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http://timesofindia.indiatimes.com/india/Judge-ignores-key-ruling-in-Roy-sedition-case-/articleshow/7045710.cms

Judge ignores key ruling in Roy sedition case
Manoj Mitta, TNN, Dec 5, 2010,

NEW DELHI: While ordering a sedition case against writer Arundhati
Roy, magistrate Navita Kumari quoted four judgments from the Supreme
Court and one from the Delhi high court on the general procedure for
dealing with a complaint of any cognizable offence. Yet, Kumari's
12-page order steered clear of one that most specifically applied to
the case: the SC judgment laying down the law on sedition.

The magistrate's failure to take into account the landmark judgment of
1962, in Kedar Nath Singh vs State of Bihar, sheds light on the
circumstances in which the sedition case was registered last week
despite home minister P Chidambaram's clarification that no such
action could be taken against Roy in keeping with " the letter and
spirit of the law".

In a setback to free speech, Kumari ignored the Kedar Nath verdict
although the substance of it had been brought to her notice by Delhi
Police in their status report stating that the " essential
ingredients" of sedition under Section 124A of the Indian Penal Code
were "missing" in the speeches cited by complainant Sushil Pandit, an
advertising professional who worked with BJP.

Given that this colonial provision had been notoriously misused
against freedom fighters like Tilak and Gandhi, a five-judge SC bench
ruled in the Kedar Nath case that the spreading of disaffection, "
however strongly worded" , would not any longer constitute sedition
unless the accused had also incited violence. The apex court read this
requirement of incitement into the sedition provision as it would
otherwise be in derogation of the free speech guaranteed by the
Constitution.

Accordingly, while rejecting the complaint against Roy and others for
speaking in favour of azadi at a meeting, the police pointed out that
the offence of sedition was made out only when the speeches in
question had a tendency to create public disorder or had in fact
triggered a law and order problem.

Since this " well settled proposition of law" cited by the police was
binding on all the courts, the magistrate should have checked the CD
of the speeches to see if any of the persons named in the complaint
had incited violence. Yet, without arriving at any such finding,
Kumari said: " After giving my thoughtful consideration to the
submissions made and the material on record, I have come to the
conclusion that the complaint clearly discloses commission of
cognizable offences."