State of Bihar v. Mangal Sao

Judgment

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 222 of 1960. Appeal by special leave from the judgment and order dated April 11, 1960, of the Patna High Court in Criminal Revision No. 76 of 1960. S. P. Varma and P. D. Menon, for the appellant. The respondents. did not appear. 1962. March 29. The Judgment of the Court was delivered by SuBBA RAO, J.--Tbis appeal by special leave aiiainst the judgment and order of the High Court at Patna raises the question whether-to use neutral 1 S.C.R. terms-the keeping or using of a radio set by the person without a licence would be an offence under s. 20 of the Indian Telegraph Act, 1885 (13of1885), hereinafter called the Act. The respondent is a businessman, having a shop in the city of Patna. In November, 1955 an Inspector of Wireless Telegraph visited his shop and found a radio set being played therein. As he was using the radio without a licence, he was prosecuted, under ss.

3 and 6 of the India Wireless TeJegraphy Act, 1933 ( 17 of 1933) and s. 20 of the Act. The Judicial Magistrate, Patna City, convicted the . respondent under the said sections and sentenced him only under s.-20 of the Act to pay a fine of Rs. 200jand in default to undergo simple imprisonment for three months. On appeal the ]earned Sessions Judge, Patna, confirmed both the conviction and sentence. On revision, the High Court a.t Patna set aside the conviction and sentence under s. 20 of the Act, but confirmed the conviction under ss~ 3 and 6 of the Indian Wireless Telegraphy Act, 1933 and .sentenced him to pay a fine of R.s. 100/- and in default to undergo simple imprisonment for one month. The State of Bihar has preferred the present appeal against the order of acquittal made by the High Court under s. 20 of the Act. The High Court set aside the conviction under s.

20 of the Act on the ground that the use of a wireless receiving set without a licence would not be an offence .under the said section having regard to the provisions of s. 4 of the Act. Mr. Varma, learned Counsel for the State, canvasses the correctness of that decisior. . It would be, convenient at the outset to read the relevant provisions of the Act as they stood before amendment by Act 15of1961. Section 3. ( 1) utelegraph'' means an 1 196Z .l;tate of Biha,. !ti angal Sao SubbaR!loJ. J96Z State of B1har Mango/ Sao SubQa Rao J. electric, galvanic or magnetic telegraph, and includes appliances and apparatus for making, transmitting or receiving telegraphic, telephonic or other communications by means of electricity, galvanism or magnetism. Section 4. (I) Within India, the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:

Provided that the Central Government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any pa.rt of India. Provided further that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit, the establishment, maintenance and working. of wireless telegraphs on ships within Indian territorial waters and on aircrafts within or above India, or Indian territorial waters, and of telegraphs other than wireless telegraphs within any part of India. Section 20. ( l)

If any person establishes, maintains or works a telegraph within India in contravention of the provisions of section 4 or otherwise than as permitted by rule made under that section, he shall be punishe<l, if the telegraph is a wireless telegraph with impriPonment which may' extend to three years, or with fine, or with both, and, in any other case, with a fine which may extend to one thousand rupees. I S.C.R. Under the said section, if a person establishes, maintains or works a telegraph without a licence in contravention of the provisions of a. 4, he would be commit.ting an offence punishable thereunder. The first questiou is whether a radio receiving set is a "telegraph" within the meaniug uf the <lefinition given in the Act. This Court had an occ~1sion to consider the scope of the said ddi11ition in the context of a Post and Telegraph Wireless Station, which was receiving communications from rlifFerent cities of the country, in Senior Electric Inspector v. Laxminarayan Chopra ( 1 ).

After quoting the provisions of s. 3 { 1) of the Act, this Court proeeeded to observe: "The Telegraph 'Wireless Receiving Station clearly comt•s within the definition of "telegraph" in the 'felegraph Act. The Telegraph Act was passed in 1885. ''Telegrnph" then included "a.n electric, ·galvanic, fir mag·· netic telegraph and appliances and apparatus ...... for telegraphic, telephonic or other communications by means of electricity, galvanism or magnetism". At that time Wireless telegraphy or radio had not been developed. In the year 1914, s.~>{1) of the said Act was ·amended and ihe following words were inserted after the words "appa.ratus for": "making, transmitting or receiving". With the result that, after the amendment, reoeiviug of communications by means of electricity was included in the definition. A wireless receiving station certainly r~ceives communications by means of electricity and therefore, it is ''telegraph" within the meaning of the said definition.

If a telegraph wireless receiving station is a telegraph as defined in s. 3( 1) of the Act, a radio set receiving communications should equally be a (1) A.J.R, l96Z ::;.C.159, 161. J!iG2 State of Bil. Ma11gal Sao Sub ha ll ao .; '' i,t Stole oj Bihar Mang<Jl Sao Subba lfao -I. SUPREME' COURT REPORTS [1963] telegraph within the meaning of the said section; for a radio set receives communications. by means of electricity. Wireless transmitter transmits sound as electro· magnetic waves and the said waves are detected and received by the receiving apparatus. We, therefore, hold that a receiving 8et is a telegraph within the meaning of the Act. The next question is whether the respcndent ''stablihhed, maintained or worked a telegraph with· in the tcrritori<'s of India in contravc·ntion of the provisions of s. 4. Section 4(1) consists of a main part an<l two provisos.

The main part of the section conf1 rs an exclusive privilege on the Central Government of establishing, maintaining and working telegraphs. The second proviso enables the Central Government to make rules to permit the est,1bliRhment, maintenance and working of wireless telegraphs on ~hips and aircrafts within a specified area or of telegraphs other than wireless telegraph within any part of India. The first proviso confers a power on the Central Government to grant licence to establish, maintain or work a telegraph within any part of India. There is difference in the phraseology used in the main part and the second proviso and that used in the first proviso. While in the main part and the second proviso' the conjunction "and" is placed between "maintaining" and "working", in the first proviso the disjunctive "or" is used.

It is not necessary to express our view whether in the main part and the second proviso the three words "establishing'', "maintaining" and "working" can be read disjunctively, for we are only concerned with the first proviso which expressly made them disjunctive. Under s. 20 of the Act also the disjunctive "or" is used between "maintains" and "works". It is, therefore, clear that under the .first proviso to s. 4 the Central Government may grant a licence to a person for establishing, maintaining and working a telegraph or in respect of any of them ; and if a person either establishes, maintains or 1 S.C.R. SUPREME COUAT REPOltTS 153 works a telegraph witllout a licence or in 'contravention of the terms of licence, he would be committing an offence under 8 • .20 of the Act. It is suggested that neither of the three terms would be appropriate for keeping a radio set or using it.

Learned counsel for the appellant argues that keeping or using a radio set would be maintaining or working a radio within the meaning of that section. In the Shorter Oxford English Dictionary the following me8!ning, among others, is given to the word ''maintain'' ; "to keep in being ;-to preserve unimpaired; to pay or furnish the means of keeping up of ; to keep supplied or equipped ; to keep in repair. A person who has a radio set for the purpose of using it must necessarily k.eep it in good condition and bear the expenditure for so keeping it and for repairing it, if it goes w~ong. He can, therefore, appropriately be said to maintain it within the meaining of t~e section. The same dictionary gives various meaning to the verb "work". The following are some of them : "to bestow labour or effort upon" ; ''to manipulate so as to bring it into the ·required condition" ; "to operate upon so as to get 'into some state or convert into something else" ;

"to bring or get into some condition by labour or exertion". If a person tunes a radio, he can properly be said to operate upon it or manipulate it for the purpose of receiving the said communications. Such a person works on the radio. We, therefore, hold that a person in possession of a radio for use maintains as well as works it. In this case it has been established that when the Inspector visited the shop of the respondent, the latter was using the radio and therefore was working it. Reliance was placed by the High Court on a judgment of the Madras High Court in In Re Pandian (1), wherein Pandrang Row, J., appears to (1) A.I.R. 1938 Mad. 821. St:Jte of Bihu Mangal Sao Subba Rao J. Stt. te of !Jih'lr 111 ang9l Sao Subb,, Rao J. accept the contention that the use of a wireless set without a licence is not an offence under s. 20 of the Act. The learned Judge observed :

"It i~, to say the least, extremely doubtful whet her the use of a wireless receiving set without a licence would amount to an offence under s. 20, Telegraph Act, which in view of s. 4 of that Act could not have been intended to include wireless receiving sets used ordinarily to receive broadcast programmes." The learned Judge has not expressed a final opinion on the construction of the section. Presumably, he was of opinion that s. 4 applies o:r.oly to a telephone established, maintained and worked by Government or with its permission. With great respeet, the learned Judge has omitted to notice the first proviso to s. 4 of the Act which takes in a licence of a telegraph for one or other of the three purposes mentioned therein. In the result, we hold that as the respondent used the radio without a licence, he committed an offence under s. 20 of the Act. We, therefore, convict him under s. 20 of the Act also.

But in the circumstances of this case, we think that no separate sentence is called for. The sentence already imposed under ss. 3 and 6 of the Indian Wireless Telegraphy Act, I 933, is sufficient. In the result, the order of the High Court is modified to the ext{lnt indicated.