State Of Bihar vs Mangal Sao

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 222 of 1960

Decision Date: 29 March 1962

Coram: J.L. Kapur, Raghubar Dayal, Subba Rao

In the matter titled State of Bihar vs Mangal Sao, decided on 29 March 1962, the Supreme Court of India heard the appeal before a Bench consisting of Justice J. L. Kapur, Justice Raghubar Dayal, Justice Subbarao, Justice K. Kapur, Justice J. L. Dayal, Justice Raghubar Aiyyar, and Justice T. L. Venkatarama. The case is reported in the 1963 All India Reporter at page 445 and in the 1963 Supreme Court Reporter (1) at page 148. The central question before the Court concerned whether the keeping or use of a radio receiving set without a licence constituted an offence under section 20 of the Indian Telegraph Act, 1885. The respondent, identified as Mangal Sao, was charged under sections 3 and 6 of the Indian Wireless Telegraphy Act, 1933, as well as section 20 of the Indian Telegraph Act. The lower courts had convicted him of both sets of offences, but the Patna High Court later set aside the conviction under section 20 while upholding the convictions under the wireless telegraphy provisions. The State of Bihar appealed the High Court’s acquittal of the respondent under section 20. The judgment also referred to the earlier decision in Senior Electric Inspector v. Laxmi Chopra, reported in the All India Reporter 1962, Supreme Court Reporter pages 9 and 16.

The criminal appeal was listed as Criminal Appeal No. 222 of 1960 and was taken on special leave from the judgment and order dated 11 April 1960 of the Patna High Court in Criminal Revision No. 76 of 1960. Counsel for the State, identified as S. P. Varma and P. D. Menon, represented the appellant, while the respondents did not appear before the Supreme Court. The factual background revealed that the respondent, a businessman who owned a shop in Patna, was inspected by an Inspector of Wireless Telegraphy in November 1955. The inspector discovered a radio set being operated inside the shop and noted that the device was being used without the required licence. Consequently, the respondent was prosecuted under sections 3 and 6 of the Indian Wireless Telegraphy Act, 1933, and under section 20 of the Indian Telegraph Act, 1885. The Judicial Magistrate, Patna City, found the respondent guilty of all three charges and imposed a fine of two hundred rupees under section 20, with a default provision of simple imprisonment for three months. The Sessions Judge of Patna affirmed both the conviction and the sentence on appeal. The matter then proceeded to the Patna High Court on revision, where the High Court set aside the conviction and sentence under section 20, holding that the use of a wireless receiving set without a licence did not constitute an offence under that provision, while it upheld the convictions under sections 3 and 6 of the Indian Wireless Telegraphy Act. The State of Bihar therefore challenged the High Court’s acquittal of the respondent under section 20 before the Supreme Court.

In the lower tribunal the respondent was ordered to pay a fine of one hundred rupees, and the judgment provided that if the fine were not paid he would be liable to undergo simple imprisonment for a period of one month. The State of Bihar subsequently filed the present appeal, challenging the decision of the High Court that had acquitted the respondent of the offence punishable under section twenty of the Indian Telegraph Act. The High Court had set aside the conviction under that provision on the ground that the operation of a wireless receiving set without obtaining a licence did not constitute an offence within the meaning of section twenty, having regard to the language of section four of the same Act. Counsel for the State, identified as Mr Varma, argued that the High Court’s reasoning was erroneous and that the decision should be reversed. For clarity the Court began by reciting the relevant statutory provisions as they existed prior to their amendment by Act fifteen of 1961. Section three, clause one, defined the term “telegraph” to mean an electric, galvanic or magnetic telegraph and expressly included any appliances and apparatus used for making, transmitting or receiving telegraphic, telephonic or other communications by means of electricity, galvanism or magnetism. Section four, clause one, stipulated that within the territory of India the Central Government possessed the exclusive right to establish, maintain and operate telegraphs; however, the Government could, at its discretion, grant licences on conditions it deemed appropriate and could, by rules published in the Official Gazette, permit the establishment, maintenance and operation of wireless telegraphs on ships within Indian territorial waters and on aircraft within or above India or Indian waters, as well as of non‑wireless telegraphs anywhere in India. Section twenty, clause one, provided that any person who established, maintained or worked a telegraph in contravention of the provisions of section four or otherwise in violation of a rule made under that section would be liable to punishment; if the telegraph in question was a wireless telegraph, the offence could attract imprisonment of up to three years, a fine, or both, whereas for any other telegraph the maximum fine could be one thousand rupees. Accordingly, the section made it clear that operating a telegraph without a licence, in breach of section four, constituted an offence punishable under section twenty. The Court then identified the principal issue for determination: whether a radio receiving set falls within the definition of a “telegraph” as articulated in section three. The Court recalled that it had previously examined the reach of this definition in the case of Senior Electric Inspector v Laxminarayan Chopra, where a post and telegraph wireless receiving station that received communications from various cities was held to be a “telegraph” within the meaning of the Act. After quoting section three(1), the Court in that earlier decision observed that the wireless receiving station clearly conformed to the statutory definition of a telegraph, thereby establishing that a radio set, which likewise receives communications by electricity, should be regarded in the same manner.

In the year 1885 the expression “telegraph” was defined to include an electric, galvanic or magnetic telegraph together with any appliances and apparatus used for telegraphic, telephonic or other communications by means of electricity, galvanism or magnetism. At that time the technology of wireless telegraphy or radio had not yet been created. In 1914 section 3(1) of the Act was amended by inserting the words “making, transmitting or receiving” after the phrase “apparatus for”. The effect of that insertion was to bring the receiving of communications by means of electricity within the statutory definition of “telegraph”. Consequently a wireless receiving station, which certainly receives communications by means of electricity, fell within the meaning of the term “telegraph” under the amended provision. The Court observed that if a wireless telegraph receiving station qualified as a telegraph, then a radio set that receives communications should likewise be a telegraph, because a radio set also receives communications by means of electricity. The Court cited the authority A.I.R. 1962 S.C. 159, 161 in support of this view. It further explained that a wireless transmitter sends sound as electromagnetic waves and those waves are detected and received by the receiving apparatus. Accordingly, the Court held that a receiving set constituted a telegraph within the meaning of the Act.

The second issue before the Court was whether the respondent had established, maintained or worked a telegraph in the territory of India in violation of section 4. Section 4(1) comprised a principal part and two provisos. The principal part granted the Central Government an exclusive privilege to establish, maintain and work telegraphs. The second proviso empowered the Central Government to issue rules permitting the establishment, maintenance and working of wireless telegraphs on ships and aircraft within a specified area, or to permit telegraphs other than wireless telegraphs anywhere in India. The first proviso gave the Central Government the authority to grant licences for the establishment, maintenance or working of a telegraph in any part of India. The Court noted a difference in the language used: the principal part and the second proviso employed the conjunction “and” between “maintaining” and “working”, whereas the first proviso used the disjunctive “or”. The Court clarified that it need not decide whether the three terms in the principal part and the second proviso could be read disjunctively, because its analysis focused solely on the first proviso, which expressly made the terms disjunctive. The Court also observed that section 20 of the Act used the disjunctive “or” between “maintains” and “works”. From this, the Court concluded that under the first proviso to section 4 the Central Government could issue a licence to a person for any one or more of the activities of establishing, maintaining or working a telegraph, and that any person who performed any of those activities without a licence or in breach of licence conditions would be guilty of an offence under section 20 of the Act. The Court noted that it had been suggested that neither of the …

In this matter the Court considered whether the three expressions listed in the statutory provision—maintaining, working and using—could each suitably describe the act of keeping a radio set or employing it. Counsel for the appellant submitted that the acts of keeping or using a radio set fell within the meanings of “maintaining” or “working” as used in the section. To support this submission, the Court examined the definitions provided in the Shorter Oxford English Dictionary. The dictionary defines “maintain” in several ways, including “to keep in being; to preserve unimpaired; to pay or furnish the means of keeping up; to keep supplied or equipped; to keep in repair.” From these meanings the Court concluded that a person who possesses a radio set for the purpose of using it must necessarily keep the set in good condition, bear the expense of its upkeep, and arrange for repairs when it fails. Accordingly, such a person can be said to maintain the radio within the meaning of the statutory term. The same dictionary offers multiple senses of the verb “work,” such as “to bestow labour or effort upon,” “to manipulate so as to bring it into the required condition,” “to operate upon so as to bring it into some state or to convert it into something else,” and “to bring or get into some condition by labour or exertion.” The Court observed that when an individual tunes a radio, he is appropriately described as operating upon or manipulating the device in order to receive communications; in other words, the individual works on the radio. Based on these definitions, the Court held that a person who possesses a radio for the purpose of use both maintains and works the device. The facts of the present case established that, when the Inspector visited the respondent’s shop, the respondent was using the radio and therefore was working it. The High Court had relied upon a decision of the Madras High Court in In Re Pandian (A.I.R. 1938 Mad. 821), where Justice Pandrang Row appeared to accept the contention that the use of a wireless set without a licence did not constitute an offence under section 20 of the Act. The Madras High Court judge had remarked that it was “extremely doubtful whether the use of a wireless receiving set without a licence would amount to an offence under section 20, Telegraph Act,” and suggested that section 4 of that Act was not intended to cover ordinary wireless receiving sets used to receive broadcast programmes. However, the judge did not give a final opinion on the construction of the provision and seemed to limit section 4 to telephones established, maintained and worked by the Government or with its permission. With respect, the Court noted that the judge failed to consider the first proviso to section 4, which expressly provides that a licence may be granted for any one of the three purposes—establishing, maintaining or working—a telegraph. Consequently, the Court concluded that the respondent, by using the radio without a licence, had committed an offence under section 20 of the Act and accordingly convicted him under that provision.

The Court noted that, after reviewing the material facts and the legal provisions applicable to the case, it was of the view that imposing an additional term of imprisonment or any further penalty was unnecessary. The Court explained that the respondent had already been subjected to a sentence that was pronounced under sections three and six of the Indian Wireless Telegraphy Act, 1933. Those sections, according to the Court, covered the statutory offences for which the respondent was charged, and the punishment imposed under them was considered full and adequate. Consequently, the Court held that a separate sentence for the same conduct would be superfluous and could not be justified. In light of this assessment, the Court directed that the order of the High Court be altered, but only to the extent required to reflect that no further sentencing was to be imposed. The modification therefore confirmed that the earlier sentence remained in force and that the High Court’s direction concerning any additional punishment was set aside. The Court further stressed that the aim of sentencing was to ensure that the offender received a just and proportionate punishment, and that the existing term already fulfilled that objective. Accordingly, the Court found no justification for a second, distinct sentence.