1. The appellant before us is one Mulla Rahimatalli Mahomedalli. He was charged before the Second Presidency Magistrate under Sections 153 and 292 of the Indian Penal Code in respect of three writings (Yajidki Id marked A, Sharafalli Mamoojeeka Morcia marked C and Khare Dajjal-Ka Matoom marked (G), Exhibits A and C are said to have been published on or about the 11th and 12th July 1918 respectively and as regards Exhibit G it is said that the offences were committed on or about the 9th of August 1918.
2. The trial Magistrate after a prolonged inquiry came to the conclusion that the accused was guilty under Sections 15:3 and 292 of the Indian Penal Code in respect of Exhibit A (Yazidki Id), that he was guilty under Section 153 in respect of Exhibit C (Sharafalli Mamoojika Mercia) and that no offence was established in respect of Exhibit G. The result was that the accused was convicted under Sections 153 and 292 in respect of 'Yazidki Id' and sentenced to pay a tine Rs. 1,000 only one sentence being passed in respect of both the offences under Sections 153 and 292, that he was convicted in respect of the pamphlet 'Sharafalli Mamoojikii Mercia' under Section 153 only and sentenced to pay a fine of Rs. 1,000 and that he was acquitted in respect of the charges connected with the pamphlet 'Khare Dajjalka Matoom.' An order was made under Section 106, Criminal Procedure Code, ordering the accused to be bound over to keep the peace for one year in the sum of Rs. 500 with one surety for the like amount.
3. The accused has appealed to this Court against these convictions and sentences, and it is urged in support of the appeal that Exhibit A does not in any way offend against the provisions of Sections 153 and 292, that Exhibit C does not offend against the provisions of Section 153 of the Indian Penal Code, that the accused is in no way connected with Exhibits A and C, and that he is in no way responsible for the writing or for the printing of these pamphlets, nor for their distribution.
4. Before dealing with these contentions it will be convenient to set forth briefly the circumstances which led to the initiation of these proceedings against the accused. Somewhere in 1917 apparently there was some difference among the Dawoodi Bohras as to the exact position which their Head Priest occupied. The large majority of them accepted him as 'Daie-ul Mutalak' but the small minority including the present accused refused to recognize him as 'Daie-ul-Mutalak' though they did not refuse to recognize him as their-Head Priest only as 'Nazeem Daie.' These differences were apparently acute. In this appeal we are in no way concerned with the merits of this religious controversy between the large majority and the small minority of the Dawoodi Bohras. About the end of July 1017, the Head Mullaji Saheb pronounced against this small minority a sort of anathema by declaring 'Salam Band' indicating thereby a kind of social and religious excommunication. Soon after this in August 1917 a suit was filed by the Advocate General against the Head Mullaji Saheb and others for accounts and for the appointment of proper trustees in respect of Chaudabhoy's mosque and a certain charity box known as Shet Chandabhoy's Galla and other reliefs appropriate to a suit under Section 92 of the Code of Civil Procedure. Among the persons against whom 'Salam Band' was pronounced was the late Mr. Sharafalli Mamooji. In December 1917 he initiated proceedings in the Court of the Chief Presidency Magistrate against the local deputy of the Head Mullaji Saheb and others under Chapter VIII of the Code of Criminal Procedure. These proceedings terminated in February 1918 without any security being taken from the opponents of Sharafalli Mamooji. In July 1918 several other suits were filed by different persons against the Head Mullaji Saheb. One of the suits was filed by the accused to recover damages to the extent of Rs. 50,000, for a declaration that the Head Mullaji Saheb was not the 'Daie-ul-Mutalak' and for a declaration that the defendant had no authority to expel him from the Mahomedan religion or from the Ismail Dawoodi Firka and other incidental reliefs. Similar suits for heavy damages were filed by the sons of the late Sir Adamji Peerbhoy about the same time. All these suits had their origin in the order made by the Head Mullaji Saheb as to 'Salam. Band' against the plaintiff's in these suits. These suits are still pending and we are not concerned in the slightest degree with the merits of these claims. In August 1918 a suit was filed by the Official Assignee against the Head Mullaji Saheb. It is common ground that all these suits are filed against the Head Mullaji Saheb by or at the instance of those who have been excommunicated.
5. I have stated these facts with a view to show the extent of estrangement between the Head Mullaji Saheb and the large majority of the Dawoodi Bohras on the one hand and the small minority including the accused and the sons of the late Sir Adamji Peerbhoy and a few others on the other. Sharafalli Mamooji died somewhere in the early part of the month of Ramzan in the year 1918. The case for the prosecution is that one Eavi Ajmere wrote Exhibits A and C at the instance of the accused, that the accused employed one Sayad Zainu Abadin about the end of June 1918 in order to attend to the accused's work of printing, that he arranged to have these two pamphlets A and 0 printed in the Litho Press called the Shri Ram Press owned by the witness Eamchandra, that 500 printed copies of Exhibit A were taken away from the Press on the 8th of July and about 1000 printed copies of Exhibit C were taken away from the Press on the 7th of July. It is also a part of the prosecution case that this Sayad got the subject-matter of Exhibit C written on a litho-paper by the witness Mahomed Abdul Hakim, that he wrote Exhibit A himself on the litho-paper, that these litho-papers were duly transcribed on the stones and the printed copies prepared in the Shri Ram Press. Exhibit A does not mention the name of the press or of the publisher and Exhibit C mentions the name of the press and a false name of the publisher. The pamphlet Yazid Ki Id is said to have been sent to some of the members of the Dawoodi Bohras on the side of the Head Mullaji Saheb on the Ramzan Id (11th July 1918). The language used is Urdu and it is printed in Arabic character. The pamphlet C was sent to some members of the same section a day later. Some persons who are on the side of the Head Mullaji Saheb arranged to get these two pamphlets translated, and ultimately a complaint was lodged before the Police on the 10th of August. On this information an investigation was made by the Criminal Investigation Department. The three presses, viz., the Shri Ram Press, the Shri Krishna Press and the Chitrottejaka Press were searched and certain articles said to be connected with Exhibits A and C were taken possession of. It is needless to state the facts relating to Exhibit G as the accused has been acquitted in respect thereof; and in this appeal we are not concerned in any way with Exhibit G. On the 12th the accused went to the Police and he was arrested there, and when his room was searched on that day, Exhibit B was found there. This Exhibit B is the manuscript of a part of the pamphlet Exhibit C. Ultimately the accused was charged before the Magistrate on the 21st of September 1918.
6. The defence is that according to the true meaning of the expressions and the words used the pamphlets are not objectionable and that the accused is in no way connected with either of the pamphlets and that the pamphlets have been written by one Ravi Ajmer probably at the instance of somebody from the large majority of the Dawoodi Bohras with a view to create trouble against him, as there was a considerable estrangement between the two parties on account of the suits filed against the Head Mullaji Saheb and in consequence of the keen differences that had arisen as to the religious position of the Head Mullaji Saheb.
7. Coming to details it is urged for the defence that the accused who is a Mulla living in the Sanitarium of Sir Adamji Peerbhoy purchased the Yahia Press in April 1918, that the Press was not in a proper working order, that he wanted to get a pamphlet admittedly written by him called 'Sadaye Hak' printed and that with that view he engaged the services of Sayed as a commission agent to look after and arrange for the printing of the pamphlet 'Sadaye Hak' and that he was not employed by him as a servant on monthly wages. The printing of the 'Sadaye Hak' was to be done in the Shri Ram Press and the Shri Krishna Press and that his visits to the Shri Ram Press in July have been used falsely for the purpose of connecting him with the printing of the pamhlets A and C, which was really the work of the witness Sayed on his own account. It is also urged on his behalf that Exhibit B, the manuscript of a part of Exhibit 0 said to be in the handwriting of Ravi Ajmer, was really not found in the room occupied by him in the sanitarium, but was put in by some enemy of his among the papers found in his room.
8. The appeal has been very fully argued before us and we have considered the arguments on both sides. The contention that Exhibit A does not offend against the provisions of Section 153 of the Indian Penal Code must be disallowed. The lower Court has dealt with this document in detail and before us it has not been seriously contended that the language is not objectionable though it is urged that the translation prepared by the High Court Translator is not accurate. I may state that for the purposes of this appeal we accept the translation put in on behalf of the prosecution. The counter translation put in by the accused as part of his explanation is not supported by any evidence I agree with the trial Magistrate that the translation put in by the prosecution must be accepted. Taking that translation as representing the true meaning of the words and the expressions used in Exhibit A, it has not been seriously contended before us that the language would not be objectionable. It is urged, however, that it is not of such a character as to bring it within the scope of Section 153 of the Indian Penal Code. The Exhibit A consists of about seventeen stanzas, is written in Urdu verses, is called Yazidki Id, and the subject-matter of the pamphlet leaves no doubt as to the identity of some of the persons against whom the writing is directed. It was written apparently on the occasion of the Ramzan Id. I do not propose to cite any passages from this pamphlet to show that it is really written in a very provoking style; and the followers of the Head Mullaji Saheb who may be expected to understand the references against him and other persons may be considerably provoked by a writing like Exhibit A. The act of publishing it would be illegal according to Section 43 of the Indian Penal Code as it is defamatory of certain persons and would furnish ground for a civil action to those persons. Any one who wrote it and distributed it did so malignantly or wantonly; and when we have regard to the fact that copies of these pamphlets were sent on the Id day to some of the followers of the Mullaji Saheb the natural and probable effect of reading it would be to give provocation to the readers. The intention of the person distributing or helping the distribution of these pamphlets could be gathered only from the language used in the pamphlets, and judging of his intention from the natural and probable effect of the writing like Exhibit A it seems to me that the writing is of such a character that the person connected with the pamphlet may properly be said to have intended that such provocation will cause the offence of rioting to be committed. In coming to this conclusion no doubt the ordinary peaceful character of the Dawoodi Bohra community should be taken into account. At the same time their reverence for the Mullaji Saheb also should be properly borne in mind. Both parties before us have relied upon the Bombay Gazetteer, Volume IX, Part II, for the general information about the Dawoodi Bohras in this Presidency. Under the heading of 'trading communities' the Bohras are mentioned first, and among them the Dawoodi Bohras are referred to at pages 28 to 32. It will be enough to state here that 'their home tongue is Gujrathi, marked by some peculiarities of dialect and the use of several Arab words well pronounced even by women who have not learnt Arabic, that they are largely a trading community, and that short of worship the Head Mulla is treated with the greatest respect.' This pamphlet is written in the Urdu language and in Arabic script which could be read by many of the Dawoodi Bohras and understood by almost all of them. Having regard to the state of things as it existed at the date of this publication, it seems to me that Exhibit A is a pamphlet the distribution of which would render the person concerned liable to punishment under Section 153. It is true that no riot has been committed and that the case falls under the second part of the section.
9. It is urged, however, that the distribution of this pamphlet is not punishable under Section 292 of the Indian Penal Code because it is not an obscene pamphlet within the meaning of the section. It seems to me that there is great force in this argument. Having regard to the test of obscenity as accepted in Queen-Empress v. Parashram Yeahvant I.L.R(1895) 20 Bom. 193 and Emperor v. Vishnu Krishna (1893) I. L. R. 18 Bom. 758 it is difficult to say that the pamphlet is obscene. No doubt there are two or three verses which may be treated as obscene in the ordinary acceptation of the word; but applying the test whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, it is not easy to treat the publication as obscene, In each case really it is a question of fact. The question is not of any practical importance in this case as there is no separate sentence for this offence. Taking the general tenor of the pamphlet and considering also the particular parts objected to as being obscene I am not prepared to hold that the pamphlet is obscene. I should say that its leading characteristic is that it is provoking.
10. The other pamphlet Exhibit C with reference to which the accused is convicted only under Section 153 stands on a different footing. As pointed out- in Queen-Empress v. Kahanji (1912) 15 Bom. L. R. 307 the question which we have to decide is whether 'the language used in the (pamphlet) ...does in the sense which fairly belongs to it-the sense that is most natural and obvious-bear the meaning put on it by the Magistrate. We have to look at the circumstances of the case and the occasion and the time. We have to consider the whole poem, giving its proper weight to every part.' The occasion of this pamphlet, which is called 'Sharafalli Mamoojika Mercia,' was the death of Sharafalli Mamooji which had taken place apparently a few days before. He was one of those few who were excommunicated, and it appears from the pamphlet-and the fact is not denied either in the evidence or in the arguments before us-that considerable trouble was experienced by the minority on the occasion of his funeral. It is stated that his dead body had to be carried in a motor car and the Police had to be kept present on the occasion of the funeral at the burial ground. Under those circumstances this Exhibit C appears to have been written. It is an elegy on the late Sharafalli Mamooji as the name of the pamphlet clearly shows, It consists of 64 verses with some side notes by the writer. It extols the virtues and services of Sharafalli Mamooji as the writer understood them, and he has compared his funeral with the funeral of Imam Hasan, the grandson of the Prophet. We are not concerned with the appropriateness of the comparison; but to an admirer of the deceased it cannot be said that it was not open to write about him in the manner in which the Mercia is written. The first half of the pamphlet is not objected to before us. It is urged, however, that in a fairly large number of verses in the latter half of the pamphlet very strong language is used with reference to the followers of Mullaji Saheb and that the objectionable words like Yazid and Dajjal are used with reference to the Mullaji Saheb himself. The learned Magistrate has given a list of the objectionable words. But if the pamphlet is taken as a whole and if the parts objected to are considered in relation to the subject-matter of the pamphlet, it seems to me that the main object of the writer is to extol Sharafalli Mamooji, and no doubt to condemn those who according to the writer created trouble on the occasion of his funeral and were opposed to him. The words like 'mischief-mongers', 'pig', 'hog' and 'ass' are used with reference to those who according to the writer organised and created trouble on the occasion of the funeral. If these verses are fairly read it seems to me that the condemnation relates to those who created or intended trouble on the occasion of the funeral of Sharafalli Mamooji and not generally with reference to the followers of Mullaji Saheb. I do not say that the word Yazid is not used with reference to the Mullaji Saheb at any place, but generally speaking it is capable of being read as referring to the leader of that group of persons who wanted to create a trouble on the occasion of the funeral. There is nothing in the case to show, nor is it suggested on either side, that the Head Mullaji had anything to do with the opposition displayed by some of his followers on the occasion of the funeral of Sharafalli Mamooji; and it is clear to my mind that where the writer refers to the trouble created on the occasion of the funeral, the reference cannot be to the Head Mullaji Sahab, but to the leader of those who created trouble on the occasion. Viewed in that light it seems to me that the pamphlet is capable of an innocent reading. In thought, expressions and subject-matter it differs considerably from the other pamphlet; and the mere fact that it came to be distributed about the same time as Exhibit A is not a' sufficient reason for attributing to the person distributing such a pamphlet any intention other than that which can be gathered from the natural and probable effect of a writing like Exhibit C. The intention must be determined in the usual manner with reference to the natural and probable effect of the writing. In my opinion the occasion for writing it was perfectly legitimate; while extolling the virtues and services of the deceased the writer no doubt condemns the opponents of the deceased, particularly those who created according to the writer a serious trouble on the occasion of the funeral. Taking the pamphlet as a whole and also considering the parts objected to I am not prepared to say that there was any illegal act done in connection with this pamphlet because I am not satisfied that it is necessarily defamatory or that it would furnish ground for civil action to any one. Therefore the distribution of such a pamphlet cannot be treated as an illegal act and I cannot say that the writer intended or had knowledge that a riot was likely to be committed in consequence of Exhibit C. I have considered the pamphlet with reference to the charge only. I am not concerned with the propriety or otherwise of the language used and the sentiments expressed, and I express no opinion with reference thereto beyond holding that it does not come within the scope of Section 153.
11. [After discussing the evidence in detail, his Lordship continued: ] The accused is shown to have been connected with the printing and with the distribution of Exhibit A. He is shown to have been connected in the same manner with Exhibit. For the reasons however which I have already given, I think that his conviction under Section 153 in respect of Exhibit C is not right. I am not satisfied that his conviction under Section 292 in respect of Exhibit A can be justified. I am satisfied however that he has been properly convicted under Section 153 in respect of Exhibit A.
12. My learned brother takes a different view of the case with reference to Exhibit C. Having regard to the fact that we are agreed as to the conviction under Section 153 in respect of Exhibit A I do not think that this case should be further prolonged by a reference to a third Judge. In view of the modification of the sentences I agree that the order of the Court may be R 28 as proposed by my learned brother as regards the convictions and sentences.
13. Lastly there remains the question relating to the order of security. This order is made under Section 106 of the Code of Criminal Procedure. I am by no means satisfied that the offence under Section 153 is an offence involving a breach of the peace within the meaning of Section 106 of the Code of Criminal Procedure. In the case of Emperor v. Husain Bakhsh I.L.R (1907) All, 569 Mr. Justice Dillon has expressed the opinion that a conviction under Section 153 would not bring the case within the purview of Section 106 of the Code of Criminal Procedure. No reasons however are given in support of this view. The expression 'offences involving a breach of the peace' has been interpreted in different ways in different cases. Personally I incline to the view that the expression really refers to offences of which a breach of the peace is an essential ingredient. According to that view the present case would not be within the scope of b. 106 of the Code of Criminal Procedure. But this point has not been fully argued and on the whole I prefer to base my decision on the ground that under the circumstances of the case no order under Section 106 is necessary. It seems to me that the punishment inflicted is quite sufficient under the circumstances of the case. I would, therefore, set aside the order under Section 106 and direct the bond to be cancelled.
14. I may add that the trial in this case was considerably protracted and some of the witnesses were examined and cross-examined at inordinate and unnecessary length. The arguments before us have shown that many unnecessary details elicited in the evidence have only tended to obscure the really relevant and important matter. I recognise that the length of the proceedings is due to a variety of causes, such as the nature of the case, the necessity of explaining the subject matter of the pamphlets written in Urdu including all the classical and personal references and the inability of the trial Court to spare more than two hours a day in the afternoon at each hearing, in view of the other work in that Court. Making due allowance for all these circumstances the arguments before us have left on my mind the impression that the length of the proceedings could have been and should have been appreciably reduced by the exercise of a more judicious control on the part of the Court over the proceedings before it consistently with the statutory rights of the parties to be heard and to examine and cross-examine witnesses under the Code of Criminal Procedure and the Indian Evidence Act and by a more active desire on the part of counsel on both sides to save the time of the Court by avoiding questions and arguments which could have at best a remote bearing on the points arising in the ease, and the omission whereof could involve no detriment to their respective cases.
15. The accused Mulla Rahimatalli appears to be a member of the Adamji Peerbhoy party which was excommunicated owing to disputes and litigation about June and July 1917 by the Head Mullaji Saheb from the Dawoodi Bohras, a section of Shia Mahomedans. The accused has been charged with having caused to be circulated an elegy in praise of one of the deceased excommunicants Sharafalli Mamooji who died in June 1918 and whose burial was carried out under the protection of a body of Pathans and a party of Police in the face of the opposition of the orthodox Dawoodi Bohras. The charge was that the elegy was really intended as an insult to the Head Mullaji Saheb who has his residence at Surat and was circulated with the knowledge that it would inflame the feelings of his followers among the Dawoodi Bohras in Bombay. The accused was also charged with having published about the same time an even more insulting and an obscene pamphlet called the Yazidki Id. These pamphlets were distributed about the 10th and 11th of July 1918 during the Ramzan Id amongst the orthodox Dawoodi Bohras in Bombay. These were followed a fortnight later by suits for damages aggregating a crore of rupees brought by the excommunicants against the Head Mullaji Saheb and they were met on the other side a fortnight later, viz., about the middle of August 1918 by the insulting and obscene pamphlets being placed in the hands of the police by the orthodox Dawoodi Bohras which led to an investigation being made by Superintendent Pettigara of the Criminal Investigation Department. This ended in the prosecution of Mulla Rahimtalli on the 21st of September 1918 for having given wanton provocation by the two pamphlets knowing that they would be likely to lead to a riot and with having in respect of the second pamphlet distributed an obscene document. He was convicted after a trial lasting nearly six months on the 1st of March 1919 and sentenced to fines amounting to Rs. 2,000 under Sections 153 and 292 of the Indian Penal Code. He was also bound over to keep the peace for one year under Section 106 of the Code of Criminal Procedure. The trial took place in the Court of the Second Presidency Magistrate, Bombay.
16. [After discussing the evidence his Lordship went on:] There seems to me therefore no good ground for differing from the view as to the responsibility of the Mulla for both the pamphlets taken by the learned Second Presidency Magistrate.
17. It has, however, been urged on behalf of the accused Mulla in this appeal that the elegy in praise of Sharafalli Mamooji was not really insulting to the Head Mullaji Saheb nor was it likely to provoke a riot among his followers of the Dawoodi Bohras of Bombay. It has been necessary therefore carefully to consider the whole pamphlet. The first 26 stanzas were restricted to a description of the good qualities of the deceased Sharafalli Mamooji. But the remaining stanzas Nos. 27 to 61 proceeded to deal with the circumstances of his death and funeral in a manner which could not fail to provoke resentment among the orthodox Dawoodi Bohras. These stanzas jeered at their failure to prevent the funeral and described with evident delight the successful ruse whereby the body was carried to the burial ground by motor and buried there notwithstanding the protests of the orthodox Dawoodi Bohras under the protection of a hired gang of Pathans and a powerful party of police. These stanzas then proceeded to liken the funeral of Sharafalli Mamooji to that of the Imam Hasan and the endeavours to prevent it to the opposition offered to that of the Imam Hasan by the followers of the hated Omayed Khalif Yazid. There then followed passages which were intended, in my opinion, to liken the Head Mullaji Saheb to Yajid and his followers to those of that hated Omayad Khalif. They were at all events so understood by the Dawoodi Bohras and there could hardly have been greater or more inflammatory insults thrown at the head and followers of a strict sect of Shia Mahomedans. It is necessary of course to take into consideration the whole pamphlet and not merely to look to passing references which might give no real indication of its true intention. But on the other hand it is equally necessary not to be misled by the length of perfectly unexceptional and proper passages into missing the sting, however short and pungent, lurking in the pamphlet. It seems to me so read that the real intention was not the innocent praise of the deceased Sharafalli Mamooji but that that was merely made a pretext for throwing a deep insult at the head of the Mullaji Saheb, an insult which the distributor must have known would be likely to inflame the feelings of his followers and to lead to riot. If the intention had been innocent, the pamphlet would have been circulated merely to the admirers of the deceased Sharafalli Mamooji among the friends of the Mulla and would not have been distributed just about the time of their Ramzan Id among the Dawoodi Bohras of Bombay. It has not seriously been contended here that the second pamphlet entitled Yazidki Id was unobjectionable. Great efforts were made to prove this at the trial. Five afternoons of the hearing were occupied over the evidence extending to twenty pages of typed foolscap of the Court Translator. Yet no better translation was produced by any other expert translator. It has been sufficient to peruse the pamphlet to become at once satisfied of its highly provocative nature and of its undoubtedly being a document which the distributor must have known would have been likely to lead to riot particularly when distributed about the time of their Ramzan Id among the Dawoodi Bohras of Bombay. It has been suggested that this could not have been so in the case of either of the pamphlets as no immediate riot occurred and as the community has long been known as one of quiet traders. It has, however, been indicated in the elegy on Sharafalli Mamooji that the seceders hired for their protection a body of Pathans and that the peace was kept at the funeral only by the presence of a party of police and it has been established by the evidence that great excitement was aroused among these quiet traders by the distribution of the pamphlets, particularly no doubt by that entitled Yazidki Id. They have no doubt long been known in ordinary life as quiet traders but they have also been known as fierce sectarians in religious matters and even at the time of the investigation some weeks later there was danger of rioting in the opinion of Superintendent Pettigara of the Criminal Investigation Department. It appears to me, therefore, that both the pamphlets have rightly been held to have been highly provocative and to have been distributed with the knowledge that they might lead to riot. The Mulla was, therefore, in my opinion, rightly convicted in respect of both the pamphlets under Section 153 of the Indian Penal Code by the learned 2nd Presidency Magistrate.
18. It has been urged on behalf of the accused Mulla in this appeal that the second pamphlet entitled Yazidki Id was in any case not obscene within the meaning of Section 292 of the Indian Penal Code. It has not been contended that it did not contain passages which were undoubtedly obscene in the ordinary meaning of the word that is to say, passages 'expressing or presenting to the mind or view something which delicacy, purity and decency forbid to be expressed or exposed' as given in Webster's Dictionary. But it has been urged that they were not obscene in the technical sense as they were not such as would have been likely to corrupt and deprave the minds that is to say inflame the sexual rather than the religious passions of the particular persons to whom they were distributed, viz., the orthodox Dawoodi Bohras and that they therefore were not within the word as understood by the Courts. But corruption and depravity of mind must in my opinion necessarily be encouraged by the employment of filthy language tending to debase the high purpose of the sexual relations even when used primarily to arouse religious passions. It would at the least provoke retort in similar terms and repetition of filthy language would necessarily lower the minds and standards of morality of even orthodox and respectable Dawoodi Bohras. The Mulla was therefore in my opinion rightly convicted in respect of the second pamphlet under Section 292 of the Indian Penal Code by the learned 2nd Presidency Magistrate.
19. It has lastly been urged on behalf of the accused in this appeal that no order could legally be made requiring security to keep the peace under Section 106 of the Criminal Procedure Code. It has no doubt been held but without reasons given in the case of Emperor v. Husain Bakhsh I.L.R(1907) 29 All. 569 that no such order would be proper on a conviction under Section 153 of the Indian Penal Code. But the point would appear to me not free from difficulty as the words used in Section 106 are 'offence involving a breach of the peace' and no definition has been gives of what would amount to a breach of the peace within the meaning of the Criminal Procedure Code. The words would probably be taken in their ordinary meaning to indicate an offence in which there had actually been and not in which there was mere likelihood of there being a breach of the peace such as the likelihood of riotin this particular example under Section 153, Indian Penal Code, but on the other hand the term 'breach of the peace' has been given a wide interpretation including even creating disturbance or excitement and falling far short of riot in England, according to the cases cited in note 9 to para 610 of Vol. IX of Halsbury's Laws of England. But it would appear to me undesirable to enter into this matter further in default of fuller discussion at the Bar and in default of any particular need for further maintaining the order which has been already in force for six months for the remainder of the year. It would, therefore, in my opinion, be sufficient, without finally deciding the legal point, to discharge as no longer necessary the security taken under Section 106 of the Criminal Procedure Code.
20. It has not been possible for me to my regret to share the opinion of the 1st pamphlet taken by my learned brother. It has moreover seemed necessary for me to express my own view emphatically in order to prevent the misapprehension that a man might be permitted to escape liability for deliberate libel or insult lurking in his publication by a simultaneous parade of a number of perfectly proper platitudes. It has seemed to me important to emphasize in view of the discussion that has taken place at the hearing that that has never been the law. But it has been fortunately unnecessary further to press this matter as there has been no difference of opinion whatever as to the 2nd pamphlet between myself and my learned brother. It has therefore practically been reduced to a question of punishment and it will be sufficient to reduce the fines inflicted for the offence in reference to the two pamphlets to the amount of Rs. 1000 inflicted in reference to the 2nd pamphlet. The conviction therefore should, in my opinion, be confirmed but the sentence reduced to Rs. 1000 fine in respect of the two pamphlets together under Sections 153 and 292, Indian Penal Code. There should in my opinion be a discharge of the order for security under Section 106, Criminal Procedure Code. The difference of the fines, if paid, should be refunded under the order of the 2nd Presidency Magistrate.
21. It seems to me desirable to add a few words on the length of the trial. It has already been noticed that the principal witness Saiyad Zainu was under examination for five afternoons and that his deposition extended to thirty-two pages of typed foolscap. The witness Ramchandra of the Shri Ram Press was under examination for three afternoons and his deposition extended to eight pages of typed foolcap, while the Court Translator was under examination for five afternoons and his deposition extended to twenty pages of typed foolscap. The counsel for the prosecution took five afternoons to sum up. There were in all forty-eight afternoon hearings spread over a period of nearly six months in the 2nd Presidency Magistrate's Court. It has already been indicated that the principal question was whether the Mulla was responsible for the distribution of the pamphlets. There was also the question whether they were objectionable, but that was mainly a matter of opinion upon perusal and though a different view has been taken of one pamphlet by my learned brother, the objectionable nature of the other pamphlet has not even been disputed in this Court. There has, in my opinion, been an altogether unreasonable appropriation by the parties in this matter of the public time of the Magistrate which ought never to have been permitted either by the gentlemen at the Bar or the Bench. Counsel must exercise their right of audience in a reasonable manner. They have their obligations no less than their privileges. They have no right of unlimited argument or examination of witnesses but only so much as would be reasonably necessary in the particular matter. So it has been laid down that civil pleadings should be as brief as possible and prolixity or undue length and verbosity would be liable to be prevented by the Bench by virtue of the inherent jurisdiction of the Court as indicated in para 629 of Vol. VII and paras 857 and 880 of Vol. XXII of Halsbury's Laws of England. It is true that this jurisdiction should be exercised with the greatest care particularly in criminal cases and only when plainly needed. Much must depend on the good sense of the Bar and of the Bench. But the limits of reasonable argument and examination of witnesses had in my opinion clearly been exceeded by both parties in this particular matter. It had therefore become in my opinion the duty of the Magistrate to stop it in the exercise of his inherent jurisdiction to prevent abuse of the process that is the proceedings of his Court. It has been observed that there were forty-eight afternoon hearings. If it had been possible to have had full day hearings, it would no doubt have greatly reduced the length of this protracted six months' trial. But it has been understood that that was not possible with the existing number of Magistrates. It has also not escaped our notice that every effort was made by the Second Presidency Magistrate to hear the matter de die in diem and to follow in this respect the directions of this Court.