ORDER
P. S. Mishra, C. J.
1. Editor of a language newspaper has moved the instant petition under Article 226 of the Constitution of India questioning the action of the Superintendent of Police, Kurnool District and the Station House Officer, Urban Police Station, Allagadda, Kurnool District in arresting Sri. V. Krishna Mohan, who was in-charge of the area for reporting about the by-elections in the Allagadda Legislative Assembly Constituency held on 6-2-1997, in Crime No. 19 of 1997 for the alleged offences under Sections 379, 505 and 411 of the Indian Penal Code and Sections 135 and 136 of the Representation of the People Act. 1951.
2. Facts not in dispute arc as follows : The Election Commission of India notified the elections to three Assembly Constituencies in the State of Andhra Pradesh, including Allagadda Constituency and polling took place in the said Constituency accordingly on 6-2-1997. Several political parties fielded their candidates, besides independents for the election. Krishna Mohan, however, sent a report for publication to the newspaper immediately after polls and also sent photographs of one ballot paper bearing No, 183125 for publication, which news item and the photograph of the ballot paper were published in 'Vartha' Telugu Daily on 8-2-1997. Krishna Mohan, however, was arrested on 8-2-1997 itself allegedly in the case registered as Crime No. 19 of 1997 of the Urban Police Station. Allagadda for the allegedly aforementioned offences.
3. According to the petitioner- Krishna Mohan, who was in-charge of the area for reporting about the elections, while discharging his duties, found that polling at Booth No. 125 of the Assembly Constituency was rigged and some persons took away ballot papers. One such ballot paper they dropped on the road, which was carrying the No. 183125 and had the vote mark on the symbol of 'Hand' and signed by one Sivanath Reddy. Krishna Mohan's report in this behalf along with a photograph of the ballot paper was published in the newspaper. The police, however, at the instance of the Ruling Telugu Desam Party M. L. As. of Kurnool District, registered a case against Krishna Mohan, the reporter. As per the instructions of the local political bosses, the Returning Officer gave a complaint that one ballot paper was missing and Krishna Mohan was arrested by the police.
4. Second respondent, the Election Commission of India is not a necessary party for the purpose of the instant proceedings before us. Third and fourth respondents have entered appearance and filed counter-affidavits. First respondent is represented before us'by the learned Additional Advocate General.
5. Inspector of Police and Officer in-charge of Allagadda Town Police Station, Kurnool has stated in the counter-affidavit that Krishna Mohan was arrested on 8-2-1997 at 13.30 hours by the Inspector of Police, II Town Police Station. Nandyal and seized the ballot paper under a cover of police proceedings and registered a case in Crime No. 19 of 1997 on the complaint of Sri Sartaj Babu, Returning Officer for 183 Allagadda Assembly Constituency and Revenue Divisional Officer, Nandyal through the Superintendent of Police, Kumool. The said First Information Report along with the accused-Krishna Mohan, the ballot paper and the original police proceedings were transferred to Allagadda Town Police Station on the point of jurisdiction, as the ballot paper was said to be used in booth No. 125 situated in Zilla Parishad Girls High School, Allagadda. On receipt of the above, he (the Inspector of Police, Allagadda Town Police Station) registered Crime No. 13 of 1997 and sent Krishna Mohan to the custody of the local judicial Magistrate. There is some controversy, however, as to the ballot paper which has been recovered from the possession of Krishna Mohan. While the petitioner has given the number as 183125. the Inspector of Police has called it 'No. 101012'.
6. Krishna Mohan has filed an affidavit and given his version of the occurrence in these words :
'During my investigation I found many election offences being committed. I have written the news items exposing the same. The elections in Rayalaseema, in general, depends upon the person who is contested but not on the people who vote. On 6-2-1997 i.e.. the day of polling, VaarthaTelugo Daily published a news item exposing the schemes of the ruling party to win the elections. I also exposed the Bomb attack on the Congress candidate and kidnappings of the Village and Mandal level congress leaders. The scheme of the ruling party to be implemented during the polling and the disinterest of the voters etc.. were published in Vaartha Daily. It is known to everybody that both the parties were indulging corrupt practices, such as rigging and booth capturing. As such, the Superintendent of Police selected strict officers and posted them at the places where the Congress has got control and the places where the ruling party has got control, the obedient officers arc posted. All these things were exposed by me in the daily newspaper. On the polling day, I started from Nandyal in the earlier hours to cover the news. I first visited Gospad, Deebaguntla. Sirivella, Erraguntla etc., and reached Allagadda during the afternoon. I visited the Girls High School where . the polling is going on. It was Polling Station No. 125 and I could find that there is some understanding between the T. D. P. workers and the Congress workers, which is to the effect that the ruling party will rig 100 votes and Congress Party will be allowed to take 35 votes. The rigging was going on peacefully with the active cooperation of the Presiding Officer and the other staff who has no option. At that lime the Joint Collector Mr. Haripreeth Singh came to the Polling Station No. 125. Having seen his entry, both the groups fled away from the same (sic). The Joint Collector having suspected what has happened stayed for some time so that the polling will be held and the voters will be allowed to exercise their franchise. I left the place and I was going to the Polling Station Nos. 133 and 134 located at Government Junior College just in front of the Girls High School were the polling Station No. 125 was situated, I found a ballot paper, bearing No. 101012, but had no time to think of it as I got the information that the rigging is going on in the polling station Nos. 133 and 134. Immediately I went there. Sri A. V. Subba Reddy. the right hand of the Booma Nagi Reddy along with his associates successfully completed the rigging in Polling Station No. 133 and entered in the Polling Station No. 134 where there was some opposition in the shape of Sri Golla Naga Raju, the Congress Agent. He successfully resisted the attempts of Sri A. V. Subba Reddy and during the scuffle, some ballotpapers were torn. The information was given to the Superintendent of Police Sri Koteshwara Rao and the District Collector. Sri Rajcshwar Thiwari reached the Polling Station No, 134. Both of them shouted with the Police who are on duty at Polling Station No. 134. They also questioned Sri Golla Naga Kaju. the Congress Agent. At the time the T. D. P. candidate Smt. Sohha Nagi Reddy and her brother Sri Mohan Reddy i.e.. son of S. V. Suhba Reddy. the Cabinet Minister came to the spot. Sri Golla Naga Raju gave a complaint to the Police Slat ion and the District Collector against the T.D. P. candidate slating that she threatened me thrice. At the time Shri S. V. Mohan Reddy S/o S. V. Suhba Reddy. the Cabinet Minister abused Sri Golla Naga Raju and threatened him in the very presence of the District Collector and the District Superintendent of Police. But the said Officers could not say anything and tried to ignore the same. As Sri Golla Naga Raju gae a complaint against the ruling Party candidate instead of taking action against Sri A. V. Suhba Reddy. who alleged lo have committed rigging. Sri G. Naga Raju was arrested. By the time I completed my lour of Allagadda Constituency, and came to Nandyal it was around 7 o'clock in the evening. Immediately, I prepared news item about the incidents which took place at Polling Station Nos. 133 and 134. I narrated how the ruling party used its power and how the District Administration surrendered itself. Those news appeared in the local editions of Vaartha Daily dated 7th February. 1997. Ql have-also written the complaint of the Congress candidate to the effect that the Police is sold. I also wrote the comments of the ruling party candidate to the effect that there was poor attendance of the voters. 1 have also written a news item about the poor response of the voters in various places. By the time I completed my writing of news. I was late and I could examine the ballot paper which I found on the road in IVoni of the Polling Booth No. 125. I was concentrated on the said Ballot paper on 7th February, I997 and I found Ihat the Ballot paper is ineant for Pol ling Stat ion No. 125. There is a mark on the hand symbol and on the back of the ballot paper a number i.e.. 183/125 and a signature of one P. Sivanatha Reddy is found. I got published the ballot paper after the same is photographed and I got the mark on the hand symbol photograph separately and go! printed in the local daily newspaper. As I was tired, theentire week. I got up a little late on the 8th by the time I got ready it was around 12.00 in the afternoon. I went to Office collected the ballot paper and went to the Counting Centre at Nandyal to handover the Ballot paper to the District Collector in the presence of all the officers and other press people. But Sri Rani Reddy. the Circle Inspector. Nandyal Town Police arrested just in front of the counting centre and straight way away I was taken to Police Station. I was not allowed to enter into the Counting Centre. The reasons for arrest was not disclosed to me. I was not allowed to contact my Advocate. Sri Narsimlu. the Reporter of Eenadu having come to know about the same came to the Police Station. On nit request, he contacted Sri V. Ramachandra Rao. Ravinoothala Durga Prasad. Advocates. On the efforts made by Sri Narsimlu. both the Advocates were allowed to come to Police Station. But however they were not allowed to contact me. Only on their coming to Police Station, it was informed that I was arrested for committing theft of Ballot Paper on the complaint given by the Returning Officer Sri Sarthaj Babu. Those two Advocates met the Deputy Superintendent of Police Sri K. Ganganna and the Circle Inspector Sri Rami Reddy and left. After the Advocates left I was immediately shifted to Allagadda Town Police Station, who appears to have instructed to extract confessional statement from me. Sri Jogi Reddy made his attempts to extract and writing confessional statement from me lo the effect that I committed theft of the said Ballot Paper. I was made to stand for hours together. As the local people and other organizations came to know about my arrest and they started coming to the police Station. Suspecting some threat I was shifted to Sub Jail. Allagadda i.e.. just adjacent lo the Police Station. Sri Chandra Babu. the Deputy Superintendent of Police and Jogi Reddy. Inspector of Police instructed Sub Jail Authorities to keep me in cell but the Sub Jail Authorities did not keep me in cell but I was made to sit in front of the cell on the floor. There were some arrack cans in the cell in front of which I was made to sit. Around 12.00 clock in the mid-night I was took from the Sub Jail to Nandyal and produced before the Magistrate Sri V. Vara Prasad. He directed the Police Officer to produce me on 10th Feb 1997 in the Court. I was once again back to the Sub Jail and I was kept in Sub Jail on 9th and I was taken to Court of the Judicial First Class Magistrate.Allagadda around 1.00 p.m.. wherein Sri V. Ramachandra Rao and Sri Durga Prasad, Advocates filed application for graining bail.'Krishna Mohah has also slated that eversince his working as a re porter for the newspaper, he sarted writing about the factions in Nandyal area in general and in Allagadda in particular. He has written a number of news items on the Police Officers who are working for the Faction leaders and participating in unlawful activities. He has alleged.
The Officers from top to bottom are involved in illegal activities and exposed the same including against the Superintendent of Police Sri Koteswara Rao. I exposed about the collection of 'Mamools' by the Police. On the reports published by me, the Anti Corruption Bureau also raided and registered a case against one Sub Inspector. Though a Crime was registered against the Sub Inspector, till today no action is taken. The entire local police is against me as I did not spare anybody. But nobody could do any thing because everything I have written is a fact and supported by evidence. Besides that I also exposed the conduct of the local T. D. P. leaders during the Allagadda by election and the said articles were published by Vaartha Telugu Daily District Edition. The entire District Administration is waiting to take action against me. I also know that they may take revenge against me but as a duty bound Journalist, I prepared the news item in respect to the ballot paper and my superiors promptly published the same as a news item ......... The said news itemexposed how the Administration is functioning in the District. As such the entire District Administration has taken it as a prestige issue and I was mentally tortured during my illegal detention from 8th afternoon to 10th afternoon. I was not provided food nor given any bed-sheets. Without minimum facilities, such as food and bed I was in the Police custody for about 48 hours.'
7. A counter affidavit has been filed on behalf of the first respondent by J. Seetha Rama Rao, who has been described as Deputy, Chief Electoral Officer and Deputy Secretary to Government, General Administration (Elections) Department. He has slated, besides certain legal contentions, that the Returning Officer, 183. Allagadda Assembly Constituency in his comprehensive report to the Election Commission of India on the day of poll has reported that all the diaries ofPresiding Officers have been scrutinised and no irregularities detected. He has, however, reported therein that unknown persons entered in Polling Station No. 134 of Allagadda town and torn 12 ballot papers and they were not inserted into the ballot box. He has also mentioned that the poll was not adjourned and hence no repoll is recommended. The Deputy Chief Electoral Officer has also stated that the Presiding Officer of Polling Station No. 125, located in Girls High School. Allagadda Town, where the rigging is alleged to have been taken place on the day of poll, had also presented the Presiding Officer's diary which did not/ do no! indicate any rigging. He has, however, stated as follows ;
'It is a fact that a ballot paper bearing No. 101012 used in P. S. No. 125 of 183-Allagadda Assembly Constituency has been published in the local edition of 'VaarthaTelugu Daily' on 8-2-97 alleging that rigging has taken place by unknown miscreants and the said ballot paper which was thrown by miscreants while fleeing. was found in the street when the Joint Collector, Kurnool has made a surprise check. The Joint Collector, Kurnool who supervised the poll process and visited various polling stations in Allgadda town including the P. S. No. 125 has not found any irregularity as alleged by the petitioner, It is pertinent to note that none of the polling agents or the contesting candidates had made any complaint about alleged irregularity in P. S No. 125.'
According to the Deputy Chief Electoral Officer, the Presiding Office of Polling Station No. 125 at the end of the day of the poll had kepi all the-relevant documents, including the counterfoils of used ballot papers in a sealed statutory cover as required under Rule 46 of Conduct of Elections Rules. 1961 and they were kept in the safe custody in Sub-Treasury. Allagadda. The documents which were kept in safe custody shall not be opened and their contents shall not be inspected by. or produced before any person or authority except under the order of competent Court as per Rule 93 of the said Rules. The Returning Officer, in his Rc. I. 2459/96 dated 8-2-1997. had addressed the Superintendent of Police. Kurnool informing him about the publication of ballot paper No. 101012 in the local newspaper 'Vartha' Cuddapah edition dated 8-2-1997 and had staled that he had verified the ballot paper account submitted by the Presiding Officer of Polling Station No. 125 and with the ballot papers actually found in the scaled ballot box on the day of counting on 8-2-1997. The Returning Officer, according to the Deputy Chief Electoral Officer, has also stated that as per the ballot paper account, out of 720 ballot papers supplied to the Presiding Officer concerned, 585 number of ballot papers were used during the poll, but during the counting, only 583 number of ballot papers were found in the ballot box and the ballot paper published in newspaper is a used one. He has alleged,
'As the ballot paper is a classified document and mere possession by an unauthorised person is a substantive offence, he has requested the Superintendent of Police, Kurnool to investigate the entire incident and take action against the Reporter and others responsible for this offence. Based on this complaint by the Returning Officer, the Superintendent of Police endorsed the complain! to the Circle Inspector of Police, Nandyal II Town Police Station to register a case and take necessary action. On the endorsement, however, the Inspector of Police, II Town Police Station, Nandyal, the complaint was regisiercd by the S. H. O. Nandyal on 8-2-1997 at 12.50hours, vide Crime No. 19 of 1997, under Sections 379, 505, 411 of the Indian Penal Code and Sections 135 and 136 of the Representation of the People Act, 1951.'
According to the Deputy Chief Electoral Officer, during the course of investigation the accused was arrested on 8-2-1997 at 13.30 hours at Government Polytechnic College, Nandyal where counting of votes has taken place and ballot paper bearing No. 101012 was recovered from him under a cover of police proceedings and transferred to Allagadda Police Station.
8. Krishna Mohan has made some allegations about his custody for about 48 hours with the police without any legal authority, which is purportedly answered by the Deputy Chief Electoral Officer in these words:
'As the Judicial First Class Magistrate, Allagadda was away from Headquarters, the respondent No. 4 had sent the accused to the In charge Magistrate at Nandyal who had granted Judicial custody and instructed to produce the accused on 10-2-1997 Monday, as the interveningday i.e., 9-2-1997 happened to be Sunday. Accordingly, the accused was produced in the Hon'ble Court of Judicial First Class Magistrate, Allagadda and the accused was released on bail at 13.50 hrs on 10-2-1997 on the bail application moved by Sri R. Durga Prasad, Advocate, Nandyal.'
9. The Superintendent of Police, Kurnool hasfiled counter-affidavit and stated that there wasno report of rigging from the Presiding Officer orReturning Officer and has denied the allegationsagainst him as well as the police in general andasseried that there was nothing which was deniedto Krishna Mohan which ordinarily is provided toany person, who is taken in custody by the policeand/or remanded to custody under the orders ofthe Court.
10. We have chosen to state briefly the facts that are relevant and noted that the Court is always slow in interfering with the investigation of a case by the police or the course that any criminal case must take from the registration of the case until the submission of the report under Section 173(2) of the Code of Criminal Procedure, 1973andafter cognizance is taken in the Court in accordance with law. We are informed in course of the hearing of the petition by the learned Additional Advocate General and we have always been conscious of the law, that it would be difficult in a proceeding under Article 226 of the Constitution of India to enter into the discovery of facts by the process of any evidence either on behalf of the prosecution of the accused and a proceeding under Article 226 of the Constitution is not meant for interference with the statutory functions of the police in registering a case, investigating the same-in accordance with law and submitting the report in Court as required by the Criminal Procedure Code, 1973. It is only in the rarest of the rare cases and in cases in which the Courts do not entertain even the slightest doubt that the accused may not be innocent and the action of the complainant and the police, in such circumstances, could be genuine. Do we have, however, in the instant case, any doubt that ingredients of the offences as alleged against Krishna Mohan are made out and that his prosecution is bona fide and/or is started in good faith. Do we come to definite opinion that no offence is made out against Krishna Mohan and if at all there is some semblance of offence as alleged, the prosecution is mala fide. Havingexamined the facts of the case and given our anxious considerations to all aspects of the mailer and the contentions of the learned Additional Advocate General, we are satisfied that no offence is made out for registration of any crime or offence against Krishna Mohan and in all probabilities lodgment of case against him is actuated by, if not in fact, malice in law.
11. When fads are shuffled, they reveal that the Returning Officer, who purportedly is the informant, had no information of any theft or removal of any ballot paper from the Polling Station or any person being in possession of a classified document i.e., ballot paper, until the news item in 'Vaartha' morning edition dated 8-2-1997. The reporter, Krishna Mohan is the author of the report and his version is the first and the earliest in respect of removal of the ballot paper from Polling Booth No, 125 when polling still was going on and according to him, it was disturbed by miscreants, who also removed ballot papers from the said booth. He has categorically admitted in his version in the news item that he picked up the ballot paper, that the miscreants who had rigged the polling station No. 125 had thrown the ballot paper on the road and he had picked up the same. The said news item alone alerted the Returning Officer, who, according to the version of the respondents confided in the District Superintendent of Police and as advised, lodged complaint for the alleged offences under Sections 379, 505 and 411 of the Indian Penal Code and Sections 135 and 136 of the Representation of the People Act, 1951. Ballot paper is a classified document. Section 135 of the Representation of the People Act, 1951 makes removal of ballot papers from polling station an offence and states,--
'(1) any person who at any election fraudulently takes or attempts to take, a ballot paper, out of a polling station, or wilfully aids or abets the doing of any such act, shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five hundred rupees or with both.
(2) If the Prescribing Officer of the polling station has reason to believe that any person is committing or has committed an offence punishable under sub-section (I) such officer may, before such person leaves the polling station, arrest or direct a police officer to arrest such person and may search with person or cause himto be searched by a police officer:Provided that when it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.
(3) Any ballot paper found upon the person arrested on search shall made over for safe custody to a police officer by the presiding officer, or on the search is made by a police officer, shall be kept by such officer in custody.
(4) An offence punishable under sub-section (1) shall be cognizable.'
Removal of a ballot paper as such is not an offence. If it is fraudulently taken or attempted to lake ballot paper out of a polling station, it is an offence. The most expansive definition of the expression 'fraudulently' is available in Section 25 of the Indian Penal Code, which says, 'a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.' No act or conduct mentioned in the First Information Report even remotely suggests that Krishna Mohan intended 10 defraud any person. All that he did was that he picked up a ballot paper and published the information that he has so found a ballot paper for every person to know, including the Returning Officer who admittedly came to know about the ballot paper being found by Krishna Mohan and being in his possession. One can immediately dispose of the offence under Section 379 of the Indian Penal Code by referring to the requirement for constituting the said offence of theft which is intended to lake dishonestly and moveable property out of any person without that person's con sent. 'Dishonestly' is an expression defined under Section 24 of the Indian Penal Code to signify, doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person. 'Wrongful gain' is defined under Section 23 of the Indian Penal Code as a gain by unlawful means of properly to which the person gaining is not legally entitled and 'wrongful loss' is defined as the loss by unlawful means of properly to which the person losing it is legally entitled. Unless there is something to show that there is any unlawful means adopted by Krishna Mohan for gaining the ballot paper, to which he is not legally entitled and which ballot paper is a property gained by him illegally or there is loss of property to some one by unlawful means adopted by Krishna Mohan lo charge him for Section 379IPC, will only be miscarriage of justice. No one can find anything unlawful in picking up even a valuable properly which is lying on the road unless it is shown that it is stealthy removal for persona! gain. If the law enforcers would start seeing in picking up a valuable object from the road an offence, instead of locating the owner of the property to hand over the same to him when produced by such person who had picked up the properly, they would register cases against innocent persons for holding them and the person who has lost the property, no citizen would come forward to help police in detecting crimes of theft and possession of stolen properties. Section 411 of the Indian Penal Code is introduced, it seems, only formally mat any attempt to consider whether, on the facts us above. Krishna Mohan could be charged for dishonestly receiving or retaining any stolen property. As we have already noticed, it is no one's case mat Krishna Mohan dishonestly received or retained the ballot paper. No one can see any dishonesty in his publishing the information of his being in possession of a ballot paper which miscreants had thrown on the road, A larger question, however, has arisen in the instant proceeding that a journalist for reporting the events which he has claimed to witness is charged under Section 505 of the Indian Penal Code. Section 505 of the Indian Penal Code says.-
'(1) Whoever makes, publishes or circulates any statement, rumour or report. -
(a) with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman in the Army. Navy or Air Force of India to mutiny or otherwise disregard or fail in his duly as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community;
shall be punished with imprisonment which may extend to three years, or with fine, or with both.'
It also says, whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, orwhich 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, haired or ill-will 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 and whoever commits an offence of publishing or circulating any statement or report, as above, 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. Exception to the above publication or circulation or any statement or report is incorporated in the Act by the amendment in the year 1969 by Act 35 of 1969 in these words :
'It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid.'
It indeed raises a question--whether a fearless and frank reporting of evens in a newspaper would, for the reason of annoyance by the officials or the officers, attract Section 505 of the Indian Penal Code or rim. Although the Returning Officer and the District Superintendent of Police can be easily assessed as knowledgeable and quite well informed about the laws, which, in the fact situation like above, would be algaecide, particularly when it would concern a newspaper man. the charge for the alleged publication and circulation of the report about me rigging at a polling station in course oft ho election based solely on the report by Krishna Mohan has betrayed intentions. It is difficult to imagine how, for publishing in the newspaper information about the incidents that had taken place in course of elections at polling booth No. 125 of the Constituency. Krishna Mohan. the journalist, committed an offence punishable under Section 505 of the Indian Penal Code. Nothing stated in the report can he said to be intended to cause or likely to cause any officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or other wise disregard or fail in his duty as such, or to cause or likely tocause or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the Slate or against the public tranquility, or to incite, or likely to incite any class or community of per son to commit any offence against any oilier class or community. !t is also not possible to visualise in the publication of the news item any rumour or alarm with item to create or promote or 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 ill-will between different religious, racial, language or regional groups or castes or communities. Obviously, there is nothing suggestive of any offence committed by Krishna Mohan in place of worship etc. We shall advert when we shall deal with the right under Article 19(1)(a) of the Constitution of India how publication of a news should he viewed by the police and other persons in authority. We observe, however, that the respondents have extended their imaginations to go beyond comprehensions which laws permit in charging Krishna Mohan for the offence under Section 505 of the Indian Penal Code. The only offence, in respect of which some effort has been made before us by the learned Additional Advocate General and which for the reason of possession of hallo! paper Krishna Mohan can he suspected to have committed is under Section 136 of the Representation of People Act. 1951. Section 136 of the Act. 1951 in the relevant parts reads as follows :
'Sec. 136(1) A person shall be guilty of an electoral offence if at any election he-
(a) to (c) xxxxxxxxxx
(d) without due authority supplies any ballot paper to any person or receives any ballot paper from any person or is in possession of any ballot paper.
(e) to (g) x x x x x x x x x x x
(2) Any person guilty of an electoral offence under this section shall -
(a) x x x x x x x x x x x x x
(b) if he is any other person, be punishable with imprisonment for a term which may extend to six months or with fine or with both.'
Petitioner has not disputed the assertion that the ballot paper is a classified document und in view of the above provision in Section 136 of theRepresentation of the People Act. 1951, possession of a ballot-paper without due authority is an offence. The relevant expression in sub-section' (1) of Section 136. 'shall be guilty with electoral offence if at any election he -'. 'without due authority ......... is in possession of any ballotpaper' have to be construed strictly. The word 'At' receives different meanings depending upon the context it is used and the expression it qualifies. In itself, however, it is used to express position 'exact' or 'approximate'. When it is said 'wail at the corner', it indicates near the comer indicated to the person who is asked to wait. When it is said (hat 'the people is at school', it means, he is in some part of the School. 'At any election' in the context of an electoral offence must necessarily mean at some point in course of the election in the polling booth or near the polling booth or in course of the counting of ballot papers or before or after the counting of ballot papers. It would be unimaginable that an electoral offence at any election will he seen in possession of a ballot paper after quite a few months of the elections or in the circumstances in which the person in possession of the ballot paper cannot be said to be in any manner near to or in the process of election. A reading of the provisions in Section 136 and other provisions in the Representation of People Act declaring certain acts or omissions punishable leave no manner of doubt that acts or omissions which directly affect the election and which are unauthorised by law or are fraudulently done alone are punishable. A person who finds the ballot paper fallen on the road cannot be said to have done anything at any election as some one else has removed the ballot paper and thrown it on the road.
12. It has been urged before us that when possession without due authority of the ballot paper is declared an offence and there is no dispute to the fact that Krishna Mohan was in possession of a ballot paper without due authority, offence as afore-mentioned is committed by him and it is for him to explain that his possession is not without any authority. We have given our anxiousconsidcrations to this aspect of the matter. Had this been a case of the loss of the ballot paper being detected by the informant - Deputy Chief Electoral Officer or any other person and in course of the search of the missing ballot paper, it would have been found in possession of KrishnaMohan, it could be said that he possessed a classified document without due authority and thus committed an offence at the election in which the said ballot paper was used or was likely 10 be used. Krishna Mohan himself revealed that he had found ballot paper which miscreants had thrown on the road and reported to the newspaper, which the newspaper, in turn published that election at Polling Booth No. 125 was rigged and that miscreants had taken away ballot papers and one such ballot paper, which had fallen while they were running away from the scene of occurrence, was found by him. It is he who informed through the newspaper all concerned and the public at large and it is that information by him which activated the Returning Officer and others and the First Information Report is registered. As we have observed earlier, it fails to satisfy in test of reason how, when Krishna Mohan informed that election at Booth No. 125 was rigged and miscreants removed ballot papers and one such ballot paper he had found, respondents decided to register a ease against him for the possession of the ballot paper and ignored altogether allegations of serious electoral offences, which he reported through newspaper to all concerned. Principles which the Courts have evolved in respect of malice in its legal sense arc slated quite candidly in several pronouncements of the Courts in India and in the Judgment of the Supreme Court in S. R. Vcnkataraman v. Union of India, : (1979)ILLJ25SC . Significant extracts on the principle of malice in law from Shearer v. Shields. 1914 AC 808, Pilling v. Abergele Urban District Council, (1950) 1 KB 636, The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras (1890J 24 QBD 371, and Sedler v. Sheffleld Corporation (1924) 1 Ch. 483, are quoted which reads as follows : (at Pp. 51-52 of AIR)
'Malice in law is, however, quite different. Viscount Haldane described it as follows in Shearer v. Shields, (1914) AC 808 at p. 813 :--
A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law. and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignoranlly, and in that sense innocently.'
Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongfulact intentionally but without just cause or excuse, or for want of reasonable or probable cause.
It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C.J., in Pilling v. Abergele Urban District Council, (1950) ! KB 636 where a duty to determine a question is conferred on an authority which state their reasons for the decision, 'and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the Court to which an appeal lies can and ought to adjudicate on the matter.
The principle which is applicable in such cases has thus been stated by Lord Esher M. R. in the Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras, (1890) 24 QBD 371 at page 375 :--
'If people who have to exercise a public duty by exercising their discretion lake into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.'
This view has been followed in Sedler v. Sheffield Corporation, (1924) 1 Ch 483.
We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another.
The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the 'public interest', to a purpose wholly unwarranted by it, and toarrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to he infected with an abuse of power.
13. There are some allegations made on behalf of the petitioners that respondents have acted at the instance of the political party in power and the local Member of Legislative Assembly in particular, but the allegations are all mostly of general nature and lack in confidence. It will be difficult to treat the act of the respondents as a malicious vendetta and for collateral reasons. It may thus be not a case of malice in fact, but on principles as above, it is indeed a case of mala fide in law as we consider reasonable that when Krishna Mohan's report was taken as the best for registering a case for missing ballot paper, all that he said would have been taken into notice and not such part of the report in which he said he possessed a ballot paper. While recording the case it could only be proper for the respondent to register a case of rigging at Polling Station No. 125, removal of ballot paper by some miscreants and that one such ballot paper was dropped on the road by one of them when they were escaping after committing the electoral offence. It is immaterial for the inference of legal mala fide in the registration of the case against Krishna Mohan whether the Returning Officer, the District Superintendent of Police and the Inspector of Police acted in good faith. It is enough for the inference that the registration of the case against Krishna Mohan for the afore-mentioned crimes is mala fide in law to notice that respondents failed (o take into account the entire report of Krishna Mohan and instead decided to charge him of the offence in respect of which there was no report with them except Krishna Mohan's own version. Respondents have admitted that they were informed about the missing ballot paper only from Krishna Mohan's report and thus they have acknowledged that doings as alleged by him were not known to them from before and although Krishna Mohan's report disclosed commission of serious electoral offences, they registered no case and made no efforts to verify the truth or otherwise of his allegations.
14. The people of India while constituting sovereign socialist democratic republic have solemnly affirmed that liberty of thought, expression, belief, faith and worship shall besecured to all the citizens of India and guaranteed under Article 19(1)(a) of the Constitution of India for all citizens the right to freedom of speech and expression. Freedom of the press is not expressly mentioned in Article 19, but has been held by the Courts and by now is well recognised that it flows from the general freedom of speech and expression guaranteed to all citizens of India. This freedom includes not merely the freedom to write and publish what the writer considers proper, subject to reasonable restrictions imposed by law for. specific purpose, but also the freedom to carry on the business so that information may be disseminated and excessive and prohibitive burden restricting circulation may be avoided. Reasonable restrictions are referable to Clause (2) of Article 19, which reads as follows :
'Nothing in sub-clause (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 sub-clause in the interests of the sovereignty and integrity of India, the security of the Slate, friendly relations with foreigh States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.'
Respondents appeared to know that as a press person and as a citizen of India, Krishna Mohan as well as the petitioner enjoy the freedom of speech and expression and unless it is shown to have violated any existing law, it would be difficult to restrict publication of the news with respect to the elections, particularly when a vigilant press is expected to watch whether there is any unfair practice resorted to by any of the political parties or contesting candidates. Reference to Section 505 of the Indian Penal Code in the First Information Report as one of the charges against Krishna Mohan, it seems, is made only to bring the publication of the news item about rigging at one of the polling stations in the elections within the purview of an existing law which prohibits publication in respect of the matters enumerated therein. Since, however, Krishna Mohan's report and the news item relate to elections and electoral offences and to prove a point that elections were illegally interfered with when Krishna Mohan published a photo copy of the ballot paper, he was charged of the offences under Sections 135 and 136(1) of the Representation of the People Act, 1951. Other offences were added only for Krishna Mohan to suffer for reporting about the unfair acts at the polls. Is it not a case that one who protested against the illegal acts and electoral offences and brought to the notice of al I concerned commission of such offences was himself made to suffer indignity of having been arrested, detained and otherwise was Krishna .Mohan charged for the afore-mentioned offences with a view to deter him from discharging his duties freely and fairly. These as many such questions do arise and in course of the hearing of the instant application, we have been addressed at the Bar on several aspects of the matter. For the reasons that we have noticed above, however, when we hold that the allegations which have been leveled against Krishna Mohan do not constitute any offence and in any case registration of a case in Crime No. 19 of 1997 of Allagadda Urban Police -Station. Allagadda against Krishna Mohan is mala fide in law, we deem it no longer necessary to enter into the wider sphere of the subject matter before us. Yet. because Krishna Mohan's arrest has been taken as a threat to the freedom of press, we cannot brush aside the above apprehensions and the fear which has been expressed at the Bar on behalf of the petitioner that in case respondents arc not severely dealt with and are allowed to escape without being warned and cautioned, they may repeat and do again and again, use their power to gag the press and deny to the citizens the freedom of speech and expression. Whenever occasions have come, the Courts have recognised the importance of independence which police and the executive must enjoy from any interference, including interference by Courts and emphasized over and over again that the Court should not interfere with the investigation of case. When, however. Courts have chosen to emphasis that police must have complete freedom in the matter of investigation of cases, it has never bargained that it shall allow them to go burser and do things which instead of upholding the rule of law will undermine or destroy it. Independence of police which is a wing of the executive of the State cannot be over-stated and extended to leave to them the freedom to decide when to register case, when to investigate, whom to arrest and whom not to arrest. Their independence must always be viewed within the limitations imposed upon their functioning by the laws and no law, to ourknowledge, gives such freedom to the police that it would decide to register a case against a journalist, who, in discharge of his duties, could come to know certain incidents. which he thought in public interest, should be published and accordingly reported and finally got published in the newspaper. We cannot in spite of constraints resist recording our disapproval to the arrest of Krishna Mohan by the respondents for the alleged offences which never existed and for reasons which we have already noticed smack of malice. We. however, desist from going any further than quashing the proceedings in Crime No. 19 of 1997 for we think, on the tacts of this case, one could legitimately reel that when ballot papery were still to be counted, the atmosphere was surcharged and administration was at its wits end. respondents 3 and-4 and others who were connected with the affairs of the election could be found quite agitated when the news was published that election was rigged, still no person in authority can afford to he lax or to act hastely.
15. In the result, the application is allowed. All proceedings in crime No. 19 of 1997 of Allagadda Police Station. Allagadda Kurnool District pending investigation are quashed. Respondents 3 and 4 shall, however, pay the cost of the proceedings. Hearing fee Rs. 2.500/-.
16. Application allowed.