1. Gentlemen of the Jury, I am afraid, gentlemen, your patience has been sorely taxed during the eight days which this trial has taken. I do not propose to tax your patience at any great length in the case because the case on both the sides has been very clearly and fully put before you. I now ask your earnest attention to what I am going to say and before I say anything else I think it is right to realise that it would be the merest and the idlest of pretences to say that you have not heard of this case before or have not heard of the accused before. I have no doubt that this case has been discussed before this by your friends, and by yourselves and I think the accused must often have been spoken of in your hearing by your friends and others. But need I tell you-I feel that I need not tell you-that it is your duty to confine the consideration of the questions that are submitted to ' you in this case entirely to what you have heard and read within the four corners of this room. For once, gentlemen, dissociate your mind from everything that you may have heard about the accused or about this case or about this prosecution. I have no doubt you will set aside from your mind and will not allow any passion or prejudice or any outside information to influence you in the least in coming to a decision in this case. I have heard with great satisfaction that the accused trusts in you and trusts in your judgment and has appealed to you in a long and lengthy address. I ask you, gentlemen, to regard him standing before you merely as one of your fellow subjects. Give sympathetic consideration to all that he has urged and after having done so come to a verdict without fear or favour. One thing also I would like to guard you against and that is not to give any undue preference or undue consideration to the fact that the Crown prosecutes. There is nothing in that fact either to prejudice you against the accused or against the prosecution. The Crown is the legitimate prosecutor in all cases that come before the High Court Sessions. In this very Sessions the Crown was the prosecutor before me in a murder case and the Crown was the prosecutor in an old offender's case who had stolen Rs. 2. So that there is nothing that ought to influence you or weigh with you in the fact that the Crown prosecutes. It is the duty of the Crown to prosecute when its responsible officers consider that the law is transgressed. All that the Crown does is to come before you and say 'This is the law. This is the act of the accused by which we say he has transgressed the law.' And then it leaves the Judge and the Jury to decide whether the law is transgressed and whether there has been a breach of the law or not. The offences charged against the accused are offences of a public or political nature ; and in order to guard against frivolous or vexatious prosecutions started by irresponsible parties under this section the law guards and protects journalists, publicists, and public speakers from such frivolous or vexatious prosecutions by providing that no such prosecution shall be undertaken except with the sanction of Government. That is the only reason why sanction is required for a prosecution to be started under these two sections. Gentlemen we have heard the accused state that 'lower officials consider that a sanction is a mandate.' I don't think he intended this to be a suggestion applicable to this Court or to you. It would be most improper for any one to suggest that there is any body anywhere who can send a mandate to you or to me which we are bound to obey. We are here to perform our respective duties and the only mandate that I shall obey and the only mandate that you are bound to obey is the mandate of our conscience. My one desire, gentlemen, has been to give the accused a perfectly fair trial. He has entered into every kind of discussion from every point of view and it is possible that there may be somethings that he has said that may not have been permitted, somethings that he has urged may not have been relevant; but nevertheless we lose nothing by giving the accused person absolute freedom to unburden his mind before you and to give you from his point of view the explanation of his conduct and his writings and of the sentiments to which he has given publication.
2. Gentlemen, before I proceed I think it would be as well for you to have a perfectly clear idea of what your duties are and what my duties are. The duties of a Judge are defined under the Criminal Procedure Code. I will not take you through all those duties but some of the things he has to do are to decide all questions of law, all questions of admissibility and relevancy of the evidence that is tendered and he has to decide whether any particular question is for his decision or for the decision of the Jury and upon this point his decision shall be binding upon the Jury. So that it is for the Judge to decide what are the points for his decision andwhat are the points for the jury's decision, and the Judge's decision is binding upon the jury. Then again if the Judge thinks proper he can in the course of his summing up express his opinion on any question of fact or any question of mixed law and fact. Then comes, gentlemen, the duty of the jury defined in the next section and the duty of the jury is to decide which view of facts is true and then to return the verdict which under such view ought according to the directions of the Judge to be returned. You have heard the view of the prosecution and you have heard the view of the accused. Both have addressed you fully, and I am entitled to express an opinion-I am entitled to give you directions ; but, gentlemen, the accused has expressed his confidence in you and I am going to add to your responsibilities by leaving the consideration of the whole case entirely in your hands. From my point of view the case presents no difficulties. The law is there. It is a very well settled law now. During the last ten years cases have come before the Courts and those cases have been most carefully considered and every word in the sedition section, that required expounding has been the subject of legal discussion. I do not propose to give you any law that is not settled before. I do not propose to give you my own view of the law but I will give you the views of eminent judges who had the consideration of the law before them and you will be bound to follow those views. The learned Advocate General has read to you largely from the summing up of Mr. Justice Strachey. With a small slip which does not matter for our present purposes that summing up has got the approbation in that case of the Full Bench of our Court presided over by the late Sir Charles Farran and has got the approbation of the Privy Council. That statement of the law has been followed in other cases by other High Courts and has been referred to with approval. Quotations from that case have been largely read to you and therefore, gentlemen, I will not traverse over the same ground again. But before we proceed further you ought to have a clear idea of the three charges on which you are trying the accused. He is charged in the first instance under Section 124A with reference to the Article of 12th May 1908 which is Exhibit C in the case. That is the first charge: that is the charge of sedition : and that is the only charge so far as the first article is concerned. The next charge is again the charge of sedition with reference to the article of 9th June 1908 and the third charge is a charge under Section 153A with reference to the same article. So that you will remember, gentlemen, that there are three charges against the accused based on two articles which are before you and which are Exhibits C and D in the case. The sections of the Indian Penal Code have been read to you over and over again and I believe they are before you in print. Follow the wording of those sections and when you follow the wording of those sections you will find that a great many difficulties which are supposed to be difficulties or a great many considerations which have been urged by one side or the other will disappear. First of all you have to notice that Section 1-24A is intended to be a safe-guard and a check against any one either by speech or by writing or by visible means doing or attempting to do certain things and what are they He must not bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection against the Government established by law in British India. There is no question now that the Government established by law and referred to here is the British Government or the English Government, which rules over this country and a man must not excite or attempt to excite disaffection towards that Government or bring or attempt to bring that Government into hatred or contempt. Does 'contempt'' require definition Does 'hatred' require definition We are human beings. We all have our weaknesses and our passions and none of us can say that there was no time in our life when we had not felt hatred or contempt for somebody or something. As to the word disaffection which was the subject of much discussion the first explanation makes that clear. Disaffection is a peculiar word. You do not use the word disaffection when you are talking with one person or in connection with another person. A person does not bear disaffection towards another person but disaffection is always used more in the sense of being applied between the subject and the Ruler and the first Explanation leaves you in no difficulty. The expression disaffection includes 'disloyalty and all feelings of enmity' so that you will have to read 'or excites or attempts to excite disloyalty or feelings of enmity against Government'. It includes those. Then of course there are two other Explanations, which you must always keep before your mind. They are Explanations intended to protect criticism of Government measures, and of administrative and executive action of Government and they give perfect freedom to journalists, to publicists, to orators and public speakers,-perfect freedom to discuss the measures of Government, to discuss the administrative acts of Government, to disapprove of them, to attack them and to use forcible language if necessary and do every thing legitimate and honest in bringing before the public or in bringing before the Government the fact that their measures or their actions are disapproved by a section of the public or by that particular speaker or by that particular journalist. He is entitled to urge every reason he can. He is entitled to urge all this in forcible language and to use strong language in asserting such views with reference to those administrative or executive acts of Government. But, gentlemen, remember that no publicist, no journalist, no speaker has any right to attribute dishonest or immoral motives to Government, Freedom of the press, I have no doubt, is. a most valuable right. You would be as anxious to protect freedom of the press as I would be. You will give effect to all that the accused had urged in favour of freedom of the press. The law says, however, that that freedom of the press should not be used for the purpose of bringing or attempting to bring Government into hatred or contempt or exciting or inciting feelings of disloyalty or enmity towards that Government. Barring that, the liberty of the press must be protected. The press and public speakers are entitled to protection against any prosecution that may savour of persecution and every subject of the Crown is entitled to come before the jury and say, 'I have not transgressed the legitimate rights of a journalist,' It is for you, gentlemen, entirely to judge whether that statement is correct or not. Section 153A is again a simple section. You find that '' whoever promotes or attempts to promote feelings of enmity or hatred between different classes of Her Majesty's Subjects' shall be punished in a particular way. It only means that no subject of the Crown is entitled to write or say or do anything whereby the feelings of one class of His Majesty's subjects should be inflamed against another class of His Majesty's subjects. I take it, gentlemen, it is a salutary provision of the law for the purpose of preserving order and amity between the various subjects of the Crown.
3. Then turning from the sections I draw your attention shortly to two or three cases decided by the different High Courts in India with a view to show what is meant by those two sections. The first of the cases that I am referring to is the case referred to by the Advocate-General and also by the accused and known as the Bangobasi case ILR (1891) Cal. 35 tried by Sir Comer Petheram, the late Chief Justice of Bengal. In the course of his summing up he says: 'Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man's sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr. Jackson cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them'. The last sentence is the most important because that has been the settled law and that is 'though no disturbance is brought about by his Words or any feeling of disaffection, in fact produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling'. Further he says : 'The evidence of the intent can only be gathered from the articles. The ultimate object of the writer may be one thing, but if, in attaining that object, he uses as the means the exciting of disaffection against the Government then he would be guilty under Section 124A'. Then he gives directions to the jury, directions which I press upon your mind : 'You must not look to single sentences or isolated expressions) but take the articles as a whole, and give them a full, free and generous consideration as Lord Fitzgerald has said; and even allowing the accused the benefit of a doubt, you will have to say whether the articles are fair comments and merely expressions of disapprobation or whether they disclose an ''attempt to excite enmity against the Government'.
4. This, gentlemen, was the case decided in 1891. It was followed by a case in the Allahabad High Court in 1898 : Queen-Empress v. Amba Prasad ILR (1897) All. 55. That is a Judgment delivered by Sir John Edge and Messrs. Justices Blair and Burkitt. There Sir John Edge, after referring to Mr. Justice Strachey's summing up, goes on to say: 'In our opinion any one who, by any of the means referred to in Section 124A of the Indian Penal Code, excites or attempts to excite feelings of hatred, dislike, ill-will, enmity or hostility towards the Government established by law in British India, excites or attempts to excite, as the case may be, feelings of ' disaffection' as that term is used in Section 124A no matter how guardedly he may attempt to conceal his real object. It is obvious that feelings of hatred dislike, ill-will, enmity, or hostility towards the Government must be inconsistent with and incompatible with a disposition to render obedience to the lawful authority of the Government.' The learned Chief Justice goes on: 'The intention of the speaker, writer, or publisher may be inferred from the particular speech, article or letter, or it may be proved from that speech, article or letter considered in conjunction with what such speaker, writer or publisher has said, written or published on another or other occasions. Where it is ascertained that the intention of the speaker writer or publisher was to excite feelings of disaffection to the Government established by law in British India, it is immaterial whether or not the words spokenwritten or published could have the effect of exciting such feelings of disaffection and it is immaterial whether the words were true or were false'. Then, gentlemen, there were two other cases that came before Sir Lawrence Jenkins when he was presiding in the Sessions in 1900-Queen-Empress v. Luxman (1899)2 Bom. L.R. 286; Queen-Empress v. Vinayek (1899) 2 Bom. L.R. 304-and I will tax your patience by reading one or two passages from his summing up which clear up the position most completely and give you the idea of what the law of sedition is. He says: ' These, gentlemen, are the main provisions of the section and you will see, therefore, that the section is directed against those practices which are calculated to call into existence certain hostile feelings towards the Government as established by law. These hostile feelings are three in number. They are 'hatred', ' contempt', and 'disaffection.' That is to say, it is directed against those acts which may result in or aim at bringing the Government into hatred or contempt, exciting disaffection against the Government. Now the words 'hatred' and 'contempt' require no explanation : their meaning must be plain to you all. But there still remains the word 'disaffection,' which in the past has been the subject of much discussion and controversy : happily, however, you sitting here are free from the necessity of entering on this field of controversy, because the first explanation to the section indicates clearly to you what is meant by 'disaffection.' Then he reads the first explanation and says : 'Thus, the subject is entitled to criticise and comment upon all acts of the Government in all its departments, legislative, administrative or executive. But it is subject to this qualification. That those criticisms and comments must be within those limits to which I shall later allude, and that will be very important qualification for you to bear in mind in connection with all the arguments which have been addressed to you on behalf of the accused.' Then, gentlemen, you have the definition of the word attempt. Sir Lawrence Jenkins says : 'An attempt is an intentional preparatory action which fails in object-which so fails through circumstance independent of the person who seeks its accomplishment.' With reference to the word attempt, gentlemen, you have to take it in the ordinary meaning which attaches to the word attempt. A man is supposed to attempt something which would be the natural and reasonable consequences of his act. If he fails he does not fail because he did not attempt but he fails from other causes. Whether he fails or whether he succeeds the law says no attempt should be made to excite feelings of disaffection, contempt or hatred against Government. As to whether any particular act of an accused is an attempt or not it is for you to judge from his actions. There are the articles placed before you by the prosecution. The prosecution says that these articles amount to an attempt to excite feelings of contempt and hatred against Government. I leave you entirely to judge the effect of those articles and to say whether the prosecution is right or whether the accused is right. In doing so there are several considerations which must be present before your minds and to which I shall presently refer. Sir Lawrence Jenkins again says on this point: 'For the purpose of determining whether in this case there has been an attempt, you will be entitled to approach the question in this way. It will, first of all, be for you to look at these articles and determine what is their true meaning, what is the innuendo they, convey, what is the covert meaning, if any, they have. Having reached that point, you must decide in your minds what is the probable or natural effect of these words. Are they calculated to bring into hatred or contempt the Government or excite against it feelings of disloyalty or enmity And if you come to the conclusion that they do, then you will consider whether that was not the intention with which the words were used or published. For the purpose of determining whether or not that was the intention, you will be entitled to act according to that very universal principle that a man must be taken prima facie to intend that which is the natural result of his acts under the circumstances and in the particular case in which that act has taken place or occurs. So that if you come to the conclusion that these words are calculated to produce the mischief against which the section is directed, you will be entitled to say that they were intended to produce that mischief.'
5. While judging of the articles from the articles themselves you will remember, gentlemen, that the accused has pressed you to take his explanation into consideration and the circumstances under which those articles were written. By all means do so. Take all the surrounding circumstances into your consideration. We shall consider some of the circumstances later on. Give the fullest effect to the surrounding circumstances and to all the explanations that he has given and then ask yourselves whether the articles written are seditious and come within the purview of the law, or whether they come within any of the explanations which the law provides for-whether the circumstances urged by the accused form any justification for his saying that he is not within the purview of the law.
6. Before I pass on to other questions I think it is just as well to refer to a case with reference to the word attempt which was referred to by the accused : Jiwan Das v. King Emperor (1904) P.R. No. 30 of 1904. The accused only read a part of the head note. The case was not fully before you. It says : 'Where the acts committed by the accused consisted only in running after the complainant with an axe in his hand and raising it to the shoulder when about four Madams from the complainant, but before there was time to do anything further in pursuance of his purpose, the axe was snatched out of the accused's hands; held, that the accused was not guilty of an attempt to commit murder as neither of his acts could per se have caused death.' So far it was read to you but the conclusion of the case was not before you. It is this : '' But he was guilty of an attempt to cause grievous hurt punishable under Section 511 read with Section 326 of the Indian Penal Code'. I have looked at that case. The case merely comes to this. A man runs after another with an axe. When about four feet from his intended victim he is stopped by some other person. He is charged with an attempt to murder. The Court says supposing he had hurt the man with an axe how can we say he would have killed him. It is possible that he would have only caused hurt to him. And it may be that the person hurt may not have died and therefore we will not convict him of attempting to murder but we will convict him of attempting to cause grievous hurt. That is the case referred to. A man who runs after another man with an axe does not do it for fun. If he is not guilty of murder he is guilty of something else. Then, gentlemen, there were a great many ancient cases referred to, cases centuries old, cases that took place in other countries, under other circumstances, where the surrounding circumstances were very different, the times were different, occasions were different and where there was no statutory provision against sedition. You have had numerous citations from counsel's speeches from the speeches of Mr.Erskine, afterwards Lord Erskine. and you have had numerous decisions quoted-The Dean of St. Asaph's case (1783) 21 St. Tr. 847 and R. v. Lambert & Perry (1810) 31 St Tr. 335 in the eighteenth and nineteenth centuries. All those cases or some of them I find collected in a small book on sedition written by J. Chaudhuri. I say take those cases into consideration, take also everything that you are told about the liberty of the press into your consideration, protect the liberty of the press. I go further and say let the jury stand, as the accused has asked you to stand, between him and the prosecution, as the protectors of the liberty of the native press. Judge of the native press with greater consideration than you do of the English press. It is an younger institution, and, therefore, probably more enthusiastic, and I say extend all indulgence to the press, protect it. Take the articles, read them, see what effect they produce on your minds and if you think these are the articles that are legitimate articles that a journalist can write without transgressing the provisions of Section 124A by all means return a verdict of not guilty in favour of the accused. What do these English cases lay down. They lay down this: 'Merely to represent that an erroneous system of Government exists under Her Majesty's reign, I am not prepared to say, exceeds the freedom of discussion on political subjects which the law permits; if it imputes nothing but honest error without moral blame, I am not prepared to say that it is a libel.' R. v. Lambert andPerry (1810) 2 Camp. 398. Then in another case another judge says : 'My opinion of the liberty of the press is that every man ought to be permitted to instruct his fellow-subjects ; that every man may fearlessly advance any new doctrines, provided he does so with proper respect to the Government and religion of the country; that he may point out errors in the measures of public men, but he must not impute criminal conduct to them. The liberty of the press cannot be carried to this extent without violating another equally sacred right, namely, the right of character. The right can only be attacked in a Court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends.' R. v.Burdett (1820) 4 B & A. 132 In another case again it is said: 'You should recollect that there is no sedition in censuring the servants of the Crown or in just criticism on the administration of the law or in seeking redress of grievances'. 'You should recollect that to public political attacks great latitude is given. Dealing as they do with the public affairs of the day, such articles, if written in a fair spirit and bona fide, often result in the production of great public good'. E. v.Sullivan (1868) 11 Cox 44 Test the articles by these principles laid down by great English Judges. Let this be present to your mind-the passage in the address of Lord Fitzgerald to the jury where he says: ' You are the guardians of the freedom of the press, and whilst you will check its abuse, you will preserve its freedom' E. v. Sullivan (1868) 11 Cox 44.
7. If you think the liberty of the press is abused, and you can only think so when you can clearly come to the conclusion that the provisions of the law are transgressed, then it will be your duty to return your verdict according to that view. If you think that, the articles that are before you are articles that are not calculated or are not intended to give rise to a feeling of hatred and contempt, disloyalty, ill-will, and enmity against Government then the accused is entitled to the benefit of that conclusion at your hands. If, on the other hand, you think that the articles impute dishonest and immoral motives to Government, if you think that the articles tend to create feelings of disaffection or excite feelings of disloyalty, if you think, as the prosecution has put it, that these articles are calculated to convey to the minds of the readers the impression that murders, political murders, murders from political motives are approved of by the writer, then you will have to consider what effect that would have on the minds of the readers and return your verdict according to the view you take. I join with the accused in asking you not to be led by stray words, stray expressions, stray idioms in his writing. Give all the weight that he asks you to give to the fact that Marathi language is a language in which certain expressions are wanting, that he has to coin them when he is writing in high flown Marathi. Judge of the articles taken as a whole. Judge of the impressions produced on your minds after reading not a stray sentence here, not a stray sentence there, but after reading the whole of the articles, and having read the articles ask yourselves what is the effect that is produced on your minds. If the two articles which are called the incriminating articles and which are put in as Exs. C and D, one of the 12th of May and the other of the 9th of June-if these two articles in themselves contain sufficient materials for you to decide whether what is written there amounts to an attempt to excite feelings of disaffection and feelings of hatred and contempt, then you need not go further. If you have any doubts, if you find that the, articles do not by themselves convey the meaning which the prosecution asks you to put upon them, then you are entitled to look to the other articles which are admissible and relevant under the law to enable you to judge of the intention of the accused. You must give to the articles, to the expressions, tothe sentiments, their ordinary natural meaning-the ordinary meaning which is attributed to that particular form of language. Gentlemen, the accused's main complaint was about the translations. Mr. Joshi was submitted to cross-examination in this box. It is for you to judge what impressions he has produced. It seems to me that he was a man who gave his evidence without any bias or animus whatever against the accused and he went through his examination of the knowledge of Marathi with, I think, credit to himself as a Marathi scholar. He was prepared to give translations of words, he had his dictionary at his elbow, and he seemed to have expended a good deal of time over the expressions in the articles. You must, however, remember-that the translations of the articles before you are not Mr. Joshi's translations. The articles are translated by a responsible translator of this Court and he would not be a translator and interpreter of this Court unless he was an efficient man and a man capable of translating correctly. The ordinary rule in this Court is that where a document in the vernacular language is officially translated by a High Court Translator it is accepted by the Court as a correct translation. The accused does not attribute to the High Court Translator any animus against him. Then why does he call these translations distortions It may be that in the translations the spirit of the articles may be lost in some places but you have heard the accused take Mr. Joshi through a long cross-examination. He has explained to you where the mistranslations according to him come in' I think the fairest thing to do under the circumstances is to accept his translations and his corrections in every instance and in every particular. As I say though parties are bound by the translations that are placed before this Court by the Official Translator of this Court still a man is liable to err, and it may be that the Translators sometimes err. It is quite open to the accused to place before the Court his views and bring those errors to the Court's notice. He can do that in various ways. He can do that by submitting to cross-examination any one of the witnesses for the prosecution as he did with Mr. Joshi. Mr. Joshi was placed in the box for the purpose of proving Mr. Quin's signature to the sanction and counsel for the prosecution asked a question which, I think, was perfectly unnecessary and that was whether the translations were correct. They are assumed to be correct, and the Court is bound to accept them as correct unless some error is pointed out to the Court. Whether that question led to it or not, the fact remains that the accused took advantage of Mr. Joshi being in the box and subjected him to a very prolonged cross-examination and in that cross-examination Mr. Joshi has given you what he considers to be right and what he considers to be an error. The accused has told you to accept his translation of certain words and expressions and I say, accept, for the purposes of this case, all his corrections. I have taken down a great many of them. For instance, for 'sorrow' say, 'pain,' for 'white' say 'English,' for 'perversity' say 'stubbornness, 'for 'extraordinary' say 'strange,' for 'madcap' say 'fanatic,' for(sic)'', say, 'oppressive official class' and so on.
8. Well, I say, gentlemen accept those corrections. It may be that in the reading of the articles it may affect your minds differently. If it does by all means give the benefit of that to the accused. But when we read a book or an article are we guided by the mere expressions used in the book or article or are we guided by the effect that is produced, by the sentiments that are expressed? Look to the sentiments. If you think that the translation is, as the accused says, distorted, if you think the translation is unfair, substitute his translations and then consider whether the meaning of the sentiments that are expressed in those articles, as translated by the Court translator, is different from the meaning of the sentiments that is conveyed to you with the substituted expressions as suggested by the accused in those translations. Then again, gentlemen, in judging of those articles you must take into consideration, as the accused pointed out, all the surrounding circumstances and you must also take into consideration his audience-his readers. The accused has told you that he has a very large circulation, the largest circulation he says so far as any vernacular or Anglo-varnacular paper is concerned. All that he has written would be read by his many thousand subscribers-would be read by, I suppose, learned men, Marathi scholars, and by people who are not learned, by people who are not very intelligent, and by people who are not very sensible and able to weigh one thing against another. Possibly it is read by a great many people who have no conception of what the political parties or what the divisions amongst the various parties mean. You have to consider what effect these writings would produce upon the accused's readers and then judge what effect those articles read by a large and promiscuous body of readers would produce on their minds. You must remember that the readers of these articles have not had the advantage of twenty-one hours and ten minutes' explanation which the accused has offered you with reference to these articles. These are published and circulated broad-cast. They are read by the people to whom they go and you may if you like assume that these people knew the purposes for which they were written as explained to you by the accused here. A great deal was said by both the sides as to motives and intention guiding the acts of various people-the law with reference to that intention and with reference to whether the facts are true or not true is crystalized here. 'It will be observed that both in the explanation of Section 124A, and in the language quoted above, the essence of the crime consists in the intention with which the language is used. But this intention must be judged primarily by the language itself. Intention for this purpose is really no more than meaning. When a man is charged in respect of anything he has written or said, the meaning of what he said or wrote must be taken to be his meaning, and that meaning is what his language would be understood to mean by the people to whom it is addressed.' (Mayne's Criminal Law of India, 3rd edn., p. 520.)
9. Well, gentlemen, how are we sitting here as Judge and Jury to decide whether the writing of the accused has excited or is calculated to excite feelings of hatred, contempt, ill-will, enmity and disloyalty against Government. Is it possible to prove that by evidence. If you call 100 men belonging to one side friendly to the accused, they would say ' we have read these articles and we don't consider that they produce any such feelings in our minds-none of contempt, none of hatred to Government.' You produce another 100 men of other views who will tell you that the feelings produced in their minds were the other way. It is impossible for the prosecution in a case of this kind to prove by actual evidence as to whether if the seed is sown it has fructified or not. Therefore, the true test that you have to apply is to look at the various articles that are placed before you and judge of them as a whole and judge what effect they produce on your minds in the first instance, judge whether they are calculated to produce feelings of hatred, contempt, disloyalty, enmity towards the Government in the mind of the readers of those articles, and judge for yourselves whether language like this used by accused is or is not likely to inflame the Hindus against the Europeans or the Europeans against the Hindus ; judge of human nature as human nature is ; judge by your ordinary sound common sense and then return a verdict.
10. One thing you must keep carefully before your minds. Violence, disorders, murders, cannot take place by the hand of the man who does not entertain feelings of contempt, hatred, disloyalty and violent enmity towards those that are responsible for the order and good Government of the country. If you have disorders, if you have violence, if you have murders, they are the acts of people who bear hatred towards the ruling class and entertain feelings of contempt for those whose duty it is to preserve peace and order in the land. If they had proper respect for Government, if they had proper feelings for the people responsible for the safety of property and life and limbs of the subjects, if they had those feelings in them there would be no disorder, there would be no violence, no trouble, and no bomb throwing. I have told you, I think, that the law does not require that an attempt should be successful. The law does not require that the attempt should be to incite rebellion or mutiny or violence. The law is much stricter than that. The accused addressing you said : ' The law may be rigid : the law may be harsh. Stand between me and the law and protect me because I represent the liberty of the press.' Gentlemen, you have to decide cases as they come before the jury according to the law as it stands. It is not for me, or for you, to judge whether the law is harsh or whether the law is severe or rigid. The law is there. It is the law of the land. I am here to administer it. You are here to tell me whether the accused has transgressed that law. That law is plain and according to your verdict I am to administer that law here. We are not the judges of the law. We are not here to judge whether the law is harsh or not. It is the bounden duty of the subject of the Crown to obey that law implicitly and no motives, no amount of honest intention, nothing can justify the breach of the law of the land in which we live. Of course, in doing an act a man, if he is a human being, is always actuated by some motive. It may be a proper motive, or it may be an improper motive. There may be some cases in which those motives may be in doubt and when there are protestations of honest motives before you, it may be interesting to look at the writings or the speeches and then to say whether those writings are consistent with proper or honest motives.
11. You, gentlemen, are not, however, concerned with motives. You are not further concerned with the truth or otherwise of the allegations or charges. Sometimes a true statement may be so perverted that it conveys far more powerful poison to the minds of the readers than if the whole thing was an invention. Truth may be perverted. Whether the statements in the articles are true or not it is not for you to judge. You may look at the articles, and see for yourselves how far the statements in them are true but what you have to do for the purposes of this case is to read the articles and to say whether these articles amount to an attempt to excite hatred and contempt against the Government established by law, whether they are an attempt to excite disaffection. If you think that these articles now before you are calculated to arouse and give birth in the minds of the readers to feelings of hatred and contempt against the Government, if you feel that these articles are likely to engender feelings of disloyalty and enmity against Government, if you think that these articles are likely to lead to disorders and violence in consequence of such feelings, then it will be your duty to consider whether that is not a transgression of the law.
12. In reading the articles, gentlemen, make all allowances for oriental modes of thought, for oriental modes of expression and forhigh flown or classical language. Your first duty ought to be in fairness to the accused to try and put an innocent construction upon these articles if you can. If you can conscientiously say that these articles are articles which are capable of aninnocent construction and that they are not transgressions of the law, it will be your first duty to test them in that way and say so. If you think that there are no transgressions of the law, if you feel any reasonable or substantial doubt as to whether the accused has committed a breach of the law, by all means give him the benefit of that doubt. He is entitled to it. It is his right. It is his right to have a construction placed on his articles that is most favourable to him. It is only when you are driven to say that these are articles which you cannot conscientiously say do not transgress the provisions of the law, then it is your duty to return a verdict in accordance with that conclusion. You must remember that mere protestation of disapproval or disapprobation of crimes or violence may be a veil for the purpose of emphasizing the real object of the articles. You must not, therefore, be merely guided by a stray sentence which you may take to be an incitement to violence and you must not be guided by another sentence which may be construed as expressing disapprobation of the crimes that may be under discussion. You must read each article as a whole and then judge.
13. Gentlemen, the Grown prosecutes; the Crown has as much right as a private individual to say:-'Protect the Government from attacks or from libels which are likely to lead the people to entertain feelings of enmity and disloyalty against the Government '. You must make all allowances for fair and free discussion. Government, we heard lately, is 'fair game'; and by all means let Government measures, administrative, executive, legislative, be subjected to as harsh and as uncompromising criticism as you like. Freedom of the press must be protected and if Government complains we shall not listen to those complaints ; but that criticism must be conceived in a spirit of honesty and must be free from all imputations of dishonesty or immoral motives and those discussions must be free from the taint of language which is likely to arouse or calculated to engender feelings of enmity, hatred, disloyalty against the Government. You must, gentlemen, again in judging of the accused remember this that the Government has no right to say ' our subjects shall love us or shall regard us with affection. '' A man is not bound to entertain any affection for Government. They do not claim it ; they do not ask for it -they have no right to ask for it. So far as the law is concerned a man may entertain feelings of hatred against the Government and bear feelings of enmity towards the Government; he may entertain what feelings he likes but he must not write them; he must not speak them out in a manner that may be calculated to give rise in the minds of others to similar feelings. He may if he likes write libellous or seditious manuscripts and keep them in his table drawers or carry them about in his pocket but he cannot publish them. He may entertain hostile feelings ;he is not bound to feel any affection for Government. He is not asked to make any protestations of loyalty. If he cannot or does not really entertain feelings of loyalty he is welcome to entertain any other feelings he likes. All that the law requires is you shall not publish such sentiments or do such acts as will engender feelings of enmity, contempt or hatred towards Government. Of course, gentlemen, you must remember that the accused owes no duty to anybody except to himself. He is entitled to defend himself in any manner he likes, he is not under any obligation to prove anything. The prosecution must prove their case against him. The prosecution have placed before you certain articles and they say: 'These are the articles we complain of'. The accused says: ' I am a journalist. I have two hundred papers lying on my table week after week. I have to digest and weigh them and read and write on the spur of the moment'. This is his statement which you must take into consideration. If a man on the spur of the moment, in haste, or by inadvertence, writes a para which may be construed into a para coming within the section you would make allowances for it. The jury, as men of common sense, would say: 'Oh no, we are not going to punish this man because, on the spur of the moment, without consideration, without thought, he has transgressed the law by writing this'. Give the amplest consideration to the argument that is urged by the accused. If you think that he has written these articles on the spur of the moment, take that into consideration. The spur of the moment commences on the 12th May, the bomb outrage took place at the end of April; twelve days after that outrage commenced a series of articles and they go on for the next four weeks. If you think that these articles written nearly a fortnight after the occurrence, reiterated for four weeks after the first article was published, could be said to be writings on the spur of the moment, you are entitled to take that into consideration if it recommends itself to you. Then you are told, gentlemen, 'I did this in self-defence'. I can understand self-defence if somebody pulls your nose and you box his ears ; I can understand it and make allowance for it. But if one man pulls your nose and you box another man's ear how would that be self-defence Because, the Pioneer attacked the native editors and agitators and said something very unjustifiable, why do you turn round against the Government What is there to show that what was written by the Pioneer was incited by the Government, and that the Pioneer is a Government organ as alleged before you What is there to show that because a newspaper said : ' Have these agitators whipped by sweepers and shoot them down', that the Government were going to do it It is for you to consider, these matters, gentlemen. I am only expressing views that present themselves to me as some of the aspects of this case. I leave you free, gentlemen, to accept any of the views that I am giving expression to or to reject them. Anything that I am saying which does not recommend itself to you, by all means reject. Judge for yourselves, I do not wish to press my views on you at all. All I say is, these are the aspects of the case which present themselves to me. You are the sole judges of what the articles mean, what their effect is and ought to be. It is on your verdict that I will act. It is for you to say whether the accused is guilty or innocent. I beg of you not to be influenced by the views I am placing before you. If your views coincide with anything that I say, well and good. If not by all means give preference to your own views in the matter.
14. As the case has been a long one and as many considerations have been urged before you, it is, I think, but fair that some of considerations should be the discussed before you.
15. A great many quotations from articles and books were read before you by the accused. Some of them must have struck you as very objectionable, you must not allow yourselves to be prejudiced against the accused by this. It may be that appearing as he does in person it was indiscreet of him to have indentified himself with some of those articles and extracts which he read before you. It is not any excuse for a man to say: 'I wrote the seditious articles because somebody else has been writing seditious articles for a long time'. That is no excuse : that could not be and ought not to influence your minds. I do not say the accused says so. The accused merely says 'I wrote in a strain similar to what other people are writing.' It is not for us to judge why other people are not prosecuted. And whether they are liable to be prosecuted and whether they are guilty of sedition, it is not our duty to inquire. Your duty lies in reading these articles and telling me then whether in your opinion they transgress the law as it stands. The accused has told you that he carries on an open constitutional fight. He says that he has a God-sent mission, his cause is a sacred cause of righteousness, If you think those articles are written in furtherence of an open constitutional fight, if you think those articles are written in furtherance of a God-sent mission, in furtherance of a sacred cause of righteousness, then you are entitled to give all the benefit of that consideration to the accused.
16. Gentlemen, what is the theme What is the subject of those articles-the advent of bomb. One needs no telling that in the case of a bomb theatrocity of the crime can only be equalled by its cowardice. That is the subject which is being discussed. A murderer kills one man, a bomb may kill dozens. It is a subject which every right minded man ought to regard with feelings of horror. That theme is the subject of discussion before you in the articles that are before you. If you feel convinced that that subject is argued in a proper manner by all means acquit the accused. Are you prepared to accept, is the accused prepared to argue that the bomb is a legitimate means of political agitation Do these articles convey to you the meaning that bomb throwing is one of the legitimate means of political agitation. In that case you will have to judge what the effect of the articles would be on the minds of the readers. Accused says that the agitators were falsely charged as being responsible for bomb throwing and therefore he got provocation and he wrote these articles. It is not for us to judge whether agitators were or were not responsible for what happened, but one thing, gentlemen, is perfectly certain. When feelings of hatred, contempt, disloyalty, enmity against the Government are engendered in the minds of men, and when these feelings reach a mostacute stage then alone they find vent in those deeds of violence. The whole matter has been discussed before you and the contentions of both sides are before you. 'The cult of the bomb' and ' The secret of the bomb' and '' The double hint' are all before you. It is for you to judge whether those articles contain or not in them expressions of approval, of approbation at the advent of the bomb in India.
17. You have the 'bomb party' discussed just as you have the Reform party or the Nationalist party or the Liberal party. One of the parties openly and freely discussed is the bomb party. Mr. Joshi told us of certain political parties existing. We did not hear of bomb parties. We however hear of them in these articles where the existence of such a party is taken for granted. It is for you to say, gentlemen, whether that repeated reference to a bomb party, whether the reference to the bomb in the manner in which it is made, is or is not calculated to bring Government into hatred and contempt. It is for you to say, gentlemen, whether those articles that are before you are the lucubrations of a man who merely discusses political problems and resents an attack.
18. You were again told, gentlemen, a great deal about : 'I shall be charged with having used innuendoes and with making veiled attacks.' Look at the articles, gentlemen, do you think there are in them mere innuendoes or much veiling Whatever you can say of the articles one thing is quite clear : there is a great deal of plain speaking. Whether that plain speaking is justified or not, it is for you to judge. Whether it is a transgression of the law, it is for you to decide. Whether the effect of the articles is to make you believe that the accused believes that bomb throwing is a legitimate weapon of political agitation or for obtaining greater rights and privileges, it is for you to say. I would like to say that you must not judge of the articles merely because some of it may be written in what may be called bad taste. Every journalist may write as he likes. He is not bound to observe good taste; he is not bound to observe any consideration except that he must not transgress the law. Consistently with that he is entitled to discuss all questions in the manner that best recommends itself to him. Now the article of the 12th May has been read to you only recently by the Advocate-General and at this hour I do not propose to read much from this article. Take for instance, gentlemen, the first article. At the bottom of page 2 you find : ' However, the desire of the people gradually to obtain the rights of swarajya is growing stronger and stronger, and if they do not get rights by degrees as desired by them, then some people at least out of the subject population being filled with indignation or exasperation will not fail to embark upon the mission of improper or horrible deeds recklessly.' Now just judge of the effect produced on Marathi readers by this sentence. We want swarajya; if you do not give it, some people will get so horribly annoyed that they will resort to improper and horrible deeds recklessly. The only improper or horrible deed discussed here is that which occurred at Muzaffapore where a boy threw a bomb killing two innocent ladies. And we are told swarajya must be given, if swarajya is not given some turn headed men will become violent and commit horrible deeds.
19. Then again you have this : 'Some think that this thing can be accomplished by supplicating this intoxicated official class itself, or by petitioning the Government in England who exercise supervision over it. Some others think this improbable and they have persuaded themselves into the notions that in accordance with the maxim 'the mouth does not open unless the nose is stopped' unless a spoke is put some where into the wheels of the car of the administration of the present rulers, their desired object will not be accomplished'. What is the spoke within the wheel What is the spoke in the car of administration? The bomb, which is discussed in this article or anything else
20. Then again at p. 4 you have : 'But while such efforts are being made who will guarantee that no person whatever in society will go out of control'. I am bound to point out that on the 5th page and the latter half of 4th page there are some sentiments that appear to be perfectly proper. If you wish to know what the intention of the accused was and what he was writing you have to turn to Ex. E, which are Editorial Notes or stray thoughts of the Editor published on the 12th May in the same issue of the Kesari in which the article appears. Take the first stray thought of the editor and take the latter half of it : 'When secret plots of a very similar kind were discovered in Ireland, the statesman Mr. Gladstone instead of making use of the Tarkatashastra, made use of the genuineTarkashastra, and made efforts to grant 'Home rule' that is swarajya to that country. Some people pay attention to the evil attacks of a vice, firmly establishing the body, only when that vice begins to inflict trouble upon the body, in the shape of a terrible abscess : and an effort is then made to remove the vice. The terrible murders that took place in Ireland spontaneously rivetted England's attention to the grievances of that country and then Home-rule or swarajya for Ireland began to be discussed. Such usefulness of one sort of these murders has been indirectly described by Lord Morley in one place. Will the terrible occurence at Muzaffapore rivet Lord Morley's attention to the grievance about the partition of Bengal.' Mark the words, gentlemen, ''such usefulness of one sort,' ''murders are useful sometimes in order to rivet the attention of the authorities to the grievances,' and here we have murders of two ladies discussed and they are useful for the purpose of rivetting the attention and getting swarajya just as Ireland got or attempts to get Home Rule.
21. Take the second stray thought and look at the lines just at the bottom; 'It is only when rulers wished in their minds to wipe out of existence any society, any group of people or any nation, that in the first instance repressive laws, and afterwards laws that would partially wipe them out of existence, are brought into force. But mankind has neverbenefited through such national assassination'. The suggestion here is that Rulers wish in their ' minds to wipe out the existence of some society or some group of people or some nation. These writings may be capable of explanation. The accused has attempted to give explanations and it is for you to say whether his explanation is sufficient to convince you that he has not transgressed the law contained in the sections under which the accused is charged.
22. Then, gentlemen, we come to the consideration of the second article of the 9th of June. It is very difficult to comment on this article. It has been read to you-I would rather leave it to you to judge for yourselves what the effect of that article is. What is the article What does it contemplate What does it preach ?-under the heading 'these remedies are not lasting.' The accused says here that repressive measures are not effective and will not do away with the bomb from India. He goes on discussing the bomb and makes comparisons between various people who used bombs. 'The authorities have spread the false reports that the bombs of the Bengalis are subversive of society. There is as wide a difference between the bombs in Europe desiring to disperse society and the bombs in Bengal as between the earth and heaven. There is an excess of patriotism at the root of the bombs in Bengal'. If one talks of patriotism in connection with bombs, bombs that effect murders, you are judges of the question whether such a discussion tends or does not tend to bring Government established by law in India into hatred or contempt in the minds of the readers. Take the top of the 2nd page, 'the most mighty Czar of Russia too had per force to bow down before the bomb and while making repeated attempts to break up the Duma, was at last obliged to establish it as a matter of course.' Mark the words 'bow down to the bombs.'' Then there is a simile of a parrot whose wings are plucked and the legs broken. I suppose it is intended for the Indian Nation. Then there is a comparison between the Aurangzeb's sway and the sway of the English nation. Then, you have some sentences which may or may not affect your minds with reference to the third charge under this article. You have then a whole page which I have no doubt you have read and which it is unnecessary for me to discuss. You have similes, you have the effects of bombs in various ways and its usefulness. ''Unless' a beginning be made to divide wealth and authority with the subject, with greater liberality than was shown by the Moguls, England will not henceforward be able to carry on the administration, without any hitch., through officers having only, a temporary interest in the country. The bomb is not a thing like muskets or guns. Muskets and guns may be taken away from the subjects by means of the Arms Act and the manufacture too, of guns and muskets without the permission of Government may. be stopped, but is it possible to stop or to do away with the bomb by means of laws or the supervision of officials or the busy swarming of the detective police? The bomb has more the form of knowledge, it is a hind of witchcraft, it is a charm, an amulet, & c.' Those of you who can read Marathi will be able to read it as the accused has written these passages. The accused has given you an explanation of his meaning of many things. Has he explained what this means I have had portions of the original article read to me written out for me in correct and legiblecalligraphy and the words used are 'It is a witchcraft. It is a magic, spell or amulet, i.e., a remedy for disease.' It is for you to say whether the accused has satisfactorily explained these passages.
23. When an accused person is charged with an attempt to excite feelings of disaffection, of hatred against Government, and other articles are put in for the purpose of showing the intention, one never is desirous of rivetting one's attention to the articles that do not form the subject-matter of the charge but there may be something in them which may throw light on the question as to whether they are calculated to raise feelings of disaffection. For instance in Ex. G (at p. 2 in the middle) you find : 'The Bengalis persistently agitated against the partition of Bengal in a constitutional manner but they did not get redress. Well, it did not matter if there was no redress, thinking that they would improve their condition by resorting to swadeshi, boycott, national education, and other approved methods of self-reliance, they betook themselves to the path of national regeneration.' Perfectly legitimate sentence; you could not find fault with it. He complains as a journalist that the Bengalis dissatisfied by partition agitated by constitutional means to have it set aside. Failing that they resorted to the path of national regeneration. 'Thereupon,' he says, 'some of the authorities caused their own heads to turn by this patriotism of Bengal and letting loose some Mussalman gundas upon the Bengalis caused damage to their property and to the honour of their women.' It says that when the Bengalis were resorting to perfectly proper and legitimate means for their national regeneration the Government became turn-headed by this patriotism of the Bengalis ' and letting loose some Mussalmans caused damage to their property and to the honour of their women. Is it or is it not a charge against Government of inciting Mahomedans for the most improper of purposes to attack the Bengalis, to loot their property and defile their women It is for you to say if anybody after reading this could entertain feelings of respect for Government or whether feelings of hatred, contempt, enmity and disloyalty would not be engendered in the mind of the reader. As I said before these articles have been before you a long time. It would take me a great deal of time to to discuss the effects of all these articles. I repeat again judge of the articles for yourselves. Do not let what I have said while drawing your attention to passages in these articles unduly influence you one way or the other. Anything that I have told you if it commends itself to you accept it. If it does not reject it without any hesitation.
24. There is one other small subject that is to be discussed and that is the post-card (Ex. A.). Well, gentlemen, you are the best judges of what effect to give to it. To my mind it is not a piece of evidence which ought to affect your minds. The post-card is there; it contains the names of two books on explosives. Of course, the production of catalogue to show that the books were mentioned in the catalogue means nothing. When we want books of a particular kind we look into the catalogue for the purpose of finding what books are published on that particular subject. The accused has given his explanation that it was his intention to study the books with a view to criticize the Explosives Act. It may be true. We do not know whether these books are books which treat of the manufacture of explosives; because I should have thought that if they merely refer to the manufacture of explosives they could not help in the discussion of the Act. However, it is a piece of evidence which ought not I think in your minds to weigh against the accused. We have his version that he wanted to send for those books. It may be perfectly correct. He has discussed the bombs and he may be desirous of discussing the Explosives Act in some form or another in his newspaper,
25. Gentlemen, I am afraid, I have detained you longer than I in tended to do. The case is one, which as I have said, it is entirely for you to decide. The accused has appealed to you or to some of you to differ amongst yourselves in your verdict at least one or two and he says it would be a great consolation if you differ. I do not know what he meant, or what his object was in asking you to differ. I should ask you to make an effort, if an effort is necessary, to be unanimous. If you think that the accused is not guilty by all means without fear or favour acquit him. If you think that he is guilty it will be your duty to return a verdict accordingly. If, however, any single one of you feel you cannot conscientiously agree with others you are entitled to say so. Let each of you, gentlemen, judge of this case for yourselves in the way that your conscience dictates and if after giving your full consideration to what the accused has stated, after giving your sympathetic consideration to everything that the accused has urged in his defence, if you feel that you have reasonable and substantial doubts as to the guilt of the accused, by all means, as I said, acquit him. If, on the other hand, you feel that he has transgressed the law and that his writings amount to an attempt to bring Government into hatred, or contempt and raise feelings of disloyalty and enmity against Government, then it would be your duty to return a verdict accordingly.
26. I do not think, gentlemen, I can usefully say anything more to detain you. I ask you again to judge of the accused by what is before you, by what you have heard in this room, and by what you have read of his writings that are before you. Put away from your mind everything that you may have heard outside of this Court room and while in the jury box. Apply your minds entirely to the articles that are before you, and tell me, gentlemen, what is your verdict on the three charges. There are three charges as I explained to you. You are at liberty to acquit or convict him on all the three charges. You are at liberty to acquit or convict him on any one or two of those charges. They are separately formulated before you. One charge is with reference to the article of the 12th May under Section 124A, and two charges under Sections 124A and 153A with reference to the articles of the 9th, June. Consider each charge separately and return a verdict on each one of the charges separately; and I ask you, gentlemen, if possible to return a unanimous verdict one way or the other. Whatever your verdict will be it will be my duty to administer the law in accordance therewith. I ask you, gentlemen, to consider your verdict most anxiously. It is a case of great importance to the accused. It means a great deal to him. If you feel that he has transgressed the law it will be your duty to say so. As I said before if you feel any reasonable doubt as to his guilt give him the benefit of that doubt. I ask you, gentlemen, to consider your verdict.
27. The jury returned after considering their verdict at 9-20 P.M.
28. The clerk of the Crown.-Are you agreed upon your verdict
29. The Foreman.-We are.
30. The Clerk of the Crown-Are you unanimous ?
31. The Foreman.-No.
32. The Clerk of the Crown.-I don't want you to tell which way you are but you should give, your numbers.
33. The Foreman-7 to 2.
34. The Clerk of the Crown.-Are you agreed on all the charges by 7 to 2 ?
35. The Foreman.-Yes.
36. The Clerk of the Crown.-On the first' charge which has been referred to under Section 124A in 'respect of the Article of 12th May 1908 what is the verdict of the majority '
37. The Foreman.-Guilty 7 to 2.
38. The Cleric of the Grown,-On the second charge The Foreman-Guilty 7 to 2. '
39. The Clerk of the Crown.-With regard to the third charge The Foreman.-Guilty 7 to 2.
40. Mr. Foreman. Is there no chance of your being unanimous?
41. The Foreman.-I am sorry to say, my Lord, there is no chance of; our being unanimous.
42. Under Section 305 of the Criminal Procedure Code if the jury is divided by as many as six to three a judge is bound :to state whether he agrees with the majority or not and the law requires that if the judge agrees with them the judge, shall give judgment in accordance with such opinion. I am afraid I have no option but to say that I agree with the verdict of the majority and I must accept the verdict of the majority.
43. Mr. Branson.-Before the Court passes sentence-on the accused I propose to prefer another charge.
44. Mr. Tilak-My Lord, I want your Lordship to reserve certain points for the Full Bench.
45. What are the points You seem to have them written out; will you read them ?
[Accused read his application].
46. With reference to this application almost every one of those points that are mentioned here have arisen in the course of the hearing and have been discussed', and there is no single point, I assure the accused, in this application which I have not most anxiously considered. If I had the smallest doubt in my mind and if I thought that any one of these points is worth reserving or worth discussing I would have been most willing to reserve all or some of them for the consideration of the Full Bench but every time I passed orders I have carefully considered every argument, and every contention of the accused. Most of these points are covered by authorities and the other points are so elementary that they hardly admit of any argument. If I felt that there was the least use or that it could do the least possible good to the accused to reserve these points or any one of these points I would have been very willing to do so. It seems to me that none of these points has any substance in it and therefore I must decline to accede to this application.
47. Mr. Branson.-I now desire to have accused put up upon another charge of previous conviction. He will have to plead to it;, yes or no, and the jury will have to decide.
48. The Clerk of the Crown. [Reads the charge.]-In this charge you plead guilty or claim to be tried.
49. Mr. Tilak.-I do not know how the question arises under Section 75 of the Indian Penal Code, Besides it is not stated in the charge.
50. It is not under Section 75 of the Indian Penal Code; but, I presume, it is under Sections 221 (7) and 310 of the Criminal Procedure Code.
51. Mr. Branson.-It is under Sections 227 and 310, and if he denies it I will prove it under Section 511.
52. This is not a proceeding under Section 75 of the Indian Penal Code but this is a proceeding under the Criminal Procedure Code and you have to plead to the charge. The charge is 'whether you were convicted on a' previous occasion.
53. Mr. Tilak.-It is not stated in the charge.
54. It is a charge which after the verdict of the jury is properly made against you. You have to plead to the charge.
55. Mr. Tilak. But it does not become relevant -except for the purpose of enhancing the punishment.
56. That may be. Whatever the purpose is, you have to plead to the charge. That is a correct procedure.
57. Mr. Tilak.-May I take it that your Lordship holds that it is rightly put in now.
58. At the present stage it is rightly put in.
59. Mr. Tilak-In that case I admit.
60. Mr. Branson.-That amounts to a plea of guilty.
61. Yes, I have taken that down; the accused pleads guilty to the charge.
62. Davar J.-(addressing to the accused)-Do you wish to say anything more ?
63. Mr. Tilak.-All that I wish to say is that in spite of the verdict of the Jury I still maintain that I am innocent. There are higher powers that rule the destinies of men and nations and I think it may be the will of Providence that the cause I represent may be benefitted more by my suffering than by my pen and tongue.
64. His Lordship in passing the sentence on the accused said :-
Bal Gangadhar Tilak.-It is my painful duty now to pass sentence on you. I cannot tell you how painful it is to me to see you in this position. You are a man of undoubted talents and of great power and influence. Had those talents and that influence been used for the good of your country you would have been instrumental in bringing about a great deal of happiness for those very people whose cause you espouse. Ten years ago you were convicted. The Court dealt most leniently with you then and the Crown dealt still more leniently with you. After you had undergone your imprisonment for a year, six months of it was remitted on conditions which you accepted.
65. It seems to me that it must be a diseased mind, a most perverted mind, that can think that the articles that you have written are legitimate articles to write in political agitation. They are seething with sedition : they preach violence : they speak of murders with approval: and the cowardly and attrocious act of committing murders by bomb not only seem to meet with your approval but you hail the advent of bomb in India as if something had come to India for its good. As I said it would only be a diseased and a perverted mind that could consider that bombs are the legitimate instruments in political agitation and it would be a diseased mind that could ever have thought that the articles that you have written could be legitimately written,
66. Your hatred of the ruling class has not disappeared during these ten years and these articles deliberately and defiantly written week after week,-not written as you say on the spur of the moment but a fortnight after the cruel and cowardly outrages committed on English women-persistently and defiantly refer to a bomb as if it was one of the instruments of political warfare. I say such journalism is a curse to the country. X feel much sorrow in sentencing you. I have done nothing but considered and considered most anxiously in the eventuality of a verdict of guilty being returned against you what sentence to pass on you.
67. I have decided to pass a sentence which I consider will be stigmatized as an instance of what is called misplaced leniency. I do not think I could pass consistently with my duty and consistently with the offence of which you have been found guilty a lighter sentence than that I am going to give you. But I think for a man of your position and circumstances that sentence will be sufficient to vindicate the law and meet the ends of justice, You are liable under the first two charges to be transported for life. I have considered whether I should give you a sentence of imprisonment or a sentence of transportation. Having regard to your age and other circumstances I think it is most desirable in the interests of peace and order and in the interests of the country which you profess to love that you should be out of it for some little time. Under Section 124A I am entitled to pass sentence of transportation for any of the first two charges and on each of the first two charges I sentence you to three years' transportation. You will thus have six years' transportation. On the third charge, which is not punishable by transportation but is only punishable by imprisonment or fine, I do not think I will add to your troubles by sentencing you to an additional period of imprisonment. On the third charge, I sentence you to a fine of Rs. 1000.
69. On the Advocate General's application the fourth charge was withdrawn under Section 333 of the Criminal Procedure Code, and his Lordship directed that such withdrawal be tantamount to an acquittal.