Single-judge bench of Gujarat High Court held as follows:
From Para 35,
35. From the contents of the news items published in the Times of India on 30th and 31st May, 2008 in the context of which the above referred two first information reports have been lodged, it is apparent that there is nothing therein which would cause disaffection amongst the members of the police officers against the State Government established by law. The contention that the comments regarding the State Government having appointed a person with a criminal background like the second respondent would induce in the minds of the subordinate officers an impression that they should not obey him and thus, induce disloyalty, does not merit acceptance inasmuch as what is stated in the articles is only an expression of an opinion as regards the act of the Government in appointing the second respondent as Commissioner of Police. If the contention of the second respondent were to be accepted no adverse comment could be made as regards the appointment/promotion of any officer belonging to the police force, which cannot be the intention of the legislature while enacting the said provision. The test for the invoking the said provision would be whether the news items in question has the propensity of evoking amongst the members of the police force feelings of disaffection towards the Government established by law in India or the effect of inducing any member of the police force to withhold his service or to commit a breach of discipline. Besides, the news item has to be read from the stand point of a reasonable man. On a bare reading of the articles in question from the armchair of a reasonable person, the same can, in no manner, be said to have the effect of causing disaffection towards the Government nor can the same be said to have the likelihood of inducing any member of the police force to withhold the service or to commit a breach of discipline. A mere comment on the wisdom of the State Government in appointing the second respondent as Commissioner of Police in the context of his background, can in no manner induce a prudent member of the police force to withhold his service or commit a breach of discipline, nor can such comment have the effect of creating disaffection against the Government. The provisions of section 3 of the said Act would, therefore, not be attracted in the facts of the present cases.
And then in Para 36,
Bharat Desai Editor, Times of India and Anr Vs State of Gujarat on 18 Apr 2012
36. Another aspect of the matter is that a perusal of the allegations made in the first information reports shows that the contents of the sections invoked against the applicants have been mentioned therein so as to make out an offence under section 124A IPC and section 3 of the Police (Incitement to Disaffection) Act, 1922. In this regard it may be apposite to refer to the decision of the Supreme Court in Vijaya Rao v. State of Rajasthan and another (supra) wherein it has been held that mere reference to the expressions mentioned in the provision would not disclose commission of an offence, when the ingredients constituting the offence in question are conspicuously lacking. In the facts of the present case, merely
because in the first information reports, it has been stated that the articles in question have been published with the intention to cause hatred against senior police officers of the State Government established by law and that the same have been published as an attempt to cause contempt and hatred against the State Government, the same would not fall within the ambit of section 124A IPC or section 3 of the Police (Incitement to Disaffection) Act, 1922, when the ingredients for constitution of an offence under section 124A IPC and section 3 of the said Act are woefully lacking.