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Emperor Vs. Sadashiv Narayan Bhalerao - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 363 of 1943
Judge
Reported inAIR1944Bom255; (1944)46BOMLR459
AppellantEmperor
RespondentSadashiv Narayan Bhalerao
DispositionAppeal dismissed
Excerpt:
defence of india rules, rule 34 (6)(e)-' prejudicial act '-indian penal code (act xlv of 1860), section 124a-sedition-cist of offence-incitement to violence-mere abusive words, not enough.;the gist of the offence of 'prejudicial act' under rule 34 (6)(e) of the defence of india rules, 1939, as also of the offence of ' sedition ' under section 124a of the indian penal code, 1860, is incitement to violence : mere abusive words are not enough.;nihmendu dutt majumdar v. the king emperor [1942] f.c.r. 38 followed. - - 38 that as there was nothing in the leaflet which would justify the inference that they were distributed by the accused in order to incite the public to disorder and since, according to the judgment of their lordships of the federal court 'public disorder, or the reasonable.....n.j. wadia, j.1. this is an appeal by the government of bombay against an order made by the first class magistrate, jalgaon city, acquitting the accused sadashiv narayan bhalerao. the accused had been charged under rule 38(5) of the defence of india rules, 1939, for having on january 26, 1943, made, published and distributed copies of a leaflet which contained prejudicial reports within the meaning of rule 34(7) read with rule 34(6)(e) and (g) of the defence of india rules, 1939.2. the accused admitted having published and distributed copies of the leaflet, but contended that in doing so he had committed no offence. he alleged that he had published the leaflet on behalf of the hindi communist party which had been making efforts to check the activities of fifth columnists in the country,.....
Judgment:

N.J. Wadia, J.

1. This is an appeal by the Government of Bombay against an order made by the First Class Magistrate, Jalgaon City, acquitting the accused Sadashiv Narayan Bhalerao. The accused had been charged under Rule 38(5) of the Defence of India Rules, 1939, for having on January 26, 1943, made, published and distributed copies of a leaflet which contained prejudicial reports within the meaning of Rule 34(7) read with Rule 34(6)(e) and (g) of the Defence of India Rules, 1939.

2. The accused admitted having published and distributed copies of the leaflet, but contended that in doing so he had committed no offence. He alleged that he had published the leaflet on behalf of the Hindi Communist Party which had been making efforts to check the activities of Fifth Columnists in the country, to dissuade people from committing acts of sabotage, to prevent antisocial activities such as hoarding of food-grains, and to urge the people to take part in the defence of the country against the Japanese.

3. The learned Magistrate after considering the passages in the leaflet, which were objected to by the prosecution, came to the conclusion that there were no words in the leaflet which amounted to incitement to or a suggestion to resort to the use of force or to incitement to public disorder, or which could be regarded as justifying a reasonable anticipation or likelihood of public disorder. He held, following the recent judgment of the Federal Court in Niharendu Dutt Majumdar v. The King Emperor [1942] F.C.R. 38 that as there was nothing in the leaflet which would justify the inference that they were distributed by the accused in order to incite the public to disorder and since, according to the judgment of their Lordships of the Federal Court 'public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence, and the acts or words complained of must either incite the disorder, or must be such as to satisfy reasonable men that that is their intention or tendency ', the accused had committed no offence under Rule 38 of the Defence of India Rules. He, therefore, acquitted the accused.

4. It has been contended before us by the learned Advocate General who appears for the Government of Bombay that it has been laid down by this Court, by other High Courts and by their Lordships of the Privy Council that incitement to violence is not a necessary ingredient of an offence under Section 124A of the Indian Penal Code, and that it is not therefore necessary to establish under that section or under Rule 38 that the words complained of were such as were likely to incite to disorder or create a reasonable anticipation or likelihood of such disorder.

5. Rule 34(6)(e) which defines the offence for which the accused is principally charged is in practically the same language as Section 124A of the Indian Penal Code, Section 124A runs as follows :

Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings oil attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, Her Majesty or the Crown Representative or the Government established by law in British India, or British Burma, shall be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

The first Explanation to the section says ' The expression ' disaffection' includes disloyalty and all feelings of enmity.' Rule 38(1) provides that no person shall, without lawful authority or excuse do any prejudicial act, and 'prejudicial act' is defined in Rule 34(6)(e) as any act which is intended or is likely to bring into hatred or contempt, or to excite disaffection towards, His Majesty or the Crown Representative or the Government established by law in British India or in any other part of His Majesty's dominions. The offences dealt with by the two provisions are therefore practically identical, and their Lordships of the Federal Court themselves emphasize this point. In the course of their judgment in dealing with 'prejudicial act' under Rule 34(6)(e) they say (p. 48):-

It will be observed that the first of these acts is described in precisely the same language as is used to describe the offence of sedition in Section 124A of the Indian Penal Code. We were invited to say that an offence described merely as a ' prejudicial act' in the Defence of India Rules ought to be regarded differently from an offence described as 'sedition' in the Code, even though the language describing the two things is the same. We cannot accept this argument. Sedition is none the less sedition because it is described by a less offensive name ; and in our opinion the law relating to the offence of sedition as defined in the Code is equally applicable to the prejudicial act defined in the Defence of India Rules. We do not think that the omission in the Rules of the three ' Explanations ' appended to the section of the Code affects the matter. These are added to remove any doubt as to the true meaning of the Legislature ; they do not add or subtract from the section itself ; and the words used in the Rules ought to be interpreted as if they had been explained in the same way.

6. The learned Advocate General has relied on certain decisions of this Court and of other High Courts and of the Privy Council as regards the interpretations, of Section 124AI of the Indian Penal Code in which it has been held that incitement to violence is not a necessary ingredient of an offence under that section. In Queen-Empress v. Bal Gangadhar Tilak I.L.R. (1897) 22 Bom. 112 Mr. Justice Strachey in his charge to the jury dealt with Section 124A as it stood at the time (1897) before the amendment made by Act IV of 1898. The section was as follows :

Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites or attempts to excite feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

7. Strachey J. said (p. 135) :

The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within Section 124A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope.' In this case an application for leave to appeal was made to the Privy Council and one of the grounds on which the leave to appeal was asked for was that the Judge had misdirected the jury as to the meaning of Section 124A : Bal Gangadhar Tilak v. Queen-Empress I.L.R. (1897) Bom. 528 One of the grounds urged in the argument of the learned Counsel who appeared for the petitioner was that the Judge had directed the jury that ' disaffection' meant ill-will in any form, to the Government, and had stated that he agreed with the definition given in Queen-Empress v. Jogendra Chunder Bose I.L.R. (1891) 19 Cal. 35 where the Chief Justice of Bengal had taken the word to mean the absence of affection. It was argued that this might vary in degree from indifference to extreme hostility, that the term was vague, and that the word ' sedition ' used in English law and explained as ' disloyalty in action' was more clear. In refusing to grant leave their Lordships of the Privy Council approved the charge delivered to the jury by Strachey J. and said that taking a view of the whole of the summing-up, which was at great length, there was nothing in that summing up which called upon them to indicate any dissent from it or necessity to correct what was therein contained.

8. In Mrs. Besant v. Emperor (1916) I.L.R. 39 Mad. 1085, S.B. which was a case Under Section. 3, 4, 17, 19, 20 and 22 of the Indian Press Act of 1910, the Madras High Court took the same view as regards the meaning of Section 4 of that Act, the language of which was very similar to the language used in Section 124A of the Indian Penal Code and Rule 34(6)(e) of the Defence of India Rules, Section 4 of the Indian Press Act of 1910 empowered the Local Government to make an order of forfeiture with regard to a press when it appeared to the Local Government that the press had been used for printing or publishing any newspaper containing any words

' which are likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication or otherwise-

(a) to incite...to any act of violence, or....

(c) to bring into hatred or contempt His Majesty or the Government established by law in British India...or any class or section of His Majesty's subjects in British India, or to excite disaffection towards His Majesty or the said Government ....or

(e) to encourage or incite any person to interfere with the administration of the law or with the maintenance of law and order,..

9. In this case it was contended that the words ' hatred and contempt' used in Section 4 of the Act mean only such hatred and contempt as would lead to the commission of the crimes referred to in the other clauses of the sub-section, namely, murder, violence, resistance to the law, intimidation of public servants and others. In dealing with this question Ayling J. referred to the charge of Strachey J. in Queen-Empress v. Bal Gangadhar Tilak, referred to above, and pointed out that that charge contained an exhaustive discussion of the law of sedition, and that he was selecting it and relying on it with more confidence because it was substantially approved by their Lordships of the Privy Council. This case went up in appeal to the Privy Council (Besant v. Advocate-General of Madras I.L.R. (1919) Mad. 146 : 21 Bom. L.R. 867 Their Lordships observed that though the language of Section 4 of the Indian Press Act, 1910, was not precisely the same as that of Section 124A of the Indian Penal Code, it was closely similar to the language of that section, and they pointed out that Section 124A of the Indian Penal Code had been,the subject of careful consideration in the case of Queen-Empress v. Bal Ganga-dhar Tilak I.L.R. (1897) Bom. 112 and in other cases.

10. The two decisions referred to above are fairly old, the decision in Tilak's case being of 1897 arid that in Mrs. Besant's case of 1919. The learned Advocate General also drew our attention to a more recent ruling of the Privy Council in Wallace-Johnson v. The King [1940] A.C. 231. That was a case from West Africa and dealt with the interpretation of Section 326 (later Section 330) of the Criminal Code, 1936, of the Gold Coast. The case turned on the meaning of the words ' seditious words or writing ' occurring in that section. Sub-section (8) of the section defined 'seditious intention' as an intention (1) to bring into hatred or contempt or to excite disaffection against the person of His Majesty, his heirs or successors or the Government of the Gold Coast as by law established, or... (4) to bring into hatred or contempt or to excite disaffection against the administration of justice in the Gold Coast, In interpreting these words their Lordships said (p. 240) :

Nowhere in the section is there anything to support the view that incitement to violence is a necessary ingredient of the crime of sedition. Violence may well be, and no doubt often is, the result of wild and ill-considered words, but the Code does not require proof from the words themselves of any intention to produce such a result, and their Lordships are unable to import words into Section 330 which would be necessary to support the appellant's argument.

11. The submission that there must be some intrinsic evidence of intention, outside the words themselves, before seditious intention can exist, must also fail, and for the same reason. If the words are seditious by reason of their expression of a seditious intention as defined in the section the seditious intention appears without any intrinsic evidence. The Legislature of the Colony might have defined ' seditious words' by reference to an intention proved by evidence of other words or acts. It is sufficient to say they have not done so.'

12. In the argument before their Lordships in this case it had been contended by counsel for the appellant that the prosecution could not succeed unless the words complained of were themselves of such a nature as to be likely to incite to violence and unless there was positive intrinsic evidence of seditious intention. In dealing with this contention their Lordships said (p. 239) :

The foundation for these submissions was sought in the summing up by Cave J. in Reg. v. Burns and Ors. (1886) 16 Cox 355 quoted at length in Russell on Crimes, 9th ed., vol. i, pp. 89-96. Reference was also made to a number of cases on the law of sedition in English and Scottish Courts, which, it was said, supported the statement of the law by Cave J. Their Lordships throw no doubt upon the authority of these decisions, and if this was a case arising in this country, they would feel it their duty to examine the decisions in order to test the submissions on behalf of the appellant. The present case, however, arose in the Gold Coast Colony.

After referring to the fact that there was a close correspondence on some points between the terms of the section in the Code and the statement of the English law of sedition by Stephen J. in the Digest of Criminal Law, 7th ed., Articles 123-126, quoted with approval by Cave J. in his summing-up in Reg. v. Burns, their Lordships said (p. 240):

The fact remains, however, that it is in the Criminal Code of the Gold Coast Colony, and not in English or Scottish cases, that the law of sedition for the Colony is to be found.

13. If we were to apply these principles to the case before us the accused's act in printing, publishing and distributing the leaflet would, in my opinion, amount to an offence under Rule 38. I agree with the learned Magistrate that the leaflet contains no words of actual incitement to violence, nor does it contain any words which would create a reasonable anticipation of likelihood of violence. But there are undoubtedly passages in the leaflet which hold up the Government to hatred or contempt by attributing to it various evils and misfortunes suffered by the people, by imputing to it base motives, and by accusing it of hostility or indifference to the welfare of the people.

14. In the judgment of the Federal Court, referred to above, however, a different view has been taken. Their Lordships have held that public disorder, or the reasonable anticipation or likelihood of public disorder is the gist of the offence under Rule 34(6)(e) and under Section 124A, and the acts or words complained of must either incite to disorder, or must be such as to satisfy reasonable men that that is their intention or tendency. Again in another passage in the judgment their Lordships say (p. 51) :

There is an English saying that hard words break no bones; and the wisdom of the common law has long refused to regard as actionable any words which, though strictly and literally defamatory, would be regarded by all reasonable men as no more than mere vulgar abuse. Abusive language, even when used about a Government, is not necessarily sedition, and there are certain words and phrases which have so long become the stock in trade of the demagogue as almost to have lost all real meaning... But we cannot regard the speech, taken as a whole, as inciting those who heard it, even though they cried ' shame, shame ' at intervals, to attempt by violence or by public disorder to subvert the Government for the time being established by law in Bengal or elsewhere in India.

Although in the report of the case heard by the Federal Court the judgments of the Privy Council, referred to by me above, have not been mentioned, either in the arguments or in the judgment of their Lordships, I presume that they were present to their minds, and in spite of this their Lordships have taken a different view holding that incitement to violence was the gist of the offence and mere abuse would not be enough.

15. The learned Advocate General asks us to hold that the view taken by the Federal Court is in conflict with the view expressed by the Privy Council on more than one occasion and is not therefore binding on us. I am not prepared to do so. Under Section 212 of the Government of India Act the decisions of the Federal Court are binding on us. The Privy Council decision in Tilak's case is more than forty-five years old, and that in Mrs. Besant's case twenty-three years old, and both of them do not deal with the Defence of India Rules with which we are concerned in this case; and although the decision in Wallace Johnson's case is a very recent one, that again is a decision on an entirely different Act and in a case arising in a different part of the Empire. The decision; of the Federal Court is on the very rule (34(6)), which we are asked to interpret, and was given after full consideration of the changes in the law of sedition which have taken place in the course of time. Although in the absence of the decision of the Federal Court I would have had no hesitation in holding that the Magistrate's view in this case was wrong, I am not prepared to say, as the learned Advocate General wants us to, that the decision of the Federal Court is not binding on us.

16. The accused had also been charged with having committed a prejudicial act within the meaning of Rule 34 (6)(g), that is by doing an act which was intended or likely to cause fear or alarm to the public or to any section of the public. The learned Magistrate has acquitted the accused on that charge also. The learned Advocate General has stated before us that the object of the Government appeal was to get the question of the proper interpretation to be put upon Rule 34(6)(e) decided and that he does not press the charge under Rule 34(6)(g).

17. The appeal must therefore be dismissed.

Weston, J.

18. The charge against the accused was that he made, published, and distributed copies of a certain leaflet, and thereby committed prejudicial acts as defined in Rule 34(6), Clauses (e) and (g), of the Defence of India Rules. That the accused made, published, and distributed the leaflets was not disputed, and the only question before the Magistrate was whether by so doing he committed prejudicial acts. The Magistrate did not consider the charge in relation to Clause (g) of Rule 34(6), as, he says, the Police Prosecutor did not point out to him any authority covering the point. On the charge in relation to Clause (e) he relied upon a recent decision of the Federal Court, Niharendu Dutt Majumdar v. The King Emperor [1942] F.C.R. 38 also a case of prejudicial act under Clause (e), where, after pointing out that Clause (e) of Rule 34(6) describes prejudicial act in precisely the same language as is used to describe the offence of sedition in Section 124A of the Indian Penal Code, it was observed that the law relating to the offence of sedition as defined in the Code is equally applicable to the prejudicial act defined in the Defence of India Rules; and, after discussion of general principles underlying the offence of sedition with reference to certain English cases, it was said (p. 50) :-

Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.

19. The learned Magistrate, after quoting the above passage from the report of the Federal Court decision, went on to hold that the leaflet complained of was not so worded as to incite the public to disorder. He considered, reading the pamphlet as a whole, the intention of the writer to have been ' to achieve national unity for the better defence of India'. He held therefore that he had no alternative but to acquit the accused, and he acquitted him accordingly. Government have now appealed against the acquittal.

20. The learned Advocate General states that he does not wish to rest his case under Clause (g) of Rule 34(6), although he does not concede that this clause is necessarily inapplicable. He urges that, on the wording of the leaflet, it falls clearly within the mischief of Clause (c), as its publication, in the words of this clause, 'is likely to bring into hatred orcontempt-the Government established by law in British India.'

21. Apart from authority I should have no hesitation in accepting this contention. Reading the leaflet, I am unable to agree with the learned Magistrate that the intention of the writer was ' only to achieve national unity for the better defence of India.' It is true that this is one of the intentions expressed in the leaflet, but intention is not necessarily single. As has been said, a man may speak with two voices, and when two messages appear in a public utterance, it is no answer to a charge of harmfulness against the one, that the other is innocuous. From the present leaflet I think a reader who is prepared to give it attention will gather two impressions. The first is that Government, termed the ' Imperialists', has been unjust and oppressive, is attempting for its own purposes to create disunion among the people, is incompetent to defend India, and is responsible that ' the blood of the great patriots was spilt'. It is true the fact that blood was ' spilt' when the patriots were attempting crimes of violence does appear in the pamphlet, and, although these crimes are not condemned, the second message of the pamphlet appears to be that acts of sabotage are mistakes. But it seems to me unlikely that the second message and the somewhat indefinite exhortation that ' every patriot must discharge his great responsibility and should fall in line with the march for the worldfreedom...will cause in the mind of the reader an impression comparable with that made by the first part of the pamphlet. In any case I think the second impression will be distinct from the first.

22. But if the leaflet is considered in the light of the Federal Court decision in Majumdar's case, whether it contains incitement to disorder or whether it tends to incite to disorder, I think the finding must be in favour pf the accused. There is no express incitement to disorder, and in fact present disorder is deprecated. I understand a tendency to incite to disorder to mean that there is a reasonable possibility that disorder will result from the act itself without further stimulus or further act on the part of the accused or of any person, and I do not think that this tendency can fairly be attributed to the pamphlet. It does, in my opinion, tend to create a general feeling of hatred and contempt for Government in the minds of its readers, and this feeling, on further provocation, might well express itself in public disorder. But I do not think it does more than this. On the authority of the Federal Court therefore the decision of the learned Magistrate seems to me to be correct.

23. It is urged, however, by the Advocate General that we are not bound by this decision; for, he maintains, it is in conflict with decisions of the Privy Council, which lay down or approve the principle that the definition of sedition in the Indian Penal Code makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any cause of action, such as rebellion or forcible resistance, the test of guilt; and he refers to the charge delivered by Strachey J. in Tilak's case I.L.R. (1897) Bom. 112 which was approved by the Privy Council in the appeal filed (see p. 532 of the same volume) and also in Mrs. Besant's case I.L.R. (1919) Mad.163 : 21 Bom. L.R. 867, P.C.. The learned Advocate General has also referred to a more recent decision of the Privy Council, Wallace-Johnson v. The King [1940] A.C. 231 This was not a case from India but from the Gold Coast, but their Lordships, when interpreting seditious intention, defined as an intention to bring into hatred or contempt the Government of the Gold Coast as by law established, held these words to be clear and unambiguous and observed (p. 240) :-

There is a close correspondence at some points between the terms of the section in the Code and the statement of the English law of sedition by Stephen J. in the Digest of Criminal Law, 7th ed., Articles 123-126, quoted with approval by Cave J. in his summing up in Reg. v. Burns and Ors. (1886) 16 Cox 355, 359-60. The fact remains, however, that it is in the Criminal Code of the Gold Coast Colony, and not in English or Scottish cases, that the law of sedition for the Colony is to be found.

And later after setting out the definition of ' seditious intention ' (p. 240):-

Nowhere in the section is there anything to support the view that incitement to violence is a necessary ingredient of the crime of sedition. Violence may well be, and no doubt often is, the result of wild and ill-considered words, but the Code does not require proof from the words themselves of any intention to produce such a result.

24. No reference appears to these decisions in the judgment of the Federal Court in Majumdar's case as reported.

25. The learned Advocate General, while conceding that under Section 212 of the Government of India Act the law declared by the Federal Court is binding upon us, points Out that under the same section the law declared by any judgment of the Privy Council is binding upon us. He claims that when conflict exists, as he says it exists on the meaning of sedition, between the law declared by the Federal Court and by the Privy Council, it is the decision of the Privy Council, to which in certain circumstances appeal lies from the Federal Court, by which we should consider ourselves bound.

26. I can see neither advantage nor propriety in embarking upon a critical comparison of the decision of the Federal Court with those of the Privy Council. If these decisions are at variance, resolution of the conflict lies with one or other of those tribunals. Whereas here the latest pronouncement is that of the Federal Court, and this pronouncement is exactly in point on the facts of the present case, I think our duty lies in following this pronouncement.

27. I think therefore the Magistrate was right in his conclusion and that the appeal must be dismissed.

28. The learned Advocate General has asked us to certify for the purpose of Section 205 of the Government of India Act that the case does not involve a substantial question of law as to the interpretation of the Government of India Act or any order in Council made thereunder. We certify that the case does not involve any such question.


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