1. The petitioner was the first accused in the case tried by the learned 4th Presidency Magistrate, Madras. The case against him was that at 4 A.M. on the 5th April, 1932, he instigated the 2nd accused to paint on the surface of the road the words ' Boycott British goods'. In consequence of his abetment, and in his presence, accused 2 painted the word ' Boycott' on the road, and then was arrested by a Head Constable of the C.I.D. He has been convicted of offences punishable under Section 17(1) of the Criminal Law Amendment Act (XIV of 1908) and under Section 18(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931), and has been sentenced for each offence to six months' rigorous imprisonment and a fine of Rs. 100, the sentences to run concurrently.
2. It is contended in the first place that on the facts found the petitioner could only have been found guilty of abetment of the offences if any committed by the second accused. He was not charged with abetment, but with the actual offences. Hence, it is contended, the convictions cannot be maintained. This argument is unsound. Section 114, Indian Penal Code, provides that whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. It follows that if the act of the second accused, committed in consequence of the abetment of the petitioner, amounts to the offences charged, the petitioner also must be deemed to have committed the same offences. There is therefore no illegality in the charge, and the convictions cannot be set aside on this ground.
3. The next contention is that that facts found proved do not amount to an offence under Section 18(1) of the Indian Press (Emergency Powers) Act. That section reads as follows (omitting the words which are unimportant in this case):
Whoever makes...any unauthorised news-sheetshall be punishable with imprisonment which may extend to six months, or with fine, or with both.
4. The learned Presidency Magistrate has held that painting the words ' Boycott British goods ' on the surface of a public road amounts to the making of an unauthorised news-sheet. 'News-sheet' is defined in Section 2(6) as meaning ' any document other than a newspaper containing public news or comments on public news or any matter described in Sub-section (1) of Section 4'. 'Documents' in Section 2(2) is said to include also 'any painting, drawing or photograph or other visible representation'. It follows quite clearly that painting words on the road is making a ' document'. The further question is whether the words ' Boycott British goods ' are matter described in Sub-section (1) of Section 4. The offensive matter against which Section 4(1) is directed is 'words ...which
(a) incite to or encourage, or tend to incite to or to encourage, the commission of any offence of murder or any cognizable offence involving violence.
5. It cannot of course be said that the words ' Boycott British goods ' incite to the commission of murder, but the learned Presidency Magistrate holds that they incite the public to commit the offence of molestation as defined in Section 3(b) of Ordinance V of 1932 as amended by Ordinance VII of 1932. That section declares that a person is said to molest another person who ' with a view to cause loss or knowing that loss is likely to be caused to such other person, loiters at or near the place where such person carries on business and dissuades or attempts, to dissuade by words or gestures or otherwise any person froin entering or approaching or dealing at such place'. This appears to me to be altogether too far-fetched. Molestation can only be committed by somebody who loiters with a view to cause loss to a person carrying on business., I do not see' how the words 'Boycott British goods ' can be supposed to incite the public to entertain the ' view to cause loss ' which is the essence of the offence of molestation. ' The words can tie held to inculcate a hatred of British goods, but I do not see that they necessarily inculcate a hatred of the people who deal in them, or a desire to do harm and cause loss to the people who deal in them.
6. I am of opinion therefore that though painting the words 'Boycott British goods' on the roadway does amount to making a document, it does not amount to making an unauthorised news-sheet as denned in Section 2(6) of the Indian Press (Emergency Powers) Act. It follows that the petitioner cannot be held to be guilty of an offence under Section 18(1) of that Act.
7. It is contended on his behalf that he is not guilty under Section 17(1) of the Criminal Law Amendment Act either. That section reads as follows:
Whoever is a member of an unlawful association or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association, shall be punished with imprisonment for a term which may extend to six months, or with fine, or with both.
8. The learned Presidency Magistrate has held that by painting the words 'Boycott British goods' on the roadway, the petitioner and the other who was convicted with him assisted the operations of the Working Committee of the Indian National Congress, which is an unlawful association. Mr. Jayarama Aiyar for the petitioner argues that it has not been properly proved (i) that the Working Committee of the Congress is an unlawful association, (ii) that one of the operations of the Working Committee consists in inciting people to boycott British goods, or (iii) that the petitioner has assisted such an operation. I cannot accept these contentions. If it were necessary I would be prepared to hold that any Court may take judicial notice of the facts that the Congress is an unlawful association and that one of its operations consists in incitement to boycott British goods. In this case it is not necessary. There is the evidence of the Sub-Inspector (P. W. 5) that the Working Committee of the Indian National Congress has been declared an unlawful association, and that the boycott of all foreign cloth whether British or from other countries is enjoined by the Working Committee as one of the means of furthering the Civil Disobedience Movement. The Sub-Inspector produced Ex. D, but I do not read his evidence as meaning that he derived his knowledge of these matters from Ex. D. He has also said that this boycott programme is being carried on by writing on walls and roads appealing to people to boycott British and foreign goods. He has said that the items of the programme of the Working Committee are being carried on by the Madras District Congress Committee, that the petitioner was a member of the Madras District Congress Tamil Committee and that he was a Congress worker. This evidence if believed was in my opinion quite sufficient to justify the learned Magistrate's finding that the petitioner was ' assisting the operations of an unlawful association ' within the meaning of Section 17(1) of the Criminal Law Amendment Act of 1908. I do not overlook the principle that in Section 17(1) the word 'assists' must be construed in a reasonable way. That section is obviously not designed to punish persons who, acting quite innocently, happen by accident to do something which furthers the operation of an unlawful association. 'Assists' in that section must, I think, mean 'intentionally assists,' i.e., does something which assists with the intention of assisting. Construing the word in that liberal way, I hold that there was before the learned Magistrate enough evidence to justify the finding that the petitioner assisted the operations of an unlawful association.
9. I decline to entertain the contention that as no more than the word ' Boycott' had been painted, the petitioner and the second accused had not passed the stage of ' preparation ' to commit an offence. It is, of course, possible to argue that the accused, after completing the word Boycott, might have changed their minds and gone on to add prostitution, gambling, drunkenness, or any other vice. But such an argument could not in this case be advanced seriously; by way of a joke it was quite amusing.
10. The result is that the conviction and sentence for an offence under Section 18(1) of the Indian Press (Emergency Powers) Act are set aside; the fine if collected must be refunded. I find no ground for interference with the conviction and sentence under Section 17(1) of the Criminal Law Amendment Act.