1. I deferred my ruling yesterday about the admissibility of the document (Exhibit K in the Magistrate's 1927 Court) until I had time to read it and consider the arguments addressed to me. I have carefully read it. This is not the proper stage at which to discuss it in detail; and I think it suffices to say that, in my opinion, some of its contents are such that the prosecution can reasonably rely on them as evidence of intention regarding the charge against the accused. The fact of this document being, according to evidence in Court, in the handwriting of the accused and found in his possession on September 9, 1927, if it does contain evidence of intention such as I have mentioned-is undoubtedly a fact which shows the existence of a state of mind, viz., the accused's intention, within the meaning of Section 14 of the Indian Evidence Act. That is going primarily upon the plain wording of the section, but I will consider the objections that have been fairly put before me by Mr. Talyarkhan.
2. He says, first of all, that there is no connection shown between this document and the pamphlet (Exhibit F). But, it is not, in my opinion, necessary to show that there is a definite connection between a writing that may be evidence of intention, and the particular writing, which is the subject matter of the charge. The main question is whether the writing that is sought to be put in as evidence of intention does, in fact, contain matter which supports the contention that such intention is thereby shown. Take, for instance, the precedent in this Court of the post-card that was found in the accused's possession in the second Tilak trial before Mr. Justice Davar; that is the case of Emperor v. B.G. Tilake : (1908)10BOMLR848 . In that case Mr. Justice Davar admitted the post-card as admissible evidence although there was no direct connection between the contents of that post-card and the subject matter of the charge, except in the sense, that it might be contended that the post-card contained evidence of his intention in regard to the writing about which the charge was made. At the same time, I do not mean to say I am deciding as to the weight to be attached to this document in this case. It is, of course, open to the defence to argue, if they can, that in the circumstances of the case and having regard to its other contents and so on, no weight should be attached to it, and that it does not really constitute evidence of the alleged intention of the accused. Thus, in regard to the particular post card that I have already mentioned, I see from the report at page 898 that Mr. Justice Davar told the gentlemen of the jury that, in his opinion, it was not a piece of evidence which should affect their minds. That is, of course, a different question. I am only deciding in favour of its admissibility as a piece of evidence which can be shown to the jury and arguments based upon it.
3. Then, the second objection raised was based on ill. (e) to Section 14 of the Indian Evidence Act, which is the one most nearly allied to the particular case that I am considering. It refers to 'previous publications 'as being relevant in a libel case, whereas this particular document was not published but was merely found in the possession of the accused. Similarly, I may refer also to ill. (j) which runs:-
A is charged with sanding threatening letters to B, Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.
4. On the other hand, ill. (m) does not insist on any such priority. It runs as follows-
The question is, what wag the state of A's health at the time an assurance on his life was effected.
Statements made by A as to the state of his health at or near the time in question are relevant facts.
5. There, the test is merely proximity of time, and not priority. The ordinary rule is that illustrations cannot control the general words of a section, and, certainly, there is nothing in the section itself to show that the statements relied upon should have been made previously and cannot ever be put in evidence, if they are made after the particular occurrence, that is the subject matter of the charge. In fact, I find that subsequent statements have been admitted in similar cases. Thus, in Queen-Empress v. Jogendra Chunder Bose I.L.R (1891) Cal. 35, which was one of the earliest sedition trials in Bengal, and where the accused was charged in regard to some articles he had published, the Court allowed other subsequent articles to be put in evidence. The point has been discussed in another sedition case from Madras, viz., Chidambaram Pillai v. Emperor I.L.R (1908) Mad. 314, and there it will be found that even a statement that the accused had made after he had been placed before the Committing Magistrate was considered to be admissible evidence of intention under this Section 14. When the accused in that case was before the Magistrate he, first of all, said that he did not wish to make any statement, but on the following day he made a statement to the Superintendent of the District Jail and asked that it might be placed on record. That statement was forwarded to the Magistrate and a question was raised whether that was admissible as evidence of intention relevant to a charge under Section 124A of the Indian Penal Code. The Court considered the various cases on the subject and held that it was admissible. Similarly, in the Allahabad case in Queen-Empress v. Amba Prasad I.L.R (1897) All. 55, f. b, the passage, in which Sir John Edge has referred to this point, certainly makes no limitation in regard to this point of time or as to publication. He says (p. 69):-
The intention of a 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.
6. There the case of 'writer' and 'written' is opposed to a case where there may have been something spoken or something published. If this were a trial of the printer or publisher, and something were tendered in evidence as to what that printer or publisher had written, then it might be a good objection that it had not been printed or published. But, here, the actual writer of the pamphlet is being tried and the question of publication is not of such materiality. Primarily, anything he has written is, if it comes within the general words of Section 14, relevant and admissible. At the same time, of course, the writing should be within a reasonable time of the particular occurrence, i. e., the particular article or other document, in respect of which he is being charged. In this case the accused is shown to have come to Bombay in December 1926. The publication of the pamphlet took place sometime in June 1927 and this document was found in accused's possession in the beginning of September 1927. There is, in my opinion, clear scope for saying that this document must have been written within a few months of the publication, and therefore that there is no bar due to the time at which this document came into existence. Accordingly, in my opinion, these objections are not sufficient, and I allow the document to be put in evidence.