1. This is an application by Vaman Sakharam Khare, a pleader of the District Court at Nasik, to set aside the order of the District Magistrate of Nasik, made under Section 118 of the Code of Criminal Procedure, directing the petitioner to execute a personal recognizance in Rs. 2,000 to be of good behaviour for one year with two substantial and respectable sureties for Rs. 1,000 each. The order has been made as a result of proceedings taken against the petitioner under Chapter VIII of the Code on information that he had been disseminating seditious matter by means of speeches. The speeches charged against the petitioner as seditious are six in number and are found by the District Magistrate to have been delivered on different occasions between the 5th of February 1907 and the 5th of September 1908. The last speech was delivered on the latter date. The information was filed before the District Magistrate by the Police under Section 108 of the Code on the 10th of December 1908. Having regard to the date of the last speech and the date of the information, it is contended by the learned pleader for the petitioner that the case was clearly not one falling within the scope and object of Section 108. It is argued that the provisions of Chapter VIII in which that section occurs are of a purely preventive character; and that the section itself is so worded as to make the intention of the legislature to have been that the person to be dealt with under the section must be one engaged in the dissemination of sedition at or about the time when the information is filed. Here, it is urged, the petitioner could not be regarded as falling within that category on the 10th of December 1908, when the information was filed, because the petitioner's last speech had been delivered on the 5th of September 1908; after that there had been correspondence between him and the District Magistrate, in the course of which he (the petitioner) had assured the Magistrate that he was not disloyal and even expressed his willingness to give an undertaking that he would for one year make no speeches on political subjects from public platforms.
2. The provisions of Chapter VIII of the Code are, no doubt, preventive in their scope and object; and are obviously aimed at persons who are a danger to the public by reason of the commission by them of certain offences. The test under Section 108 is whether the person proceeded against has been dissem-nating seditious matter and whether there is any fear of a repetition of the offence. In each case that is a question of fact which must be determined with reference to the antecedents of the person and other surrounding circumstances. In the present case within about eighteen months the petitioner before us had delivered six speeches; the interval between the last speech and the date of the information was not long; it was only three months and the fact that there had been no repetition of the offence after the 5th of September 1908 up to the date of the information is accounted for by the notice given by the District Collector in the meantime that the petitioner's mokasa amul would be declared forfeited on the ground of his disloyalty.
3. It appears from the record of the District Magistrate's proceeding that before the commencement of the trial the petitioner put in an application, protesting that he had never made any speeches for the purpose of disseminating sedition' but to remove all room for misunderstanding' expressing his readiness to give an undertaking that he would deliver no speeches on political subjects from public platforms for a period of one year, in case the present proceeding' were 'dropped.' The Magistrate declined to accept any such undertaking. We think he was right. Whether such an undertaking would have been legal and valid is doubtful. The case before the Magistrate was criminal and he had to conform to the provisions of the law strictly before passing an order restricting the ordinary rights of a subject of the Crown.
4. It was urged before us that the petitioner's undertaking ought to have been accepted because he was entitled to a locus penitentiae. Assuming he was (and it is only an assumption), the terms on which the undertaking was offered were not of penitence. No offence was admitted.
5. Passing now to the merits of the case, it is complained that the sole evidence against the petitioner is of Police reports, and that these were not admissible. This objection was but faintly pressed and is clearly untenable. The Police officers who wrote those reports have been examined as witnesses for the Crown; the reports, to the correctness of which they have sworn, were written goon after they had heard the speeches with the help of notes taken down at the meetings when those speeches had been delivered. The reports were admissible for the purpose of refreshing the memory of the witnesses who had made them; and they have been admitted and used for that purpose only.
6. But it was said that these reports should not be relied upon because they are not verbatim and the whole speeches are not before the Court. The witnesses, however, have given on oath the words or expressions charged as seditious and the context in which they were uttered. The reports themselves raise the inference of having been made without any desire to misrepresent, because one or two of the speeches reported are free from seditious matter. It was open to the petitioner to shake those witnesses in cross-examination by pointing out that either, the words were not uttered or that the context was totally different. Nothing of that kind was attempted in cross-examination; and no evidence was led to contradict the Crown witnesses and prove the substantial inaccuracy of their version. It is no excuse that the petitioner could do neither of these, because he could not be expected to remember what he had said in speeches delivered months ago and to cite witnesses who had heard him deliver those speeches and who remembered them. In his judgment the District Magistrate has pointed out the expressions which mark the seditious character of the speeches. The speech, Exhibit--PJ, characterises the rulers, both in words and effect, as robbers, who have come here to deceive the people and whose object is in the long run, if not soon, to cover the country with 'whites' and make over to them the lands held by the 'blacks' now. Exhibit-A represents the whites as people whose forms are 'white' but in whom there is poison within.' And then it winds up with the threat: 'We must fight with him who troubles.' And what is worse, the speaker appeals to the younger generation as his hope, inviting them in effect to fight. The sting of the other speeches is equally clear. The words and the substance both breathe hatred to British rule. The speaker's intention is not to correct but to root out the British Government as one composed of irreligious robbers, bent on ruining the people of the country and confiscating their lands with the object of making them over to the white people'. If the words reported were uttered, it is impossible Me to make out in what innocent context they could have been used; and the petitioner has not ventured to say that they were not uttered. His denial before the Magistrate has been that the reports are not full, and are inaccurate a vague plea. We agree with the District Magistrate in the conclusion at which he has arrived and uphold his order as one fully justified by the facts of the case. The rule is discharged.