Wangdi, J.
1. This Appeal is filed under Sub-Section (4) of Section 378 of the Code of Criminal Procedure, 1973 (in short the œCr.P.C.) assailing the impugned judgment dated 20-06-2013 of the Sessions Judge, Special Division “ I, Sikkim at Gangtok (hereinafter referred to as the First Appellate Court) in Criminal Appeal No.10 of 2011 which had set aside the conviction and sentence passed by the Judicial Magistrate, East Sikkim at Gangtok (hereinafter referred to as the Trial Court) against the Respondent No.1 in Private Complaint Case No.19 of 2008 for offence under Section 153B of the Indian Penal Code, 1860 (in short the œIPC?) on a complaint lodged by the Appellant.
2. In the original complaint, it had been alleged that the Respondent No.1 who is the Editor and Publisher Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another of local dailies, namely, Hamro Prajashakti in Nepali and Himalayan Mirror in English had indulged in publishing various offending news articles which tended to promote feelings of enmity or hatred or ill-will between Sikkimese and non-Sikkimese people. There were two specific articles referred to in the Complaint, one of which was a news article published in its issue of 15-05-2007 and the other on 24-04-2008. We are at present concerned only with one published on 24-04-2008 as the other one was not found to be incriminating by the Trial Court, a finding which remained unchallenged.
3. In the Nepali newspaper, Hamro Prajashakti in its issue dated 24-04-2008, an article titled œAaj Dharamshalama Tala Lagayo Bholee Rangpoko Gatema Tala Lagauncha Dhikkar Cha Aaphno Matoma Aurulai Dharamshala Banauna Dineharulai? was published which as per the Appellant was likely to cause disharmony and feelings of enmity, hatred or ill-will between two communities in Sikkim. It is further alleged that the offending article is prejudicial to public order and public Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another security and is a direct attack on a Government established by law.
4. The Trial Court upon consideration of the Complaint, evidence and the records came to a finding that on a bare perusal, the article had the potential to cause feeling of enmity and hatred amongst the two communities, i.e., Sikkimese and non-Sikkimese. The words used in the article was provocative in nature and the fact that the newspaper had wide circulation in the State of Sikkim, gave rise to every likelihood of there being breach of peace and tranquility.
5. In the Appeal filed against this judgment, the First Appellate Court held that on a careful perusal of the article as a whole, no offence under Section 153B(1)(c) IPC could be said to have been made out against the Respondent No.1 as held by the Trial Court thereby acquitting him of the charges. It is against this finding that the present Appeal has been filed.
6. Before this Court, Mr. Eklovya Rai Nagpal, Learned Advocate, appearing on behalf of the Appellant, Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another submitted that the First Appellate Court had fallen in error in setting aside the conviction and sentence against the Respondent No.1 passed by the Trial Court by failing to appreciate the facts of the case and the laws governing the offence under Section 153B IPC. That the finding that there was nothing to suggest that the concerned passages when read in the context of the whole article was perverse and contrary to the finding of the Trial Court in its judgment dated 17-12-2010.
7. By reading out the impugned article, Exhibit 7(a), Mr. Nagpal urged that the words used in and the substance of the article was such that it was likely to cause disharmony and feeling of enmity, hatred or ill-will between the aforesaid two communities. It was further submitted that the First Appellate erred in holding that œThe author of the article has categorically put a caveat to the effect that, the tone in the article is not a communal tone intended to loathe any particular community? and that was œa circumstance going in favour of the author and the publisher?. As per the Learned Counsel, the fact that the author or the publisher of the offending article gave such a caveat in fact would lend support to a reasonable presumption that he was Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another conscious that the language used in the concerned article was likely to instigate and promote disharmony and feeling of enmity, hatred or ill-will between two communities in Sikkim and that, on this ground alone the Respondent No.1 was liable to be convicted.
8. Mr. Udai P. Sharma, Learned Advocate, appearing on behalf of the Respondent No.1, on the other hand, would submit that there was no error in the impugned judgment of the First Appellate Court. Reiterating his submissions placed before the First Appellate Court, Mr. Sharma put forth the following arguments:-
(i) The Appellant had failed to discharge its burden of proof of bringing any proof of the obligation of the Respondent No.1 which is the foundational requirement of the offence under Section 153B(1)(c) IPC. The Complaint is a motivated one and intended to malign the Respondent No.1.
(ii) That there was no intention on the part of the Respondent No.1 to cause disharmony and Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another feeling of enmity, hatred or ill-will between communities in publishing the offending article. As per him, it was an article having relevance to the social issues of the time authored by one Mr. Duknath Napal, Editor of Nepali newspaper, namely, Sangrila Times. The letter written by the Deputy Director, Department of Information and Public Relations, Government of Sikkim to the Editor of the newspaper, Hamro Prajashakti objecting to the said article was also published for dissemination amongst the general public. This, as per Mr. Sharma, established the bona fides of the Respondent No.1 in publishing the offending article free from any malice. While making this submission, attention of this Court was also drawn to the answers given by the Respondent No.1 to the circumstances 06 and 07 in his examination under Section 313 Cr.P.C.
(iii) That enquiry was conducted against the Respondent No.1 under the direction of the District Magistrate without registering a case or maintaining any diary or recording the Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another statement of any witnesses and without reading the original article but only on the basis of its translated version as would be evident from the deposition of C.W.5, Bishal Rai.
(iv) That while the charge framed against the Respondent No.1 relates to provocation against Members of the Bihari community, the evidence led by the Respondent No.1 in fact seeks to project the grievance of the members of the Lepcha community as would be evident from the cross-examination of the Appellant as C.W.1.
(v) That the Trial Court and the First Appellate Court had differed in their findings, would indicate that two views are possible on the facts of the case and that when two views are possible, the view in favour of the accused/Respondent No.1 ought to be accepted.
9. I have carefully considered the warring contentions on behalf of the parties, the impugned judgment, the judgment of the Trial Court and the entire evidence on records. The sole question that arises for Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another determination in the present Appeal is as to whether the offending article falls within the mischief of Section 153B(1)(c) IPC. The two Courts below have apparently have held different views.
10. Before going further, it is necessary for this Court to decide at the threshold as to whether it can be permissible for this Court to unsettle the decision of the First Appellate Court acquitting the Respondent No.1 by setting aside the conviction and sentence passed by the Trial Court.
11. It is trite that in a proceeding as the present one there can be no interference with an order of acquittal unless the approach adopted by the First Appellate Court in considering the evidence of the case is vitiated by some manifest illegality and is perverse or illegal or erroneous or contrary to the records. It is also trite that the High Court has the power to review the entire evidence upon which an order of acquittal is founded and then to come to its own conclusion, the only caveat being that the reasons for interference under Section 378 Cr.P.C. should be compelling and substantial. Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another
12. In Sanwat Singh and Others vs. State of Rajasthan : AIR 1961 SC 715 reiterating the decision of the Privy Council in Sheo Swarup vs. Emperor : AIR 1934 PC 227 (2) and, after analysing the principles laid down in various other decisions of the Honble Supreme Court, it was held as follows:-
œ(9) The foregoing discussion yields the following results : (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case, 61 Ind app 398 : (AIR 1934 PC 227 (2) ) afford a correct guide for the appellate courts approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) œsubstantial and compelling reasons?, (ii) œgood and sufficiently cogent reasons?, and (iii) œstrong reasons? are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.?
13. On the anvil of the above decision, we may now consider the judgment of the First Appellate Court and find out as to whether there has been any departure from the principles alluded to above.
14. In order to appreciate the finding of the First Appellate Court in upsetting the order of conviction passed Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another by the Trial Court, it will be convenient for us to reproduce the entire offending article duly translated in English that was exhibited as Exhibit 11.
œToday they locked Dharmashala tomorrow they may lock Rangpo gate, shame on those who permitted them to build Dharmashala in their land
Duknath Nepal
East India Company had never come with the intention of playing politics when they came to India. They had first talked of business but the real intention was to spread the politics of colonialism. For an independent nation, and a free society to survive, the first condition confines to the œeconomy.? History is evident with the facts of nations despite their size but economically weak have been subjugated to becoming slaves in the hand of economically sound nations. Even today, countries like Pakistan and Afghanistan look sovereign, but indebted under colonial American loan and grants; have interference and influence of foreign hand in their policy decisions.
The magnitude of instability and civil wars in the African nations is also the reflection of this. If the crude oil deposits of the Arabian nations have been the real reason behind the American colonialism, the immense hydro potentials flowing out of the glacial resources has become the enemy of Sikkim. The musk deer fell victim to its own musk in its navel, while the magnificent pachyderm or elephant is becoming endangered owing to its valuable ivory tusk, rhinos are being poached and butchered to the brink of extinction because of its horn, so is Sikkim falling prey to the hydro electricity developer companies because of its glacier fed rivers. These very invaluable resources are becoming a game of gambling with money and political power and those Mir Zaffers are busy putting bet on these invaluable natural resources. Similar to how the Mir Zaffers in power could not recognize the East India Company which had come with a malafide intention with scale in their hands but also made slave for several generations. Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another
If a Company which could make a huge country like India (not the present day geographically small India but that India which spread from Burma in the East to Pakistan in the West), slave, then in Sikkim, a whole battalion of companies have entered. If a businessman just selling salt and oil can lock the Dharmashala and put in jail the people of Sikkim, then it cannot be ruled out that these companies may not lock the gate of Sikkim. In their times Mir Zaffers think that whatever steps they take is right, this is a reflection of their mental status. Gandhi was born in time to remedy the blunders of those Mir Zaffers, but we can little expect such to happen.
Whatever happened last week in Singtam to the religious troupe of Lepchas should be the eye opener for our people who have eyes. Specially the going off of lights when the Lepcha;s religious travelers who had crossed Rangpo and reached Sikkim and on their way to pass the night in Bihari Dharmashala which had been booked in advance. The going off of lights cannot be summed as mere coincident or an immediate occurrence. It was a pre planned conspiracy. This very moment of darkness was capitalized to surround those travelers by the goons. The goons have no association with party, neither do they belong to any religion or community. Their only faith or culture is hooliganism and they work for anyone who can pay. They can be holding flags of any party or they can even be in the guise of police.
One who works as a mercenary to meet up their living, they cannot differentiate between right and wrong nor can they distinguish any faith or community, so are they the goons. And if anyone claims that these goons are of this party or the other, then it is his gaffe or wrong concept. Till the other days these goons had been working for different party with different flags in their hand and today they are associated with different party as hired goons. These very goons, least bothered about the people of Sikkim or Darjeeling or that of faith, community and politics had planned a conspiracy to attack the religious troupe.
But despite the resistance of hired goons, they were able to reach the Dharmashala, booked in advance with the help of cultured people of Singtam only to find the door of Dharmashala Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another locked. The statement given by the managing group of Dharmashala to the only cable Television network (Nayuma) is an indication of something elusive. If any person has a blood and inherent relation with any community, faith, society and a state, then he will never compromise for a petty issue. His responsibility against his faith, community, society and state comes to test in the wake of emergent situation and his minor self interest like personal and familial is put to test. A civilized human can give his life for the sake of his mothers dignity, self respect of his sisters and for the pride of his country and defense of his faith. But why would an alien bother for anyone others faith, society or the State.
Those managing the Bihari Dharmashala have proved that they are and will remain alien for this land. It can be said that the Indian government was much rational and far sighted who did not lay aside constitutional provisions in the year 1975 and recently in the Central Income Tax issue for this community. It can be assumed that Indian government was more aware than that by the Sikkimese people of their intention. Indian government understood that this community never could become the citizen of erstwhile king and they were interested only in business.
This very incident have make us think seriously that they had come to Sikkim in the time of Chogyals for business purpose and even when the king had been issuing Sikkim subjects to his citizens and who had at that time refused to take the subjects have constructed a Dharmashala with a purpose of renting out to those coming for a refuge and even after payment of requisite fee by the Sikkimese people to shelter those guest, had to cut the lock and bear the brunt of going to the police custody. Those who had come here to trade salt and oil (this is not a communal tone intended to loathe any particular community that I am using like those others) have insulted the Sikkimese people to this extent while the ruling government have deposited Sikkim in their hands and given license to trade. This columnist want to warn that be it put on record today that those who had put off the lights and those who goons who had acted as a mercenary along with those people in uniform who have in the expense of tax payers taken oath serve free and fairly and without Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another prejudice but working as a party activists, must understand that in coming twenty years, they will put a huge lock at Rangpo gate just like they did at Singtam Dharmashala and yours future generations while trying to enter from there will be booked under trespass.
Today, if Athup Lepcha, a person from primitive tribe declared by the Government of Sikkim and elected by people to becoming a Minister, a person who had defeated former Chief Minister of Sikkim Kazi Lhendup Dorjee and entered the State Legislative Assembly, well established personality in the field of politics and social work Bharat Basnett and Chukila Topden were dared to be booked under trespass, then what will be the fate of the coming generation of those mercenaries! It is better that this facts be given a serious thought. If these people who had been trading salt and oil can dare to such extent then almost all the main sources have been captured by giant traders and where even the locals are restricted to entry, those mercenaries cannot think ever to dare.
And a day will come when the whole of Sikkim will become Dharmashala of those companies. It is shame to the people of Sikkim who have been living here from time eternal but could not even build one Dharmashala here and was compelled to take refuge in others Dharmashala, and shame to those people of Sikkim who could not make best possible use of its own natural resources that they brought the companies from outside and is determined to make their generations and generations refugees in their own land. And shame to the system, which made rules of trespass, for those trying to step in their land of birth.?
15. Now the principle governing the approach to offence under Sections 153A and 153B is that the article which is said to be offending has to be read as a whole and not by picking out portions of it. In Vishambhar Dayal Tripathi vs. Emperor : AIR 1941 Oudh 33, it was Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another held that œIn estimating the effect of a speech the Court should look at any speech as a whole and not pay undue regard to any particular sentence or phrase?. Though this case is vintage in its age and was rendered while considering a case under Section 153A IPC, it still holds the field and applicable in cases under Section 153B IPC also as we find the proposition reiterated in later decisions of different High Courts and the Supreme Court in cases under both the provisions. One of such decision, namely, Joseph Bain Dsouza and Another vs. State of Maharashtra and Others : 1995 Cri.L.J. 1316 (Maharashtra), is found to have been referred to by the Learned Counsel for the Appellant and taken note of in the impugned judgment.
16. For better appreciation and convenience, it would be useful also to reproduce the relevant portions of the judgments of the two Courts below which are as under:-
Judgment of the Trial Court
œ16. The allegations against the accused is that by publishing the news article œAaj Dharamsalama Tala Lagayo Bholee Rangpoko Gatema Tala Lagauncha Dhikkar Cha Aaphno Matoma Aurulai Dharamsala Banauna Dineharulai? he published an imputation by which he attempted to cause disharmony and feeling of hatred between the members of the community originally Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another residing in Sikkim and the Bihari Community who are mostly the business community.
17. From the bare reading of the news article œAaj Dharamsalama Tala Lagayo Bholee Rangpoko Gatema Tala Lagauncha Dhikkar Cha Aaphno Matoma Aurulai Dharamsala Banauna Dineharulai? it can be inferred from the contents of the aforesaid news article that it has the potential to cause feeling of enmity and hatred amongst the two above mentioned communities. The wordings and the intent as contained in the news article is provocative in nature and as it is a Nepali newspaper widely circulated in the State of Sikkim there is every likelihood of breach of peace and tranquility. The imputation as made in the news article in question that the persons who have come to Sikkim to do business (the author herein is referring to the business community in Sikkim and specially the Bihari Community) have dare to lock the Dharamsala which is constructed within the State of Sikkim and that as the big companies and the big businessman who are mostly from outside the State of Sikkim have captured most of the business in Sikkim, the day will come when this business community will put a lock in the Rangpo Gate and the original resident of Sikkim whoever intents to visit Sikkim, if enters inside Sikkim, will be charged for trespassing. This imputation as contained in the news article in question will cause the feeling of disharmony or feeling of hatred or enmity between the members of the community originally residing in Sikkim and the members of the business community specially the Bihari Community who are doing business in Sikkim and who are Indian citizens.?
Judgment of the First Appellate Court
œ25. The impugned judgment of the Ld. Trial Court shows that the Ld. Magistrate has only considered some passages of the concerned article. There is nothing to suggest that the concerned passages were read in the context of the whole article (Exbt.7(a)). The impugned Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another judgment is silent about the article having been read as a whole.
26. A careful perusal of the concerned news article would show that the main issues highlighted therein are threefold. Firstly, it condemns the irresponsible conduct of the Management of the Bihari Dharamsala, at Singtam which did not allow the concerned pilgrims to stay there despite they having booked it in advance. Secondly, it accuses some goons/ antisocial elements of having illegally disconnected the power connection of the concerned area when the pilgrims happened to reach there. Thirdly, it condemns the episode whereby some of the pilgrims were booked by the police for having broken into the concerned Dharamsala on finding it locked. Apart from the above, the article cautions the local Sikkim Subject holders saying that those who have come to Sikkim for trading salt and oil have insulted the local Sikkimese and that in the coming twenty years the same persons, the goons mentioned above and the people in uniform who are acting as the activist of a local party would put a huge lock on the Rangpo-Border gate as was done in the Bihari Dharamsala. It may also be mentioned here that the words/remarks œThose who came here to trade salt and oil? seem to have been used/made with reference to the Managing body of the Bihari Dharamsala. This is the only plausible interpretation when the whole of the article is read.
27. There is another important point which requires mention here. The author of the article has categorically put a caveat to the effect that, the tone in the article is not a communal tone intended to loathe any particular community. This is a circumstance going in favour of the author and the publisher. Unfortunately, the Ld. Trial court has not considered this point.
28. It may also be pointed out that though at some places the article seems to have been written due to emotional outburst high flown and caustic language has been used, nonetheless, the same per se do not fall within the mischief of Section 153-B of the IPC, 1860 when the article is read in its entirety. Even in Joseph Bain DSouzas case supra the Honble Bombay High Court while Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another considering the concerned article(s) was pleased to observe as follows at paragraph 27:-
œ 27¦.. It is true that in some of these articles due to the emotional outburst highflown and caustic language is used but this per se will not fall within the mischief of Ss.153A and 153B of the Code.? ?
17. On a perusal of the concluding portions of the judgments reproduced above, it would be apparent that the First Appellate Court is of the view that the Trial Court had failed to consider the article as a whole. Secondly, in substance there was no element in the article that was likely to cause disharmony and feeling of enmity, hatred or ill-will between two communities in Sikkim and that it was only directed against the management of the Bihari Dharamshala at Singtam, East Sikkim.
18. This finding would be relevant while considering the aspect of perversity which is one of the permissible principles while considering the Appeal under Section 378 Cr.P.C. In my view, the finding is indeed perverse on the very face of the record as would appear from of the portions of the judgment of the Trial Court extracted above. When we read paragraph 16 thereof along with the words appearing in paragraph 17 which read as œFrom the bare reading of the news article ¦¦¦¦¦¦.. it can be inferred Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another from the contents of the aforesaid news article ¦¦¦¦¦?. œThe wordings and the intent as contained in the news article ¦¦¦¦¦¦¦¦?. œThe imputation as made out in the news article in question ¦¦¦¦¦¦¦¦?, it would clearly indicate that the finding is based upon the reading of the article as a whole contrary to the finding of the First Appellate Court that œThere is nothing to suggest that the concerned passages were read in the context of the whole article (Exht.7(a)). The impugned judgment is silent about the article having been read as a whole.? This obviously is a perverse finding. In fact, the interpretation of the offending article by the First Appellate Court set out in paragraph 26 of the impugned judgment by setting out what was termed as the main issues in the offending article, in my view, rebels against the laid down principle that the articles are required to be read as a whole in order to consider as to whether it falls within the mischief of Section 153B IPC as laid down in paragraph 15 of the very decision of Joseph Bain Dsouza (supra) cited by the First Appellate Court in paragraph 24 of the impugned judgment.
19. The finding of the First Appellate Court that the imputation was directed against only the Managing Body Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another of the Bihari Dharmashala, in my view, appears to be perverse upon consideration of the entire article. Apart from the other remarks and statements, the words œThose managing the Bihari Dharmashala ¦¦¦¦? have to be read with œ¦¦¦¦¦.. this community never could become the citizen of erstwhile king and they were interested only in business?. œ¦¦¦... they had come to Sikkim in the time of Chogyals for business purpose ¦¦¦¦?. œThose who had come here to trade salt and oil (¦¦¦¦¦¦¦¦¦¦..) have insulted the Sikkimese people ¦¦¦¦.?. œThis columnist want to warn ¦¦¦¦¦¦¦ must understand that in coming twenty years, they will put a huge lock at Rangpo gate just like they did at Singtam Dharmashala and yours future generations while trying to enter from there will be booked under trespass?. œIf these people who had been trading salt and oil can dare to such extent then almost all the main sources have been captured by giant traders and where even the locals are restricted to entry, those mercenaries cannot think over to dare?. œAnd a day will come when the whole of Sikkim will become Dharmashala of those companies. It is shame to the people of Sikkim who have been living here from time eternal but could not even build one Dharmashala here was compelled to take refuge in others Dharmashala, and shame to those people of Sikkim who could not make best possible use of its own natural resources that they brought the companies from outside and is determined to make Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another their generations and generations refugees in their own land?. When we consider all these statements apart from some others which appear glaring, it becomes manifest that the entire article is aimed at causing insecurity in the minds of the local Sikkimese and to cause disharmony or feeling of enmity or hatred or ill-will between them and the non- Sikkimese traders, in particular the Bihari community. It certainly has the potential to fan the emotion of the local Sikkimese and incite them against the Bihari tradesmen. Interpretation of the article by the First Appellate Court as set out in paragraph 26 of the impugned judgment appears not only to be incorrect but also perverse upon consideration of the article considered as a whole. Also contrary to the opinion of the First Appellate Court, the caveat put by the author of the offending article to the effect that œthe tone in the article is not a communal tone intended to loathe any particular community? noted in paragraph 27 of the impugned judgment appear to be contradiction in terms and incongruous to the tone and tenor of the article and inserted only as an attempt to cover the venom contained therein. Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another
20. Paragraph 27 of the judgment in Joseph Bain Dsouza (supra) relied upon in the impugned judgment, in my view, has no relevance to the facts of the present case as would appear from paragraphs 15 to 26 of the decision summed up in paragraph 27 wherein it has been observed inter alia that œ¦¦¦¦¦¦¦ These articles do not criticise Muslims as a whole but criticise Muslims who were traitors to India. This attitude of the Government, according to these articles, provided Pakistan an opportunity to create explosive situation like atom bomb in India. The main thrust of these articles is against anti-national Muslims and attitude of police and the Government ¦¦¦¦¦¦¦¦?.
21. Quite different to that in the present case the imputation is found to have been made against the entire community engaged in trading, more particularly, the Bihari community and, their activities projected as hostile to the interest of the local Sikkimese people.
22. In the above circumstances, I am inclined to agree with the views of the Trial Court and hold that the offending article would clearly fall within the mischief of Section 153B(1)(c) IPC. Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another
23. It is no doubt true that the author of the offending article is one Shri Duknath Nepal, the Editor of Sangrila Times as would be evident from the records and, that he was not made a party to the proceedings. However, this would be irrelevant, immaterial and inconsequential as the offence under Section 153B(1)(c) IPC also brings within its ambit the publisher of an offending article. In the present case, it is an admitted position that the Respondent No.1 is the Editor and Publisher of the newspaper in question and, therefore, equally liable for punishment as prescribed under Section 153B(1)(c) IPC.
24. Mr. U. P. Sharma, Learned Advocate, strongly urged that the Respondent No.1 did not have the intention to fan the sentiments of the local Sikkimese people against any community but had published that article bona fide as a responsible newspaper. This, as per him, was evident from the fact that the rejoinder to the offending article, Exhibit 12, issued on behalf of the Respondent No.2, the State Government, through the Deputy Director, Department of Information and Public Relations, was also Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another published for dissemination amongst the general public. I am unable to be impressed by this submission. A responsible newspaper is expected to publish articles and news with due application of mind and taking utmost care to uphold public order and not act mechanically in publishing articles like pasting announcements and notices on a notice board. It is true that freedom of the press and public expression is the hallmark of a free democracy but, this freedom is not unfettered. It is to be exercised with responsibility keeping in view the complexity of the society and its inherent sensitivities. In my view, the penal provisions have been made in the statute books as reasonable restrictions in the exercise of such freedom with the object to regulate and maintain public order, decency, discipline and harmony in the society. If these regulatory provisions of the law are not implemented strictly, conflicts and confrontations will be the order of the day throwing the country into chaos and disorder. It is a settled position that intention in publishing such articles need not necessarily be proved because it can be gathered from the very article which is found to be offending. With this trite position in view when we consider the article in Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another question the plea taken on behalf of the Respondent No.1 that there was no mala fide intention in publishing it, clearly stands belied.
25. The other contentions placed by Mr. Sharma do not appear to bear any substance and quite peripheral and, therefore, stand rejected.
26. In the result, the Appeal is allowed. Consequently, the impugned judgment of the First Appellate Court is set aside and the conviction passed by the Learned Trial Court stands restored and confirmed. However, in the interest of justice, the sentence which is only confined to imposition of fine of Rs.5,000/- (Rupees five thousand) shall be reduced to Rs.3,000/- (Rupees three thousand).
27. No order as to costs.
28. The Respondent No.1 shall appear before the Learned Judicial Magistrate, East Sikkim at Gangtok on 31-03-2014 at 10.30 a.m. and the Learned Judicial Magistrate, East Sikkim at Gangtok shall ensure execution Sikkim Social Empowerment Association vs. Shri Anjan Upadhyaya and Another of the sentence passed in Private Complaint Case No.19 of 2008.
29. Let a copy of this judgment along with the original records of the case be transmitted to the Court of the Learned Judicial Magistrate, East Sikkim at Gangtok forthwith by a Special Messenger for its due compliance.
30. Let a copy of this judgment be also transmitted to the Court of the Learned Sessions Judge, Special Division “ I, Sikkim at Gangtok.