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Manohar Damodar Patil and anr. Vs. the Government of Bombay - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 1187 of 1949
Judge
Reported inAIR1950Bom210; (1950)52BOMLR275
ActsPress (Emergency Powers) Act, 1931 - Sections 3(3), 4 and 4(1)
AppellantManohar Damodar Patil and anr.
RespondentThe Government of Bombay
Advocates:C.K. Daphtary, Adv. General and ;B.G. Thakor, Addl. Asst. Government Pleader;L.M. Jhaveri and ;J.B. Desai, Advs.
Excerpt:
.....save itself by various devices to which it was resorting and it points out that the victory of the chinese masses has demonstrated how these machinations could be defeated. it further emphasises the services rendered by the communist party by pointing out that the communist party carried on a struggle against the most powerful imperialism in the world, namely, american imperialism, which was backed by dollars, and yet that imperialism was routed by the strength of the community party. that chaing kai shek was all-powerful, and he was prepared to commit any atrocity in order to remain in power; it is well known that our own government--in this province and in other provinces, and the government of india--are pledged to the abolition of zamindari. in order that we may come to that..........save itself by various devices to which it was resorting and it points out that the victory of the chinese masses has demonstrated how these machinations could be defeated. then it deals with the case of chiang kai shek and reminds its readers how chiang kai shek inflicted indescribable tyranny upon the chinese people for twenty years, how the people of china were mortgaged first to the japanese fascists and then to the american imperialists. then it recounts the services rendered to china by the communist party, and it tells its readers that it was under the banner of the communist party that the masses of the chinese people faced atrocities, raised the banner of revolution over hills and dales in north china, and how ultimately they drove out chiang kai shek within a period of two.....
Judgment:

Chagla, C.J.

1. These are two applications under Section 23, Press (Emergency Powers) Act, 1931, by the keeper of the Jai Gujarat Printing Press and the printer and publisher of the newspaper Mashal. The keeper made a declaration on 17th June 1949, and he was ordered to deposit a sum of Rs. 1,000 which he deposited on 24th June 1949. Government issued a notice on 24th November 1949, purporting to be under Sub-section (3) of Section 3 of this Act, calling upon him to deposit with the Chief Presidency Magistrate, Bombay, the sum of Rs. 3,000 on or before 6th December 1949. This notice was in connection with an article that appeared in a paper called the Mashal, dated 24th September 1949. This paper is published both in Gujarati and in Marathi. It would be convenient to deal first with the application of the keeper, because, in our opinion, the technical objection raised by Mr. Jhaveri must prevail.

2. Now, when a deposit is made and a security is given, the law permits the Provincial Government under Section 4 to forfeit the deposit, and in this case, although the deposit was made, Government have not forfeited the deposit but have purportad to act under Section 3, Sub-section (3). Now, under that section, Government can only act when security has not been required under the provisions of the Act, or, having been required, has been refunded under Sub-section (2) of Section 3 of the Act; and the provision of Sub-section (2) is that, when security which has been required has been deposited and for a period of three months no order is made by Government forfeiting that security, then the security shall, on an application by the keeper of the press be refunded . Now, in this case, although three months had expired, no application was made by the keeper for the refund of the security, and therefore the amount deposited continued to remain as security with Government. The Advocate General has contended that, after the period of three months, the security becomes refundable to the keeper, and therefore it is not open to Government to forfeit the security but it must act under Sub-section (3) of Section 3. In our opinion, the Legislature has not provided that the powers of Government under Section 3 can be exercised when the security required has become liable to be refunded. The language used by the Legislature is 'having been required has been refunded under Sub-section (2).' Therefore, there must be an application by the keeper and actual refund by Government before Government can act under Section 3, Sub-section (3). Till such an eventuality happens, the deposit may continue to remain as security with Government, and Government can forfeit the security. As Government have not forfeited the security, and the sum of Rs. 1,000 still continues to be with Government, an order under Section 3, Sub-section (3), is not justified. Therefore, apart from the question of merits, with which I will now deal, the application of the keeper must succeed.

3. The printer and publisher of the paper Mashal also made a declaration and made a deposit of RS. 1,000 for each of the Gujarati and the Marathi papers, and the sum of RS. 2,000, was deposited on 1st September 1949, a declaration having been made on 26th August 1949, under Section 5, Press and Registration of Books Act, 1867. In the case of the printer and publisher also, a notice was served by Government on 24th November 1949, forfeiting the deposits of Rs. 1,000 each in respect of each of the papers, inasmuch as, according to Government, the issues of the two papers, of 24th September 1949, contained words described in Clause (d) and (f) of Sub-section (l) of Section (4), Press (Emergency Powers) Act. Therefore, the question that we have to consider is whether the article which is the offending article according to Government, falls within either Clause (d) or Clause (f) of Sub-section (1) of Section 4.

4. Now, turning to the article, it is a salutation , as the very headline denotes, to the new Republic of the Chinese people and it points out that Mao Tse Tung's announcement of the establishment of a new democratic State of the Chinese people is a great incident in the history of Asia. It emphasises the fact that the war of liberation against foreign imperialists and indigenous capitalists has secured a victory of a decisive nature just as a victory has been scored by the people of India. It also says that this victory marks an important stage in the history of the fight, carried on by the masses for democracy, peace and socialism. It tells its readers that by driving out of China the American imperialists and their agents, who had been seeking to spread the conflagration of war all over the world, the masses of China had dealt a smashing blow to the machinations of the warmongers. It then refers to the attempts made by capitalism to save itself by various devices to which it was resorting and it points out that the victory of the Chinese masses has demonstrated how these machinations could be defeated. Then it deals with the case of Chiang Kai Shek and reminds its readers how Chiang Kai Shek inflicted indescribable tyranny upon the Chinese people for twenty years, how the people of China were mortgaged first to the Japanese fascists and then to the American imperialists. Then it recounts the services rendered to China by the Communist Party, and it tells its readers that it was under the banner of the Communist Party that the masses of the Chinese people faced atrocities, raised the banner of revolution over hills and dales in North China, and how ultimately they drove out Chiang Kai Shek within a period of two years. It further emphasises the services rendered by the Communist Party by pointing out that the Communist Party carried on a struggle against the most powerful imperialism in the world, namely, American imperialism, which was backed by dollars, and yet that imperialism was routed by the strength of the Community Party. It emphasises the philosophy of Marxism-Leninism by stating that the great victory of China was due to the guidance of the Communist Party which was inspired by that philosophy. It praises the Chinese Communist Army by pointing out that wherever the liberating army advanced zamindari was eradicated, land went to the tillers, and administration came into the hands of workers and the control of production also came into the hands of workers. It also assigns one further reason why the Chinese masses succeeded, and that was because the Soviet Republic backed the Chinese masses. The writer considers the Chinese victory as a new inspiration to the fight of the masses in Asia and looks upon it as a sign of the tolling of the knell for imperialism. It draws one further moral from the Chinese victory, and that is that the working class and the toiling masses could get hold of power only through revolution. It throws contempt upon socialist leaders by stating that, if the Chinese people had attempted to succeed by means of elections it would have been possible for Chiang Kai Shek to crush the masses by reason of his own brute force and by the power placed at the disposal of Chiang by the American imperialists. The writer expresses his sense of appreciation that the Chinese masses did not entertain misleading and ridiculous idea that bullets could be met by voting papers, and that Chinese fascism could be fought through the ballot-box. It then states that the only reply to the fascist regime of the monied classes consists in the revolutionary strength of the masses. The article concludes by stating that the Indian masses offer salutation to the new democratic regime in China and take a vow to create a new India of the toiling masses by driving out the Anglo-American imperialists and their agents from our country also.

5. Now, we must look at this article as a whole, and it would be wrong to submit it to a microscopic scrutiny. The theme of the article, in our opinion, is fairly clear: it is an article written by a Communist and intended for Communist propaganda. It points out the virtues of the Communist Party and of the Communist philosophy, and tells its readers how the Communist Party helped the Chinese people to achieve freedom and to defeat American Imperialism and fascism practised by Chiang Kai Shek. It is important to remember that the Communist Party has not been declared an unlawful association in our country. It is also important to note that there is nothing in law to prevent the Communists from carrying on propaganda with regard to their own philosophy and to extol its own ideology as against the Socialist or Congress ideologies. Therefore, to the extent that this article is part of a political controversy intended to tell its readers how the Communist Party is superior in political virtues to other parties, the article does not purport to say anything which is in contravention of the law. The article also constitutes, as it were, a historical thesis, and the thesis it has set out to prove is that democratic methods can never succeed against fascism; that you cannot fight fascism, which is capable of using force and which could be guilty of atrocities, by means of the vote or by means of the ballot-box. The writer points out that in China was enthroned Chiang Kai Shek by means of American dollars and with the help of American imperialism; that Chaing Kai Shek was all-powerful, and he was prepared to commit any atrocity in order to remain in power; that he was prepared to use brute force in order to suppress the Chinese people; and that it would have been futile and foolish for the Chinese people to have fought his tyranny by means of constitutional methods And, therefore, according to the writer, the only way in which fascism and imperialism can be dealt with is by a violent revolution.

6. The article, to a large extent, wishes the attention of its readers to be focussed upon what happened in China. It is significant that no parallel is attempted to be drawn betweenthe conditions in China and the conditions in India. As a matter of fact, as I have pointed out, in the earlier part of the article, India is mentioned as having already scored a victory against imperialism, and no when is it suggested that to-day there is any power, which can be compared to Chiang Kai Shek, which is enthroned in this country, and which is backed by American or any other imperialism. There is no suggestion that the Government of India is a fascist organisation which deserves to be fought as Chiang Kai Shek was fought in China. Tribute is paid to the Communist Army for eradicating the zamindari system and for giving the land back to the tillers. It is well known that our own Government--in this Province and in other Provinces, and the Government of India--are pledged to the abolition of zamindari. and to the return of the land to the tillers. Therefore, far from there being any parallel between what was happening in China and what is happening in India, there is a clear contrast between what the policy of the Government was in China and what the policy of the Government is in India. Therefore, it cannot be said of this article that it attempted or tended directly or indirectly to bring into hatred or contempt the Government established by law. In order that we may come to that conclusion, we must be satisfied that the writer of this article wanted the toiling masses in India to do to the Government of India what the toiling masses in China did to Chiang Kai Shek, and such an inference would only be possible if we read in this article a suggestion that the Government of India could be compared to Chiang Kai Shek, namely, that the Government of India was guilty of atrocities, that it was going in for fascism, and that it was supported by American dollars.

7. The Advocate-General has not pressed us to hold that this article falls under Section 4 (1) (d). But he has contended that, reading the article as a whole, it is clear that it does fall under Sub-clause (f). And in order that it should fall under Sub-clause (f), we must be satisfied that it tends to incite any person to interfere with the administration of the law or with the maintenance of law and order. The Advocate-General concedes that such an inference would only be possible provided we are satisfied that there is to be found in this article any incitement to violence by one class against another. The suggestion made by the Advocate-General is that what the writer of the article has done is to set out before its readers the example of China, and then to end up by saying that the people in India should do likewise against Anglo-American Imperialism and their agents, and, in saying so, the writer has asked his readers to pursue the path of violence, as the Chinese people did, in order that Anglo-American Imperialism should be driven out of this country. We are unable to take this view of the article. It is true that the article does state that the working class and the toiling masses can get hold of power through the path of revolution alone. But the expression 'revolution' is used here, as is clear from the context, in contra-distinction to reformism or gradual evolution. The revolution preached is not necessarily a violent revolution. It is a matter of history now that our own country achieved a revolution--and a very important revolution--by non-violent methods, and it cannot be suggested that the only revolution that history knows of is necessarily a violent revolution. It is open to a writer to suggest that the ordinary evolutionary method is either too slow or not adequate to achieve a particular purpose and that purpose can only be achieved by a revolution. But by advocating revolution, it does not necessarily follow that he is advocating a type of revolution which would come within the mischief of Section 4 (i) (f). As the writer has not stated in this article that the toiling masses should take up arms and fight for their rights and thus achieve a revolution we refuse to read this expression as inciting the masses to violent methods.

8. It is then urged by the Advocate-General that, when the article concludes by asking the toiling masses to drive out Anglo-American Imperialism and their agents from our country, it is a clear incitement to violence to the masses against a certain section in India. Here again, it is not necessary to read the expression 'driving out' in its literal sense. What the writer is advocating is the elimination of Anglo-American Imperialist influence. He objects to any influence being exercised in our country by Anglo-American Imperialists and their agents, and he asks the masses to pledge themselves that that influence which is all over the country shall be eradicated from the country. We do not think that it is wrong or contrary to law for any editor or any propagandist to draw the attention of his readers to the existence in this country of a bad or evil influence and to ask the readers to eliminate that influence. Whether the writer is right or wrong is another matter altogether, but in advocating a particular cause and by using strong language in support of that cause the writer does not necessarily come within the mischief of the Indian Press (Emergency Powers) Act.

9. We should also like to point out that in a democracy it is essential that the masses should be politically educated, and they are entitled to know the pros and cons of every political system and every political ideology. And so long as it is legal for a particular party to place its views and its principles before the people, it would be improper for the Court to interfere with that right not only of the party but also of the people of the country. And, as ] said before, we do not read this article as much more than a very strong piece of propaganda in favour of the Communist Party. We should also like to point out that, under our new Constitution, the freedom of the Press has been safeguarded. The Act that we are considering is an emergency Act. The first principle to which we must give effect is that the Press is free--entirely free--to propagate any views, provided that those views are not prohibited or are not likely to lead to any breach of the peace. Starting with that first principle, we have then to consider as to whether the particular offending article comes strictly within the ambit of the Press (Emergency Powers) Act. Applying that principle, we are of the opinion that the article does not offend the provisions of either Sub-clause (d) or Sub-clause (f). of Section 4 (1), and therefore, the applicants are entitled to succeed.

10. Therefore, the order made by Government, both against the keeper and against the printer and publisher, which has been the subject matter of Applications Nos. 1187 and 1188, will be set aside.

11. Government will pay the costs of both these applications.


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