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Kidar Nath S/O Siri Ram Vs. the Crown - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana
Decided On
Judge
Reported in1949CriLJ756
AppellantKidar Nath S/O Siri Ram
RespondentThe Crown
Cases Referred and Prithvi Dass Sharma v. Emperor A.I.R.
Excerpt:
.....the public good. it is only in exceptional circumstances that the powers conferred by the indian press (emergency powers) act should be-invoked. ordinarily, the safety of the state and the individual can very well be preserved by taking action against the offender under the ordinary law of the land. i have already stated above that one of the principles which must be observed in dealing with oases of this type is that the law as it exists must be administered, but it must nevertheless be remembered that where the law confers extraordinary powers on a member of the-executive and where such powers are liable to be abused the courts mast safeguard the interests-of the subject by placing as liberal an interpretation upon the law as is consistent with justice and good conscience. 882 it was..........east punjab government to deposit a sum of rs. 8,000 as security under section 3, sub-section (8), press (emergency powerb) act on account of the publication of an article 'yeh kaun aya hai' in the 'weekly insaf of 4th august 1948. it was alleged that this article contained matter which 'tends directly or indirectly to bring into hatred or contempt the government established by law or to excite disaffection towards the said government' within the meaning of clause (d), sub-section (l) of section 4, indian press (emergency powers) act. the petitioner has moved this court for the cancellation of the order of the punjab government.2. the learned counsel for the petitioner raised three points before us. he argued in the first place that incitement to violence was an essential ingredient of.....
Judgment:

Khosla, J.

1. This is a petition under a. 23, Press (Emergency Powers) Act, XXIII [23] of 1981. The petitioner before us is Shree Kidar Nath, the keeper of the Press known as the Printers Ltd., of Ambala Cantonment. He was ordered by the East Punjab Government to deposit a sum of Rs. 8,000 as security under Section 3, Sub-section (8), Press (Emergency PowerB) Act on account of the publication of an article 'Yeh kaun aya hai' in the 'Weekly Insaf of 4th August 1948. It was alleged that this article contained matter which 'tends directly or indirectly to bring into hatred or contempt the Government established by law or to excite disaffection towards the said Government' within the meaning of clause (d), Sub-section (l) of Section 4, Indian Press (Emergency Powers) Act. The petitioner has moved this Court for the cancellation of the order of the Punjab Government.

2. The learned Counsel for the petitioner raised three points before us. He argued in the first place that incitement to violence was an essential ingredient of the offence contemplated by the provisions of Section 4 and that unless the published matter contained a direct incitement to violence no order for the deposit of security under Sub-section (8) of Section 3, could be passed.

3. In the second place, it was argued that the article contained at worst an attack on the East Punjab Ministry and that an attack on the Ministry was not the same thing as an attack on the Government as established by law. Therefore, be it was argued before us, any matter tending to bring the Ministry into contempt or hatred or tending to excite disaffection towards the Ministry could not come within the mischief of Section 4 (l) (d).

4. Lastly, it was argued on behalf of the petitioner that the article was a very mild and justifiable criticism of the manner in which the Ministry of the East Punjab were conducting themselves in dealing with the question of refugees and that there was nothing in the article which could be said to excite disaffection to-wards the Ministers or to bring them into hatred or contempt.

5. With regard to the first point counsel for the petitioner drew our attention to Niharendu Butt v. Emperor A.I.R. (29) 1942 F. C. 22 : 43 cr. L. J. 604 and Emperor v. Sadashiv Narayan A.I.R. (31) 194 Bom. 255 : 46 Cr, L.J. 113. Both these cases arose out of offences committed against Rule 36 (6) (d), Defence of India Rules. The wording of this rule, however, is similar to the wording of Section 4 (l) (d), PresS (Emergency Powers) Act and counsel for the petitioner contended that the principle laid down in these two rulings must apply to the case before us. In the Bombay case, it was held that

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. Where the leaflet contains no words of actual incitement to violence nor does it contain any words which would create a reasonable anticipation or likelihood of violence, though 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, the accused is not guilty under E. 34 (6) (e).

6. Gwyer C. J. observed in Niharendu Dutt v. Emperor A.I.R. (29) 1942 F.C. 22 : 48 Cr.L.J. 504:

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.

7. It is to be observed that there is no mention of any intention to incite violence in the words of Section 4 (l) (d), Press (Emergency Powers) Act. Upon a plain construction of el. (d), any article that tends to bring into hatred or con-tempt Government established by law is objectionable. This view was taken in Nagpur Times v. Emperor A.I.R. (31) 1944 Nag. 178 : 45 or. L.J. 657S.B.a casein which Clause(d) was adopted. The learned Judges of the Nagpur High Court observed:

The words complained of need not necessarily incite to immediate disorder, and words which deliberately create or tend to create hatred and contempt for the Government may be the prelude to public disorder. The order passed by the Provincial Government is not a punishment such as is provided in the Penal Code or by B. 38, Defence of India Bales, but a precautionary measure.

The wording of Clause (d) again came up for consideration before the Nagpur High Court in Bhagwati Char an v. Provincial Government, G.P. & Berar A.I.R. (34) 1947 Nag. l : 47 Cr. L. J. 994 (S.B.) and the Federal Court decision in Niharendu Dutt v. Emperor A. I. R. (29) 1942 F. C. 22 : 43 Cr.L.J. 604 was considered. The learned Judges of the Nagpur High Court did not give a specific decision on the question whether incitement to violence was an essential ingredient. A reference was made to a Privy Council decision reported a3 Wallace Johnson v. The King 1940 A.O. 231 : 1940-1 ALL. E. B 241 which was directly in conflict with the decision of the Federal Court. The matter was disposed of by suggesting that the Federal Court did not intend to lay down that incitement to violence is an essential ingredient of the offence punishable under Rule 34 (b), Defence of India Rules. The following-passage may be quoted from the judgment of the Nagpur High Court:

It was argued that the Federal Court has laid down in the ruling cited, that an incitement to violence is a necessary ingredient of the law of sedition, whereas the Privy Council has held otherwise in Wallaee Johnson v. The King (1940) 1 All. B. B. 241 : 1940 A, C. 231. Now if there is conflict between the Federal Court and the Judicial committee In a case not arising from India, it is moot question whether the Indian High Courts are not bound to follow I he Federal Court. This is particularly so when the law which the Privy Council was considering in the Gold Coast case differs on a vital point from what we conceive to be the law in India... We doubt, however, whether that is what the Federal Court meant.

8. The Privy Council case arose out of an offence against the law of sedition committed in the Gold Coast of Africa. Seditious intention is defined in the Gold Goast Law as an intention

to bring into hatred or contempt or to excito disaffection against...the Government of the Gold Coast as by law established.

Their Lordships of the Privy Council held that incitement to violence is not a necessary ingredient of the crime of sedition, as defined by the Gold Coast law. This decision o the Privy Council is binding on us. I would hold therefore that incitement to violence is not necessary before action can be taken under Section 3 (3), Indian Press (Emergency Powers) Act.

9. The second point for decision is whether an attack on the Ministry can be said to be an attack on Government. It was not argued be-fore us that the Ministers constitute a class of His Majesty's subjects and the contention of the learned Advocate-General was that the Ministers or Ministry as a whole constitute Govern. ment as established by law and that for this reason any matter which tends to bring the Ministry into hatred or contemp comes within the mischief of Section 4 (l) (d). Counsel for the petitioner relied on Parkash Chand v, Emperor I. L. R. (1937) 18 Lah. 445 : A.I.R. (24) 1937 Lah. 613 : 38 cr. L. J, 893 8. R. and Emperor v. Hemendra Prasad A.I.R. (26) 1939 cal. 529 : 40 cr. L, j, 782 S. B. The latter ruling in so far as it supports the contention of learned Counsel for the petitioner was overruled by a decision of their Lordships of the Privy Council in Emperor v. Sibnath Banerji A.I.R. (32) 1946 P. O. 166 : I. L. R. (1945) Kar. P. C. 371. The learned Advocate General on the other hand relied on a decision of the Privy Council case and two other cases reported as Bhagwati Gharan v. Provincial Govt., C. P, & Berar A.I.R. (34) 1947 Nag. 1 : 47 Cr. L. J. 994 S. B. and In the matter of Zamindar Newspaper Lahore 35 p. L. B, 40 : A.I.R. (21) 1934 Lab. 219 : 35 Or. L. J. 966 B.B. The Nagpur case stated above arose out of an order passed under Section 3 (3), Press (Emergency Powers) Act and the question of what constitutes Government came up for consideration. Pollock J. observed:

Government as defined in Section 17, Penal Code, denotes more than the Governor or his advisers. It denotes the person or persons authorised by law to administer executive Government in any part of British India.

An 'attack on the Magistrates, Police and soldiers would be an attack on the Government.' In the Lahore case, the paper 'zamindar' contained an article attacking the police force and it was held that to bring the police into contempt was equivalent to bring the Government into eon. tempt. In Emperor v. Shibnath Banerji A.I.R. (82) 1945 P. 0. 186 : I. L. B. (1946) Ear. P. C. 371 it was held that as the Home Minister is an officer subordinate to the Governor within the meaning of Section 41(l), Government of India Act, the satisfaction of the Home Minister was equivalent to the satisfaction of the Government. The learned Advocate. General took us through the provisions of the Government of India Act as amended by the India (Provisional Constitution) Order 1947. He pointed out that the Ministers now exercise much wider powers than before 15th August 1947 and that the discretion of the Governor had been entirely taken away. He was obliged to allot all the business of Government to his Ministers. He himself had no power in the administrative field and since to defame any section of the Executive was to defame the Government, an attack on the Ministry was an attack on the Government as established by law. There is considerable force in this contention, and following the decision of the Privy Council in Emperor v. Sibnath Banerji A. I. R. (32) 1945 P. C, 156 : I. L. R. (1945) Ear. P.O. 371 and the two oases from Nagpur and Lahore, I would fold that to bring the Ministry into hatred or contempt is the same thing as bringing into hatred or contempt Government as established by law.

10. I now proceed to consider the contents of the article itself. But before taking up the passages to which our particular attention was drawn by the learned Advocate. General it is necessary to state one or two general principles which have been recognised in a long series of decisions. In the first place, an article does not stand on the same footing as an impassioned speech delivered to an excitable audience of illiterate individuals who may be easily aroused into breaking the peace or creating a disturbance. An article published in a periodical is intended to be read by educated persons. Such an article is most probably read in the quiet seclusion of the home rather than in the emotional surroundings of a large crowd. The reader examines the article in the cold light of reason and is affected by it much less than the audience of a passionate speaker. In the second place, the article must be read as a whole and even if one or two sentences or a passage in it is couched in objectionable language, it may be that the rest of the article tones down this particular passage and the general effect is not so mischievous, A passage divorced from its context may well be misunderstood and found to be objectionable. Therefore the trend of the entire article must be considered as a whole. Again, the law of sedition and the provisions of the Press (Emergency Powers) Act are in their nature penal and they must therefore be construed liberally and must not be allowed to trespass on the liberty of the individual. Every man has a right to criticise those in authority and the right of free speech is a right which must be jealously defended by the Law Courts. The extent to which the Government can be criticised will depend on a number of circumstances. Daring a period of emergency such as a war, irresponsible utterances may create far more mischief than during peace time when greater latitude must be allowed to the subject in such matters. Also notions of liberty and the conception of what sedition is have been changing from time to time. The modern world attaches far more importance to the right of free speech than was available to the subject a few decades ago. Lastly, consistently with this right the law must be administered as it exists. A Court of Law will not refuse to administer a certain law even if it appears to be harsh and unjust.

11. These principles were recognised in Man-mohan Ghose v. Emperor 88 Cal. 253 : S I. C. 531, Bagwati Gharan v. Provincial Govt. C. P. & Berar A.I.R. (34) 1947 Nag. : 47 or, L. J. 994 s. B., Prithvi Das Sharma v. Emperor A.I.R. (18) 1931 Lah. 283 : 32 Cr.L. J. 997 S.B., U Damadaya v. King-Emperor l Bang. 211 : A.I.R. (10) 1923 Bang. 212 : 24 Cr-L. J. 842, Des Raj v. Emperor 1511. 0. 948 : A.I.R. (21) 1934 LAh. 264: 35 Or. L. J. 1447 and several other cases.

12. The passages to which objection has been taken by the learned Advocate-General are these:

1. You are officers with authority and they are merely the sacrificial goats of you comforts.

2. You have been made rulers today. Do you know for whose sake you have been placed on this throne? for the sake of the Congress. It is the Congress who has pampered you. It is the Congress who has given you this honour, otherwise you were not worth a kauri.

3. Ungrateful ones, after gaining power, you have by your lack of integrity and ability brought dishonour not only upon yourself but also upon the Congress by falling a prey to the spirit of partizanship and selfishness which has proved destructive of whole races and countries.

4. I shall not permit the yoke of slavery to be placed round the neck of the goddess of freedom as a result of your ill deeds.

13. The Advocate-General contended that these passages were couched in language which tended to bring the Ministry into contempt or hatred.

14. A reading of the whole article shows that it is intended to point out the sloth and inactivity of the East Punjab Ministry in dealing with the question of refugees. The writer makes use of a good deal of metaphorical and flowery language in expressing the purport of what he has to say. For instance, he begins by saying: 'who is knocking at the door? Who is ringing the staple? Who is calling out? Who is disturbing our sleep by raising cries?' The writer goes on to Bay that it is he, the editor of the Insaf who is knocking at the door of the Ministers and trying to awaken their minds to a sense of duty towards the refugees who are suffering great hardships. The writer points out that the Ministers are living in ease and comfort whereas the refugees lie in the open exposed to the anger of the elements. The writer then says that the Ministers have attained their present position because they are members of the Indian National Congress and not because of their intrinsic worth. He then tells the Ministers that he will not allow them to sleep and will not let them enslave their country once again. The writer concludes with the following words:

Wake up Ministers wake up. Wake up ye rich men wake up. Wake up and present your-self in the Court of Justice.' The four passages quoted above show a certain lack of good taste in the language employed and also show that the petitioner is making use of somewhat unrestrained language in order to drive his message home to the reader.

15. I have read the whole article several limes very carefully and I cannot find in it anything which would come within the mischief of clause (d), S. i, Sub-section (l), Press (Emergency Powers) Act. The article is certainly not in good taste. It is not expressed in dignified language and is nothing more than cheap journalese. It is the sort of article found in papers of this type. Such articles have been published from time immemorial and they have aroused nothing more than silent approval on the part of the regular subscribers and nothing more than an amused contempt in the mind of the intelligent reader. I do not think any of these passages can be said to bring the Ministers into hatred or contempt in the sense in which these words have been interpreted in a large number of cases. To say about a person that he is not worth a penny does bring him down in the estimation of the reader or the listener but these words do not affect the emotions so violently as to arouse feelings of contempt and hatred. A reading of the cases in which this question came up for consideration will show that words far more violent in a critical context were held not to be actionable.

16. A consideration of the English law on the subject will not be without profit. It was held in B. v. Sullivan (1868) u cox c. c. at p. 50:

There is no sedition in censuring the servants the Crown, or in just criticism on the administration of the law, or in seeking redress ( grievances, or in the fair discussion of all party questions.

17. In B. v. Beeves 26 How. St. Tr. at p. 692 Lord Kenyon, C. J., observed:

The jury should, in every case, consider the book or newspaper article as a whole, and in a fair, free and liberal spirit, not dwelling too much upon isolated-paseages, or upon a strong word here or there, which may be qualified by the context, but endeavouring to gather the general effect which the whole composition would have on the minds of the public. Considerable latitude must be given to political writers.

In R. v. Sullivan (1868), 11 cox c. c. at pp. B3, 67 it was held:

A journalist may (and Indeed it is his duty) canvass and censure the acts of the Government and their public policy. It might be the province of the press to call attention to the weakness or imbecility of a Government when it was done for the public good.

18. The definition of 'sedition' in India is largely based on the conception of the English: law on the subject and it is, therefore, relevant to consider that in England a great deal of latitude is allowed to journalists in publishing criticism of the Government and the Ministers. To accuse the Ministers of imbecility was held not to be an offence. It will be placing unwarrantable restraints on the liberty of the press if a more stringent view of the matter is taken in India. This is all the more important since the attainment of independence; and the public and the press must be allowed considerable latitude in expressing themselves and in criticising the acts of the Government in order to redress the grievances of the public. It is only in exceptional circumstances that the powers conferred by the Indian Press (Emergency Powers) Act should be-invoked. Ordinarily, the safety of the State and the individual can very well be preserved by taking action against the offender under the ordinary law of the land. By this I do not mean to imply that the Indian Press (Emergency Powers) Act should be treated as a dead letter. I have already stated above that one of the principles which must be observed in dealing with oases of this type is that the law as it exists must be administered, but it must nevertheless be remembered that where the law confers extraordinary powers on a member of the-Executive and where such powers are liable to be abused the Courts mast safeguard the interests-of the subject by placing as liberal an interpretation upon the law as is consistent with justice and good conscience.

19. We may now consider a few Indian eases-in which the definition of 'sedition' was considered and some oases arising out of action under Section 4, Press (Emergency Powers) Act. In Om Prakash v. The Grown 42 p. L. E. 882 it was held that mere violent criticism not in the best of taste of the present Ministry is not sedi tion. In Manomohan Ghose v. Emperor 38 cal. 253 : 8 I. C. 531, it was held that the measures of Government could be freely criticised:

It is not sedition for a writer to describe the Reform scheme as being monstrous and misbegotten, because it is not founded on democratic principles.

In Bhagwati Charan Shukla v. Provincial Government, C. P. & Berar A.I.R. (34) 1947 Nag. 1 : 47 or. L. J. 994 S. B., the following publication was held not to be actionable under 6. 4 (1). Press (Emergency Powers) Act:

YOUR VOTE

Three years of sufferings....

of brutal repression....

of killing, of shooting.

rapes, murders...

of ZULUMS..

On THEIR part...

of unshaken resolve.

of unqenchable enthusiasm...

on OUR part...

From thousand of graves the cry comes....

Remember 1942...

The Baptism of fire...

The man-made famine

Remember the dead, the murdered

Men, women and children.

Martyrs of 1942.

Shall their death be vain?

They call you

Do not betray them

Vote for Congress

Vote for SALWE AND GOLE.

This passage, it will be seen, is couched in much more violent language than the article under consideration.

20. The Federal Court considered a speech in Niharendu Dutt Majumdar v. Emperor A.I.R. (29) 1942 F. C. 22 : 43 Cr. L. J. 504; Gwyer C. J. observed as follows:

It is true that in the course of his observations the appellant indulged in a good deal of violent language and seems to have worked himself up to such a state of excitement that the sequence of his argument is in places very difficult to follow. The speech was, we feel bound to observe, a frothy and irresponsible performance, such as one would not have expected from a member of the Bengal Legislature; but in our opinion to describe it as an act of sedition is to do it too great honour.

These words might well describe the article in question.

21. On the other hand, we find that speeches and writings which have been held to be actionable are of a wholly different type. In re Pothan Joseph, 56 Bom. 472 : A.I.R. (19) 1983 Bom. 468: 33 Cr. L. J. 749 S. B),the Bombay High Court considered an article published in the 'Indian Daily Mail.' The article contained a violent attack on the magistracy and the Executive and it is clear that the article itself, In re S. S. Batliwala, A.I.R. (25) 1938 Mad. 768 : 39 or. L, j. 988) a speech, passages from which are quoted in the judgment was held to be seditious. A reading of these passages shows that the whole object of the speaker was to bring the Government into contempt. The speech was a passionate outpouring of anger against the Government and an incitement to revolt In Sachin Das v. Emperor 63 Cal. 588 : A.I.R.(23)1936 Cal. 524 : 37 Cr. L.J. 1077 the judges came the conclusion that the speech showed a sprit of revolt against the established Government and contained an intention to excite disaffection towards the Government by bringing it into hatred and contempt. The speech was held to be seditious' but this conclusion was based on the wording of the speech.

22. The learned Advocate.General also cited Bodh Raj v. The Crown 16 Lah. 270 : A.I.R. (22)1935 Lah. 338 : 36 Cr L. J. 971 (S. B.), in which the wording of Section 4 (l) (b), only was considered: Queen-Empress v. Amba Prasad 20 ALL. 55 : 1898 A. w. N. 1.F.B in which the offender had guilty to the charge of sedition and Prithvi Dass Sharma v. Emperor A.I.R. (18) 1931 Lah. 283 : 32 Cr. L. J. 997 F. B., in which the old Clause (d), and the present Clause (e), of Section 4 (l), came up for consideration. These authorities are not helpful in determining the case before us. In re 'India In Bondage,' 57 Cal. 1217 : A.I.R.(17) 1930 Cal. 244 F. B.), the extracts given in the judgment show that a sustained attempt to bring into hatred or contempt and to excite disaffection towards the form of Government established by law in British India was made and the writer was held to be guilty of sedition. The learned Advocate-General also drew our. attention to certain passages in the address made by Strachey j. to the jury in Queen.Empress, v. Bal Gangadhar Tilak 22 Bom. 112. These passages, however, do not contain any thing which would go to support the argument of the learned Advocate-General. Moreover a more liberal interpretation of the law relating to sedition and of the law relating to powers conferred by the Press (Emergency Powers) Act has been taken in recent years and the tendency of the Courts in more modern times has been to allow more latitude to the public platform and the press. In times of emergency such as the last war, no doubt, a more stringent view may be necessary but it has not been suggested that such an emergency existed at the time when the article was published. In fact, it will not be an exaggeration to gay that the writer's mode of expression excites contempt for himself rather than for the tended to bring into hatred or contempt the Government: The article is nothing more than Government established by law. The decision a piece of journalistic exhibitionism and does was based on the peculiar wording of the article not deserve the attention which has been bestowed upon it. The four passages to which exception has been taken by the learned Advocate- General are only an exaggerated complaint in which the inability of the Provincial Ministers to deal with the question of refugees has been dwelt upon. A publication of this type may well have been left alone to die a natural and well-deserved death of oblivion, and in proceeding against the petitioner the Provincial Executive has in my view betrayed a degree of sensitive-mesa not usually professed by an elected body anxious to retain popular support. I am dearly of the opinion that there is nothing in the article which would tend to bring into contempt or hatred the Ministers or the Government established by law, nor does it tend to create disaffection towards Government. The action of the Government in ordering the petitioner to deposit security is, therefore, wholly unjustified. I would accordingly allow this petition and set aside the order of the East Punjab Government. In the circumstances of the case I would make no order as to cost.

Ram Lall, C.J.

22. I agree.

Falshaw, J.

23. I agree.


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