State of Bihar v. Mangal Sao

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. SUPREME COURT REPORTS 149 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 pro­ secuted, 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, convic­ ted the . respondent under the said sections and sentenced him only under s.-20 of the Act to pay a fine of Rs. 200j- and 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 imprison­ ment 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 correct­ ness of that decisior. . It would be, convenient at the outset to read the relevant provisions of the Act as they stood be­ fore amendment by Act 15of1961. Section 3. ( 1) utelegraph'' means an 1 196Z .l;tate of Biha,. v. !ti angal Sao SubbaR!loJ. 150 J96Z State of B1har '· Mango/ Sao SubQa Rao J. SUPREME COURT REPORTS [l9G3J electric, galvanic or magnetic telegraph, and includes appliances and apparatus for making, transmitting or receiving telegraphic, tele­ phonic 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 tele­ graphs: Provided that the Central Government may grant a licence, on such conditions and in con­ sideration 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 condi­ tions as it thinks fit, the establishment, main­ tenance and working. (a) of wireless telegraphs on ships within Indian territorial waters and on aircrafts within or above India, or Indian territorial waters, and (b} 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. SUPREME COURT REPORTS 151 Under the said section, if a person establishes, main­ tains 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 pro­ visions 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 Tele­ graph 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 com­ munications 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, reoeiv­ iug of communications by means of electricity was included in the definition. A wireless receiving station certainly r~ceives communi­ cations by means of electricity and therefore, it is ''telegraph" within the meaning of the said definition. If a telegraph wireless receiving station is a tele­ graph 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. v. Ma11gal Sao Sub ha ll ao .; '' i,t Stole oj Bihar v. Mang<Jl Sao Subba lfao -I. 152 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 appara­ tus. 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 work­ ing 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 phraseo­ logy 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 "work­ ing", 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 disjunc­ tive "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 'contra­ vention 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 maintain­ ing or working a radio within the meaning of that section. In the Shorter Oxford English Dictio­ nary 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 con­ vert 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 receiv­ ing 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. 1962 St:Jte of Bihu ..... Mangal Sao Subba Rao J. 1902 Stt. te of !Jih'lr v, 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 doubt­ ful 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 ordina­ rily 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 purpo­ ses 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 modi­ fied to the ext{lnt indicated. ---·-