in this narrow and restricted
sense in Section 121. In our considered view, the expression "Government
of India" is used in Section 121 to imply the Indian State, the juristic
embodiment of the sovereignty of the country that derives its legitimacy
from the collective will and consent of its people. The use of the phrase
"Government of India" to signify the notion of sovereignty is consistent
with the principles of Public International Law, wherein sovereignty of a
territorial unit is deemed to vest in the people of the territory and exercised
by a representative government.
546.It is important to note here that earlier the word used in Section 121
(as well as all the other Sections referred to above) was "Queen". After the
formation of the republic under the Constitution it was substituted by the
expression  "Government  of India" by the Adaptation  of Laws  Order  of
1950. In a republic, sovereignty vests in the people of the country and the
lawfully   elected   government   is   simply   the   representative   and   a
manifestation of the sovereign, that is, the people. Thus, the expression
"Government of India", as appearing in Section 121, must be held to mean
the State or interchangeably the people of the country as the repository of
the sovereignty of India which is manifested and expressed through the
elected Government.
547. An illuminating discussion on the issue of "Waging war against the
Government of India" is to be found in this Court's decision in Navjot
Sandhu   (AIR   2005   SC   3820).   In   paragraph   272   of   the   judgment   P.
Venkatarama Reddi, J., speaking for the Court, referred to the report of
the Indian Law Commission that examined the draft Penal Code in 1847
and quoted the following passage from the report:
"We   conceive   the   term   'wages   war   against   the   Government'
naturally to import a person arraying himself in defiance of the
Government in like manner and by like means as a foreign enemy
would do, and it seems to us, we presume it did to the authors of
the Code that any definition of the term so unambiguous would be
superfluous."
548.To us, the expression, "in like manner and by like means as a foreign
enemy" (highlighted by us in the above quotation), is very significant to
understand the nature of the violent acts that would amount to waging
war. In "waging war", the intent of the foreign enemy is not only to disturb
public peace or law and order or to kill many people. A foreign enemy

strikes at the sovereignty of the State, and his conspiracy and actions are
motivated by that animus.
549. In Navjot Sandhu (AIR 2005 SC 3820), the issue of "waging war"
against the Government of India has also been considered in relation to
terrorist acts and in that regard the Court observed and held as follows:
"275. War, terrorism and violent acts to overawe the established
Government have many things in common. It is not too easy to
distinguish them??
276. It has been aptly said by Sir J.F. Stephen:
"Unlawful assemblies, riots, insurrections, rebellions, levying of war
are offences which run into each other and not capable of being
marked off by perfectly definite boundaries. All of them have in
common  one feature,  namely,  that the normal  tranquillity of a
civilized society is, in each of the cases mentioned, disturbed either
by actual force or at least by the show and threat of it."
277.   To   this  list   has  to  be  added   "terrorist   acts"   which  are   so
conspicuous   now­a­days.   Though   every   terrorist   act   does   not
amount to waging war, certain terrorist acts can also constitute the
offence of waging war and there is no dichotomy between the two.
Terrorist acts can manifest themselves into acts of war. According to
the learned Senior Counsel for the State, terrorist acts prompted by
an   intention   to   strike   at   the   sovereign   authority   of   the
State/Government, tantamount to waging war irrespective of the
number involved or the force employed.
278. It is seen that the first limb of Section 3(1) of POTA­
"with   intent   to   threaten   the   unity,   integrity,   security   or
sovereignty of India or to strike terror in the people or any
section of the people does any act or thing by using bombs,
dynamite   or   other   explosive   substances   or   inflammable
substances or firearms or other lethal weapons or poisons or
noxious gases or other chemicals or by any other substances
(whether biological or otherwise) of a hazardous nature or
by any other means whatsoever".
and the acts of waging war have overlapping features. However, the degree
of animus or intent and the magnitude of the acts done or attempted to be
done   would   assume   some   relevance   in   order   to   consider   whether   the
terrorist acts give rise to a state of war. Yet, the demarcating line is by no
means clear, much less transparent. It is often a difference in degree. The
distinction gets thinner if a comparison is made of terrorist acts with the
acts  aimed  at overawing   the Government   by means  of criminal  force.
Conspiracy to commit the latter offence is covered by Section 121­A."
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550.This answers Mr. Ramachandran's submissions to the effect that if an
offence comes within the definition of "terrorist act" under Section 15 of
the Unlawful Activities (Prevention) Act, it would automatically fall out of
Section 121 of the Penal Code, as also his rather extreme submission that
the incorporation of Chapter IV of the Unlawful Activities (Prevention) Act,
1967, should be viewed as deemed repeal of Section 121 of the Penal Code.
As explained in Navjot Sandhu, a "terrorist act" and an act of "waging war
against the Government of India" may have some overlapping features, but
a terrorist   act  may  not   always  be  an act  of  waging  war   against  the
Government of India, and vice versa . The provisions of Chapter IV of the
Unlawful Activities (Prevention) Act and those of Chapter VI of the Penal
Code, including Section 121, basically cover different areas.”
41 CONSPIRACY   TO   COMMIT   OFFENCES   PUNISHABLE   UNDER
SECTION 121 (SECTION 121A OF THE IPC): 
“Whoever   within   or   without   India   conspires   to   any   of   the   offence
punishable by Section 121, or conspires to overawe, by means of criminal
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 or omission shall take place in pursuance
thereof.”
●     INGREDIENTS OF THE SECTION:
42 Section 121­A deals with two kinds of conspiracies:
(i) Conspiring within or outside India to Commit any of the offences
punishable by Section 121 I.P.C.; 
(ii) Conspiring to overawe the Government by means of Criminal force
or the show of criminal force. 
Hence the essential ingredients of the offence under this section would
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be: 
(i) waging war against the Govt. of India; or
(ii) attempting to wage war against the Govt. of India; or
(iii) abetting the waging war against the Govt. of India.
(iv) Conspire to overawe by means of criminal force or the show of
criminal force. 
43 A conspiracy is a combination of two or more persons to do an
unlawful act, or to do a lawful act by unlawful means. This section
draws   a   distinction   between   the   Government   of   India   and   State
Government. Any conspiracy to change the form of the Government of
India   or   any   State   Government,   even   though   it   may   amount   to   an
offence under another section of the Code, would not be an offence
under this section, unless it is a conspiracy to overawe such Government
by means of criminal force or show of criminal force, as was illustrated
in the matter of Jhabwala v Emperor, (1933) 55 ILR (All) 1040. 
The   word   ‘overawe’   clearly   imports   more   than   the   creation   of
apprehension or alarm or even perhaps fears. The phrase “conspiracy to
overawe” has been used in this provision of the IPC. Overawe in lay
man’s   terms   means   to   subdue,   frighten   or   intimidate.   The   words
‘conspires to overawe by means of criminal force or the show criminal
force, the Government of India, or any State Government’ in this section
clearly embrace not merely a conspiracy to raise a general insurrection,
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but also a conspiracy to overawe the Government of India or any State
Government   by   the   organization   of   a   serious   riot   or   a   large   and
tumultuous unlawful assembly as was seen in the case of Ramanand v.
Emperor, (1950) 30 ILR (Pat) 152. 
44 It appears to connote the creation of a situation in which the
members   of   the   Central   or   the   State   Government   feel   themselves
compelled to choose between yielding to force or exposing themselves
or members of the public to a very serious danger. It is not necessary
that the danger should be a danger of assassination or of bodily injury to
themselves. The danger might well be a danger to public property or to
the safety of members of the general public (Ramanand vs. Emperor,
(1950) 30 ILR (Pat) 152). 
45 The   explanation   to   Section   121­A   states   that   to   constitute   a
conspiracy under this Section, it is not necessary that any act or illegal
omission shall take place in pursuance thereof. The words in the section
clearly embrace not merely a conspiracy to raise a general insurrection,
but also a conspiracy to overawe the Government of India or any State
Government   by   the   organization   of   a   serious   riot   or   a   large   and
tumultuous unlawful assembly. 
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46 At this stage, I may also look into the decision of the Patna High
Court in the case of Jubba Mallah (supra) relied upon by Mr. Amin, the
learned Public Prosecutor appearing for the State. A Division Bench,
speaking through Shearer, J., observed as under:
“4... I think the rule of law may be laid down in a few words in this
manner:  to  constitute   high  treason   by  levying   war,   there   must  be  an
insurrection, there must be force accompanying that insurrection; and it
must be for the accomplishment of an object of a general nature. But if all
these circumstances are found to concur in any individual case that is
brought under investigation, that is quite sufficient to constitute a levying
of war. 
5. Earlier, in his summing up, Tindal C.J. had quoted certain passages
which occur in Sir Michael Foster’s Discourse on High Treason, and, on
one of thee passages, Mr. Sinha has laid considerable stress. The passage
in question runs thus:
Insurrection  in order to throw down all inclosures,  to alter the
established   law   or   change   religion,   to   enhance   the   price   of   all
labour, or to open all prisons­all risings in order to effect these
innovations of a public and general concern by an armed force are,
in construction of law, high treason within the clause of levying
war; for though they are not levelled at the person of the King, they
are   against   his   royal   Majesty,   and   besides,   they   have   a   direct
tendency  to dissolve all the bonds of society,  and to destroy all
property and all government too, by numbers and an armed force.
6. It is quite clear that, in making these observations, Sir Michael
Foster had in mind certain of the early trials treason, and, in particular,
the case of Burton, which occurred in 1597. The report of that case shows
that   certain   persons   were   these   charged   “with   conspiring   to   assemble
themselves and moving others to rise and pull down inclosures.” In the
previous reign an Act had been passed making it a felony for “twelve or
more persons to assemble with intent to pull down inclosures, pales and
the like with force,” and it was, in consequence, contended that, what
Burton and the other prisoners had conspired to do, might amount to a
felony, but could not amount to treason, as if it was treason, there would
have been no need for Parliament to have enacted such a statute. The
contention was negatived on the ground that the prisoners had, conspired
to pull down inclosures in general, and not certain inclosures in particular.
This decision was followed in two subsequent trials for treason, namely in
R. v. Peter Messenger (1668) 6 Tr. 879, in which certain persons were
indicted for high treason in levying war against the King “on the pretence
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of pulling down bawdy­houses,” and the case R. v. Dammaree (1710) Tr.
521, in which certain persons were indicted for high treason in levying
war against the Queen “under the pretence of pulling down the meeting
houses   of   the   Dissenters.”   The   ratio   decidendi   in   all   these   cases   will
sufficiently appear from this passage in the summing up of Sir Thomas
Parker C.J. in the latest of them, namely the case in R. v. Dammaree
(1710) 15 Tr. 521. That learned Judge said this: 
In the case of inclosures, where the people of a town have had part of their
common inclosed, though they have come with a great force to throw
down that inclosure, yet that is not levying of war, but if any will go to
pull down all inclosures and make it a general thing to reform that which
they think a nuisance, that necessarily makes a war between all the lords
and the tenants. A bawdy­house is a nuisance and may be punished as
such, and if it be a particular prejudice to any one if he himself should go
in an unlawful manner to redress that prejudice, it may be only a riot, but
if he will set up to pull them all down in general, he has taken the Queen’s
right out of her hand, he has made it a general thing, and when they are
once up, they may call every man’s house a bawdy­house, and this is a
general thing, it affects the whole nation.” What was really decided in
these cases was that in certain circumstances attacks by riotous mobs on
private property might amount to levying war against the King. There is
nothing in the decisions which in any way goes to support the contention
which was put forward by the learned advocate for the appellant that,
inasmuch as this mob contented itself with taking possession of one police
station and did not manifest any intention of going on to take possession
of   any   other   police   station,   the   offence   which   was   committed,   was
necessarily  the  offence   of  rioting,  and  could  not  possibly  be  the  more
serious offence of waging war against the King. Mr. Sinha, in the course of
his argument, referred to an observation made by Oldfield and Krishnan
JJ., in In re Umayyathantagath Puthan Veetil Kunhi Kadir A.I.R. 1922
Mad. 126, that it is sometimes a matter of difficulty to say whether there
has been a levying or waging of war against the King, or merely a riot of a
serious kind. This very point was, I find, dealt with at considerable length
in the trial of Andrew Hardie, which took place in Scotland in (1820) 1
Tr. (N.S.) 610 at page 623. In his summing up in that case, the Lord
President is there reported as having said:
Gentlemen, it may be useful to say a few words on the distinction between
levying war against the King and committing a riot. The distinction seems
to consist in this, although they may often run very nearly into each other.
Where the rising or tumult is merely to accomplish some private purpose,
interesting only to those engaged in it, and not to resisting or calling in
question  the King’s authority  or prerogative  then the tumult,  however
numerous or outrageous the mob may be, is held only to be a riot. For
example, suppose a mob to rise, and even by force of arms to break into a
particular prison and rescue certain persons therein confined, or to oblige
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the Magistrates to set them at liberty or to lower the price of provisions in
a certain market, or to teardown certain inclosures, which they conceive to
encroach   on   the   town’s   commons.   All   such   acts,   though   severely
punishable, and though they may be resisted by force, do not amount to
treason. Nothing is pointed against either the person or authority of the
King. For this reason, after the most mature consideration, the outrageous
proceedings of the mob of Edinburgh, in the affair of Porteous, were held
not to amount to treason, and the few persons who were tried, were tried
only as for riot, because, although there was in that case an interference
with the royal prerogative of mercy, yet as it was only directed against the
exercise of it in that individual case, and did not, in any degree, go to
impeach or resist His Majesty’s general exercise of it in other cases, it was
determined to proceed, against those accused only as for riot, and not as
for treason. 
But, gentlemen, wherever the rising or insurrection has for its object a
general purpose, not confined to the peculiar views and interests of the
persons concerned in it, but common to the whole community, and striking
directly the King’s authority or that of Parliament, then it assumes the
character of treason. For example, if mobs were to rise in different parts of
the country to throw open all inclosures and to resist the execution of the
law regarding inclosures wheresoever attempted, to pull down all prisons
or Courts of justice, to resist all revenue officers in the collecting of all or
any of the taxes, in short, all risings to accomplish a general purpose, or to
hinder   a   general   measure,   which   by   law   can   only   be   authorised   or
prohibited by authority of the King or Parliament, amount to levying of
war against the King and have always been tried and punished as treason.
It is, therefore, not the numbers concerned, nor the force employed by the
people rising in arms, but the object which they have in vie that determines
the   character   of   the   crime,   and   will   make   it   either   riot   or   treason,
according as that object is of a public and general, or private and local
nature. 
7. As the career and tragic end of Captain John Porteous are probably
not known to many outside the country to which he belonged and as some
knowledge of them may serve further to elucidate the observations of the
Lord President, I may say that he was the Captain of the City Guard at
Edinburgh and, as such was instructed to attend at a public execution
which took place in that town in 1786, and prevent any disturbance. After
the prisoner had been hanged, Captain Porteous, apprehending an attempt
to cut down and remove the dead body, opened fire on the crowd, killing a
number   of   persons   and   wounding   many   others.   This   he   did   without
obtaining any order from any of the Magistrates who were present, and,
indeed, apparently without consulting them. He was subsequently tried for
murder and was convicted and sentenced to death. A memorial on his
behalf was submitted to King George II, and, as King Gorge II was then out
of the kingdom,  having gone to Hanover,  Queen Caroline respited the
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execution for a period of six weeks. This enraged a great many people in
and around Edinburgh and a conspiracy was formed to raid the prison in
which Captain Porteous was confined and to take him out and hang him.
The prison was, in fact, stormed, and Captain Porteous was taken from it
to the Grassmarket where he had opened fire on the crowd, and was there
hanged. Mr. Sinha has criticised an observation of the learned Special
Judge that it is a matter of common knowledge that the object of the
recent disturbances and risings throughout the country was to paralyse the
administration and to compel the Government to submit to the demands of
the Indian National Congress. 
8. The learned Special Judge, it is complained, has assumed that there
was an insurrection and an insurrection for the accomplishment of an
object of a general nature.  There is a certain amount  of force in this
criticism, although, in fairness to the learned Special Judge, it must be
observed that no such argument, as has been addressed to us with so much
ability, was apparently addressed to him. Mr. Sinha, no doubt, went too
far when he said that an attack, made on one police station, could not
amount to waging war against the King, but he was correct in saying that,
prima facie, the persons, who made such an attack, were guilty or rioting,
and that, if the Crown charged them instead with waging war against the
King,   it   was   incumbent   on   the   Crown   to   show   that   there   was   an
insurrection   and   not   a   riot,   and   that   the   insurrection   was   for   the
accomplishment of an object of a general nature. Mr. Sinha was, also,
correct in saying that there was no obligation on Jubba Mallah and his
associates to show that their object was, and that it was for the Crown to
establish that by evidence. As pointed by the Lord President in (1820) 1
Tr. (N.S.) 610 it is the latter point which is the crux of the matter. Does
the evidence on the record show conclusively what the object of this mob or
of its leader was?
9. There is nothing in the evidence to suggest, and no reason whatever
to   suppose,   that   Mr.   Waller   or   the   assistant   Sub­Inspector   and   the
constables under him had done anything to arouse animosity against them
in Minapur and its neighbourhood. On the contrary, it is to be observed
that, although Mr. Waller fired into the mob with a gun and also with a
revolver, the mob allowed him to get away from the police station. It was
not until they had destroyed the records and furniture of the police station
that it occurred to any of them to seek out the Sub­Inspector and the
constables, who had escaped, and maltreat them. Once of the chaukidars
said that, when the mob appeared at the police station, its leaders called
on them to remove and throw away their uniforms. A dafadar, Rajeshwar
Singh, said that one Sahdeo Ojha, who had been in the mob, subsequently
went   round   some   villages   in   the   locality,   warning   the   dafadars   and
chaukidars not to go back to the police station or to communicate with or
in any way assist the regular police. According to this dafadar, Sahdeo
Ojha told him that he and other congress men had set up a thana of their
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own and would pay any chaukidars or dafadars who joined them. Another
dafadar,   Musafir   Singh,   said   that   this   Sahdeo   Ojha   and   some   other
congress men had actually set up a thana in a school building at Lautan,
which remained there until a military force arrived in the locality. Among
the slogans uttered by the mob were, it was said, e “Ungrez raj nash ho”
and “Congress raj Kaem ho.” That the congress party is a political party
with a very large number of adherents and that, at or about the time when
this police station at Minapur  was attacked,  other  police  stations  and
public buildings over a wide area elsewhere were also attacked by persons
who professed to be members of the congress party and to be acting on its
behalf, are facts so notorious that judicial notice may, I think, properly be
taken of them. 
10. A   Full   Bench   of   the   Allahabad   High   Court   has   already   taken
judicial   notice   of   this   vide   Saling   Ram   v.   Emperor
MANU/UP/0018/1942 : AIR 1943 All 26 and the Courts in England have
taken judicial notice of similar facts as, for instance, that particular areas
have  been attacked by hostile aircraft.  “Insurrection”  is defined  in the
Oxford  Dictionary  as the “action  of rising  in arms  or open resistance
against established authority or Governmental restraint.” 
11. As was pointed in (1820) 1 Tr. (N.S.) 610 and has been pointed
out in many other cases before and since, the numbers concerned and
manner in which they were equipped or armed are not material, and it is,
therefore, unnecessary for me to discuss the evidence that this mob or a
portion of it was drawn up in military or semi­military formation. Even if
the evidence is untrue­and it may perhaps be untrue, that is a matter of no
importance whatever. The size of this mob was such that the men in it
must have come from many different villages and the object of its leaders,
as   shown   by   the   evidence,   was   to   substitute   for   the   authority   of   His
Majesty the King­Emperor in the area round Minapur the authority of the
congress party or of those persons who were or professed themselves to be
members of the congress party and acting on its behalf in this area. Quite
clearly, there was an insurrection with an object of a general nature, and
any person, who voluntarily joined in that insurrection, as Jubba Mallah
undoubtedly did, must be deemed, in law, to have waged war against the
King.” 
47 Before I proceed to apply the general principles explained by the
Supreme   Court   in   the   case   of  Jamiludin  Nasir  (Supra),  I   deem   it
necessary to recapitulate the allegations. To put it briefly, those are as
under:
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(1) The   demand   or   claim   to   include   the   Patidar   /   Patel
Community in the list of the OBCs is thoroughly misconceived and
not   tenable   in   law.   Although   the   members   of   the   Patidar
Community are aware of the position of law, yet they hatched a
criminal conspiracy for the purpose of bringing into hatredness
and contempt, and to excite disaffection towards the Government
of Gujarat. The persons concerned deliberately and knowingly, by
words spoken and written, attempted to undermine the public
order and lawful authority of the State.
(2) The accused persons conspired and acted in pursuance to
the said conspiracy to instigate a deliberate and organized attack
upon the Government forces. 
(3) The accused persons entered into a scuffle with the police.
(4) The accused persons torched the vehicles and office of one
BJP MLA, namely, Shri Rishikesh Patel. 
(5) The accused persons burnt effigies. The members of the
Patidar Community burnt effigies of the community leaders. 
(6) More than 300 odd rallies, agitation or demonstration were
conducted by the groups across the State. 
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(7) Railway lines across the State were damaged. 
(8) An unruly mob seized fire arms from the police party and
opened fire on them. 
(9) The police vehicles and police stations were torched. 
(10) The unruly mob damaged AMTS, BRTS and GSRTC buses,
including the Fire Brigade vehicles. 
48 Keeping the above in mind, there is no element of doubt that more
than a prima facie case can be said to have been made out of rioting at a
large   scale.   However,   the   question   before   me   is   whether   the   same
constitutes   an   offence   of   waging   war   against   the   Government.   The
offence   of   waging   war   against   the   Government   and   committing   a
mamoth riot may often run into each other, but at the same time, there
is a fine distinction between them. Where the rising or tumult is merely
to accomplish some private purpose, interesting only to those engaged in
it, and not resisting or calling in question the Government authority or
prerogative, then the tumult, however, numerous or outrageous the mob
may be, is only a riot.  But wherever the rising or insurrection has for its
object a general purpose, not confined to the peculiar interests of the
persons concerned in it, but common to the  whole community, and
striking   directly     the   Government   authority,   then   it   assumes   the
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character of treason. 
49 According   to   the   English   statute   and   the   explanation   by   the
English Judges in the vintage decisions, there are two kinds of levying
war : one against the person of the King : to imprison, to dethrone, or to
kill him; or to make him change measures, or remove counsellors : the
other, which is said to be levied against the majesty of the King, or, in
other words, against him by his regal capacity; as when a multitude rise
and assembly to attain by force and violence any object of a general
public nature; that is levying war against the majesty of the King; and
most reasonably so held, because tends to dissolve  all the  bonds of
society, to destroy property, and to overturn the Government; and by
force or arms, to restrain the King from reigning, according to law. 
50 If I apply the principles of law explained in the English decisions,
then probably, a prima facie case of waging war against the Government
to achieve a particular purpose, i.e. reservation, could be said to have
been made out. However, as explained by the Supreme Court in the case
of Jamiludin Nasir (Supra), the expression “waging war” should not be
stretched too far to hold that all acts of disrupting public order and
peace   irrespective   of   their   magnitude   and   repercussions   could   be
reckoned as acts of “waging war” against the Government. An approach
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of the Court should be balanced and realistic. What was viewed in the
long long past should not be applied mechanically. 
51 The intention and purpose behind the agitation is to include the
Patidar / Patel Community in the list of the OBCs. As observed by the
Supreme Court in Navjot Sandhu (Supra) that the moment it is found
that the object sought to be attained is of a general public nature or has
a political colour, the offensive violent act targeted against the armed
force and public officials should not be branded as acts of waging war.
In the long long past,  an organized movement attended with violence
and attacks against the public officials and armed forces even while
agitating   for   the   repeal   of   an   unpopular   law   or   for   preventing   the
burdensome taxes were viewed as acts of treason in the form of levying
war. 
52 In my view, an organized movement attended with violence while
agitating for the inclusion of the Patidar / Patel Community in the list of
the OBCs should not be viewed as an act of treason in the form of
levying war. 
53 There is no direct challenge to the authority or the sovereignty  of
the Government. Tomorrow, supposing, if the Government deems fit to
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include the Patidar / Patel Community in the list of OBC, then probably,
the   agitation   would   come   to   an   end.   This   is   where   lies   the   fine
distinction between rioting for a particular purpose and high treason. 
54 I may in my own way draw the difference between a riot, and an
insurrection.
(a)  A riot is a disturbance. An insurrection is a revolt or rebellion
against the government.
(b)  A riot is a noisy, violent public disorder caused by a group or
crowd of persons, as by a crowd protesting against another group, a
government policy, etc., in the streets. 
(c)  An insurrection is an act or instance of rising in revolt, rebellion,
or resistance against the civil authority or an established government. 
(d) An insurrection is more organized resistance, while a riot is chaos.
(e) A riot is a chaotic, spur of the moment occasion, where people
who   are   angry   over   whatever   reason   suddenly   turn   violent.   An
insurrection is a revolt against an institution or a government, with a
purpose, and usually better planning. 
(f) Riots are short in duration, and usually localized. 
(g) Insurrections are long term civil disobedience, and are generally
spread out among the populace.
55 A person taking part in an organized attack on the constituted
authority, and that attack having for its object the subversion of the
Government and the establishment of nature in its place would be guilty
of the offence of waging war. To put it in other words, when an object of
the   activities   is   to   overthrow   the   Government   and   efforts   in   that
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direction to complete the activity may constitute an offence of waging
war. Such is not the position so far as the case in hand is concerned. 
56 I am  of  the  view that even if  I accept the  entire  case  of  the
prosecution as it is, the basic ingredients to constitute the offence of
“waging war” punishable under section 121 of the IPC are lacking. It
would be to much to say that the violent acts resulting in destruction of
public property, etc, would fall within the expression “waging war”. 
57 The State of Gujarat in the past had witnessed worst of the riots.
In the year 1974, there was the Nav Nirman agitation across the State,
probably, much more grave and serious in intensity. Many people had
lost their lives. To the best of my knowledge, the Gujarat Legislative
Assembly was dissolved and the President rule was imposed for a period
of almost six months. Thereafter, fresh Election was declared. Even in
such circumstances, the prosecutions if any were not for “waging war”.
In the year 1985, the State of Gujarat again witnessed worst of the riots,
popularly known as, the “Anamat Andolan”. An extensive damage was
caused to the public property, etc. Many people lost their lives. 
58 In the year 1992, again, the State witnessed very bad communal
riots due to demolition of the ‘Babri Masjid’. 
59 Even at that point of time, the prosecutions were not for waging
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war punishable under Section 121 of the IPC. 
60 Judged   by   the   standard   laid   down   by   the   Supreme   Court   in
Navjot Sandhu (supra) and  Jamiludin Nasir (supra), it is difficult to
hold   that   there   has   been   a   conspiracy   to   wage   war   against   the
Government of Gujarat, or that there are the necessary elements in this
case, to constitute the offence of waging war against the Government of
Gujarat. However, a prima facie, case of conspiracy to overawe by means
of criminal force, or the show of criminal force the Government is made
out. I am saying so because Section 121A of the IPC deals with two kinds
of conspiracies:­ 
One  conspiring  within   or  without   India  to commit  any  of  the
offences punishable by Section 121 IPC and the other conspiring to
overawe by means of criminal force, or the show of criminal force the
Government. 
61 I am not impressed by the vociferous submission of Mr. Amin that
the   persons   who   attacked   police   stations   are   guilty   of   waging   war
against the Government. Prima facie, the persons who attacked the police
stations, damaged public property are guilty of mammoth rioting, and if
the Government authority charges them instead of waging war against
the Government, it is incumbent upon the Government to show that
there is insurrection and not a riot and the  insurrection  is that the
accomplishment of an object of a general nature. The prosecution, in my
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opinion, has not been able to make out a prima facie case of insurrection.
When I am talking about insurrection, I mean, a violent uprising against
an authority or Government. This is what is lacking in the present case,
though more than a prima facie case could be said to have been made
out   of   a   mammoth   rioting.   The   riot   is   an   unlawful   assembly   in   a
particular State of activity, which activity is accomplished by the use of
force or violence. 
62 If I am asked by any one to name two things, which has destroyed
this country or rather, has not allowed the country, to progress in the
right direction, then the same is, (i) Reservation and (ii) Corruption. It is
very shameful for any citizen of this country to ask for reservation after
65 years of independence. When our Constitution was framed, it was
understood that the reservation would remain for a period of 10 years,
but unfortunately, it has continued even after 65 years of independence.
The biggest threats, today, for the country is corruption. The countrymen
should   rise   and   fight   against   corruption   at   all   levels,   rather   than
shedding   blood   and   indulging   in   violence   for   the   reservation.   The
reservation has only played the role of an amoeboid monster sowing
seeds of discord amongst the people. The importance of merit, in any
society, cannot be understated. The merit stands for a positive goal and
when looked at instrumentally, stands for “rewarding those actions that
are   considered   good”.   Then,   this   instrumental   nature   of   merit   that

should be given importance – emphasizing on and rewarding merit is a
means towards achieving what is regarded as good in the society. The
parody of the situation is that India must be the only country wherein
some of the citizens crave to be called backward. 
63 In view of the above, all these applications are partly allowed. The
First Information Report is ordered to be quashed so far as the offences
punishable   Sections   121,   153A   and   153B   are   concerned.   The
investigation may proceed further in accordance with law so far as the
offence punishable under Sections 124A and 121A is concerned. 
(J.B.PARDIWALA, J.)
FURTHER ORDER
After the judgment is pronounced, Mr. Mangukiya, the learned
counsel appearing for the petitioner of the Special Criminal Application
No.6339 of 2015 made a request that the interim order passed by this
Court earlier may be continued for a period of two weeks. 
In the facts and circumstances of the case, the interim relief earlier
granted   in   the   Special   Criminal   Application   No.6339   of   2015   shall
continue for a period of 15 days. 
(J.B.PARDIWALA, J.)

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