1. In this case, Bodi Narayana Rao and G. Harisarvothama Rao have been convicted of an offence punishable under Section 124A, Indian Penal Code, in respect of an article published in the Tolugu Weekly Journal 'Swaraj,' on the 26th March 1908. The former (Narayana Rao), on the 18th March 1908, made the statutory declaration under Act XXV of 1867 that ho was the owner of the Swaraj Press and the Printer and Publisher of the 'Swaraj' newspaper. The latter was the managing proprietor' of the paper. The article reads as follows:
It is unnecessary to mention in detail the inhuman cruelty the Feringhees showed (caused) to the patriots and natives in Tuticorin in the name of authority. Just as it is said that all those that are born in Lanka (Ceylon) are only Rakshasas, so it is known to the world that all the white faced (men) who are arriving in this country possessed of uncontrolled power, become ill-natured, hardhearted and seized by the Devil of envy; commit many horrible actions; and continue to venture to oppress the mild Indians, even without fear of sin. Now, the great demon of the holy hymn of Bande Mataram seizes these merciless men, and makes them act under its influence. By the influence of this demon, they forget themselves and fan the great fire of people's power for their funeral pyre, Alas! Pity. What a seditious act did Chidambaram Pillai commit? What a murderous act did he do ! Would he have been prepared to go to jail rending the hearts of the Feringhees without admitting even at the request of the Collector that ho committed an offence which ho had never committed? Oh ! The sense of Justice of the Collector ! As some people, being provoked by the whipping of the District Superintendent, began to throw stones, the Collector caused rifles to be fired to put down (avert) that great calamity, and got killed a young boy of 13 years returning from a temple with Sacred food' in his hands, and two other unarmed and inoffensive passers-by. Even this is not without a strong reason. When questioned by the District Superintendent, why the Swadeshi shop was decorated, why should the shop clerk have uttered the words for welcoming Mr. Pal which sound very harsh to the ears of the Feringhee people? What if they were uttered? Why should the natives indicate their anger without keeping quiet like dogs, when the clerk was whipped by the Superintendent? What other less punishment than what he had actually inflicted could the Collector have imposed- on such, mischievous people?
Hallo! Feringhee, Cruel tiger? You have indeed devoured simultaneously three inoffensive Indians in a moment without any cause. You have been transgressing your own laws too. You fear-stricken man, it is natural for men blinded by arrogance to entertain such perverted thoughts. You yourself have exposed your secret. You have declared that the arbitrary Feringhee rule is drying up at the mere breeze of the development of Indian nationality '.
The article is undoubtedly one calculated to bring the Government established by law into hatred and contempt and to excite disaffection towards it. If it was published by, or by the authority of, the accused they were rightly convicted. The plea of the 1st accused was that though he was styled editor, he was so only in name, that he did not write articles, that his duties were mainly those of a clerk keeping registers and the like for a remuneration of Rs. 15 monthly. He, however, admitted that he used to receive articles written by others and pass them and hand them on to the printer and get them published. This accused has not denied that he did this in respect of the article incriminated, nor has he attempted to show that he is not-liable as the printer and publisher. He is not illiterate. The fact that he made the statutory declaration raises a presumption of his liability as printer and publisher, and as he has not rebutted the presumption his liability is conclusively established. Ramasami v. Lokanada 9 M.K 387. In his statement before the Magistrate he said that the second accused wrote the incriminating article, but that statement cannot be considered as against the 2nd accused, inasmuch as the 1st accused did not make a confession of his own guilt, but merely desired to throw all the guilt on the 2nd, accused. The 2nd accused before the Magistrate declined to make any statement, and before the Sessions Judge he merely pleaded that the article was published during his absence in another village, and that he only lent his name to the paper.
The Sessions Judge, by some strange confusion of thought, ruled that under the terms of the sanction given by the Government for the prosecution, it was not open to the prosecution to prove the authorship of the article. There is, therefore, no evidence on that point, though it would obviously have been the, most direct and complete means of proving the guilt of the accused. It is necessary, therefore, to see whether there is evidence to show that the article was published by his authority, so as to render him criminally liable.
The criminal liability of the proprietor of newspaper under the English Common law, as now modified by Lord Campbell's Act 6 and 7 Victoria C. 96. Section 7, has been fully explained in the leading case of R. v. Hollbrook 4 Q.B. Div. 42. That whole case is deserving of the most-careful study as an authoritative exposition of the criminal liability of the proprietor of a newspaper in respect of the matter published by its means. In that case it was proved that the literary department of the newspaper in question had been intrusted to an editor, who inserted in it what he thought fit in the way of articles, correspondence, etc; that of the three defendants, who were proprietors of the paper, each took the management of a particular department of the business other than the literary department; that at the time of the publication of the libel one of them was absent from home on account of ill-health, and that neither of them had given any authority for or consent to the publication complained of, or had any knowledge of the libellous article until his attention was called to it after the paper was in circulation. Lush, J. after referring to the Old Common law of England under which the proprietor of a newspaper was criminally liable for the publication of a libel in its columns, even if the libel was inserted without his knowledge, quoted Section 7 of 6 and 7 Viet. C. 90: 'Whenever upon the trial of any indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other parson by Ms authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent or knowledge, and that the said publication did not arise from want of due care and caution on his part.' * * * and added that the law, as thus modified, was that an authority from the proprietor of a newspaper to the editor to publish what is libellous is no longer to be, as it formerly was, a presumption of law, but a question of fact. Before the Act the only question of fact was whether the defendant authorised the publication of the paper; now it is whether he authorised the publication of the libel. It is true that the production of the paper which contains the libel, coupled with proof that the defendant is the proprietor, is prima facie evidence that he caused the publication of the libel and the onus is on him to prove the negative. But when he has proved that the literary department was intrusted entirely to an editor, the question what was the extent of the authority which that employment involved is to be tried upon the, principle which is applicable to all other questions of authority. And I think the jury ought to be told, in this as in. every other case, that criminal intention is not to be presumed, but is to be proved, and that, in the absence) of any evidence to the contrary, a person who employs another to do a lawful act is to be taken to authorise him to do it in a lawful and not in an unlawful manner.'
The learned Judge then added these most important words: 'I am far from saying that the mere appointment of an editor without supervision or control may not, in some cases, involve an authority to publish libels. If the paper was a calumnious paper, its general character would negative the ordinary presumption of innocent intention, and fairly lead to the inference that the proprietor authorised the insertion of slanderous articles.'
Cockburn, C.J. sums up his conclusions in these words : I have no hesitation in saying that, where a general authority is given to an editor to publish libellous matter at his discretion, it will avail a proprietor nothing to show that he had not authorised the publication of the libel complained of. It is equally clear that though in the authority originally given to the editor no license to publish libellous matter may have been contained still such an . authority may be inferred from the conduct of the parties, as, for instance, from the fact that other libels have been published in the paper, which have Come to the knowledge of the proprietor and without his remonstrance or interference, or the removal of the editor, from which the assent of the proprietor might well be inferred. I, therefore, do not feel the apprehension which has been expressed of the mischief which would result from the impunity which newspaper proprietors would derive from holding them free from criminal responsibility, when they employ an editor with general authority to conduct the paper, The impunity would quickly cease if they suffered the paper to become the vehicle of calumny. There are journals as to which no Jury would hesitate to say that the editors were authorised by the proprietors to invent or give currency to libel.'
Lord Campbell's Act, of course, is not in force in India, and the Criminal Law of England is not necessarily the same as the Criminal Law of India as contained in the Indian Penal Code; but, as pointed out by Cockburn, C.J., the purport and effect of Lord Campbell's Act was to bring the law into harmony with general principles' (page 60), and those principles are applicable in construing the law as laid down in the Indian Penal Code. (Mayne's Criminal Law of India, 2nd Edition, page 522.) As stated by Petheram, C.J. the offence under Section 124 A, ' is attempting to excite disaffection by words intended to be road, and I think that, whoever the composer or writer might be, the person who used them for that purpose, within the opinion of the jury, was guilty of an offence under Section 124 A.' Queen-Empress v. Jogendra Chunder Bose 19. C.K 35.
Strictly speaking the publication of a seditious article in a newspaper is not ordinarily the work of either the writer alone, or of the proprietor alone or of the editor alone or even of all three together. They employ the compositor to print the article, and the post office or other agency to distribute it, but the maxim qui facit pur alium facit per se applies, and the publication is held to be the act of the person or persons who authorised it, and the grant of the authority may be proved by direct evidence or as a reasonable inference from the conduct of the parties and all the surrounding circumstances. In each case it is a pure question of fact, to be proved like any other fact by direct evidence or as a reasonable inference from facts proved or admitted, and considered in relation to all the circumstances of the particular case.
Section 14 of the Indian Evidence Act lays it down as a rule that, 'the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the course of * * * human conduct, and public and private business in their relation to the facts of the particular case,' and it gives as a familiar illustration of the rule the case of a person found in possession of property recently stolen. The Court may presume either that he stole the property, or that he received it knowing it to be stolen, unless he can account for his possession. So in the case of a newspaper, as pointed out by Lush, J., in the passage already quoted, it is open to the Court to presume that the proprietor, who from his very position as proprietor has the control of the paper, authorised the publication of the matter which appeared in it. But the propriety of making such a presumption depends on circumstances. It would obviously be improper in the case of a large paper, with a separate editor who was responsible for the selection and publication of the literary matter. It would be equally improper in the case of an absentee proprietor. In both these cases the original presumption would be rebutted by the additional facts and to would be necessary for the prosecution to give proof, direct or as a matter of reasonable inference, that the proprietor did, in fact, authorise the publication. But in a petty paper, with no separate editor responsible for the literary matter, and published under the eye of the proprietor, the presumption might be an eminently reasonable one, though, of course, it would be open to the proprietor to rebut it and prove that the publication was, in fact, not authorised by him. Act XXV of 1867 has nothing to do with the liability of the proprietor of the newspaper. It establishes the prima facie liability as publisher of the person who is the declared printer or publisher. In his case the prosecution need not give any evidence that he is, in fact, the publisher It is enough to produce the declaration. But in the case of a person incriminated as proprietor it is necessary first of all to prove that he is the . proprietor. The question of what presumption, if any, will arise from such proof will depend on circumstances; and the proprietor's liability for the publication of the matter must be established to the satisfaction of the Court by direct proof or as a matter of reasonable inference from all the facts of the case.
Let us now see what was the position and conduct of the 2nd accused. From an entry in the 2nd accused's diary under date the 11th March 1908, and from the evidence of Viramalliya (10 P. W.) it appears that on that day the 2nd accused, and the 1st accused and brother (Iswara Rao since deceased) of the witness and one P. Lachminarayana entered into an agreement for the revival of the ' Swaraj ' paper, which had ceased publication a short time previously. The terms of the agreement are not recorded in the diary, but from the evidence of the 10th witness it appears that the 2nd accused was to be the managing proprietor, 1st accused the editor on a fixed pay of Rs. 15 per mensem, Lachiminarayana was to finance the paper and be treasurer, and Iswara Rao, who owned a press, was apparently to do the printing. The 2nd accused was to have 31 sharers out of 100 in the venture, and the other 3 persons 23 shares each. On the next day the 2nd accused left Bezwada, where the revived 'Swaraj ' was being printed and went to the village of Garagaparru, where he lived for nearly a month in the house of the 11th P.W. On the same day (12th March) the first issue of the revived Swaraj appeared. It is entitled in English A Nationalistic Telugu Weekly' and G. Harisarvothama Rao. M.A., is stated to be its proprietor, and B. Narayana Rao its editor. There is also an introduction in the issue of the 12th headed ourselves' in which there is a grandiloquent eulogy of B. C. Pal, and the re-birth of the paper is connected with his release from prison; the object of the paper is stated to be 'the infusion of the new spirit in the Telugu country,' and it is announced that Srijut G. Harisarvothama Rao Pantulu Garu, M.A., has assumed the Athipatyam' of the paper. There has been some discussion as the meaning of the word Athipatyam'. It appears to be used to signify either the editorship or the proprietorship of a paper or both. Probably its meaning as used in the article is best indicated by the words which the paper has chosen to describe the 2nd accused's connection with it, viz., managing proprietorship.' In a small paper of this kind duties, which in a larger paper would be performed by separate persons, are often performed by the same person, and even if there is a nominally complete staff, the definition of duties is rarely complete. The same man is often Proprietor, Editor, Printer and Manager. The use of the words hag assumed' the Athipatyam is not appropriate to a bare proprietorship, but must refer to the duties of editor or manager or both.
So likewise on the blank post cards, (Exhibits O and 0 1) found at the 'Swaraj' Office, there are printed in English the words 'Swaraj.' High Class Telugu Weekly'. Established 1907, G Harisarvathama Rao, M. A., managing proprietor. In the issue of the 26th March 1908 in which the article charged as seditious is printed there is the same statement that G. Harisarvothama Rao, M.A., is the proprietor. It is, therefore, clear that the 2nd accused was prominently put forward by the paper as its managing proprietor and in fact had the largest share in it as proprietor. It is also clear that notwithstanding his living for some time in another village he was in fact actively engaged in the work of managing and supervising the issue of the paper. On the 14th March, that is two days after leaving. Bozwada, ho writes Exhibit S(1) from Camp, Garagaparru' on paper which belongs to the 'Swaraj,' newspaper as shown by the printed words on the margin of the paper. The letter is addressed to Lakshminarayana one of the three persons who started the paper with the 2nd accused. It runs, ' sending matter to-morrow. How is it we have not yet got last paper? Have Mr. Kaleswara Rao and Mr. Narasimhan given their contributions? What about the old Swaraj ' editor. It seems he threatened he would withdraw his declaration. If that should happen, some one of you declare and let the paper stop on no account. Ask Mr. Veeramalliah to correct proof. Be prompt. Send 20 papers to my address. All well; rest in my next. Hoping this finds you in sound health.
Yours sincerely,G. Harisarvothama Row.Now here we see the 2nd accused promising to send matter for publication, and enquiring (as an editor might) about other expected literary contributions. He also gives authoritative instructions as to the person (10th P. W.) who is to correct the proofs and the steps to be taken if the declared printer and publisher of the defunct 'Swaraj' should withdraw his declaration. He says that if that should happen 'one of you' should declare and not let the paper stop on any account. What he expected appears to have happened, for on the 18th March one of them, viz., the 1st accused signed the statutory declaration (Exhibit F) as printer and publisher of the paper. The 2nd accused also in the above letter directed 20 copies of the paper to be sent to his address evidently for distribution to others. Every sentence in his' letter shows, that this accused so far from being a mere name lender or a person with a bare pecuniary interest was the mainspring and Director General of the venture and was discharging in his own person the duties of both the editor and manager and was actively engaged in the distribution of the paper.
Not less instructive is Exhibit P, written on the next day (15th March) to the same person as follows:
GURGAPUR,March 15-08.DEAR LAKSHIMINARAYANA,
Paper not satisfactory; order pink by wire. Look to corrections carefully. Arrangement of matter should be attended to Remove at one Kaneerla Venkatakrishnaya's foreign cloth advertisement, and in the next note put a note that it was published by mistake, or the paper may go unpopular. All well. Hoping this finds you in sound health.
Yours sincerely,G.H.S. Rao.Send 1 copy V.P. to Pammi Venkatanarasimhalu.
2. Hero again we see him issuing authoritative orders (not mere advice) as to the kind of paper to be used, the correction of proofs, the arrangement of the printed matter, and the distribution of copies, and even directing the immediate removal of an advertisement regarding foreign cloth, lest it should render this Swarajist' paper unpopular with its readers. The order was too late to stop the offending advertisement in the issue of the 19th March, but it was removed from that of the 26th March in accordance with his orders.
3. These letters were addressed to Lakshminarayan, who appears to have been more actively engaged in bringing out the paper than the nominal editor, 1st accused. We, however, find the 2nd accused on the 16th April writing Exhibit P (2) to 1st accused at the Swaraj Office to inform him of his movements and enquiring about the issue of the weekly paper.
4. Then there is the evidence of the 11th P. W. in whose house 2nd accused lived while at Garagapami, who proves that the 2nd accused described himself to him as the proprietor of the 'Swaraj' and used to write newspaper articles, and adds that on one occasion he saw him taking packets to the Post Office and accused told him that the packets were for the Swaraj' journal. Exhibit P(1) addressed to the 1st accused at the ' Swaraj' office on the 5th April evidently refers to one of these packets. The evidence above referred to and especially the letters S(1) and P(1) show that though the 2nd accused was living in Garagaparru, not Bezwada, he was directing and controlling the publication of the paper in the most minute, as well as in the most important matters, and he was doing this as one invested with and exercising complete authority in all departments. It is difficult to see what closer or more direct authority he could have exercised if he had been sitting in an editorial chair in the house where the paper was printed. In these circumstances it is a reasonable inference that what appeared in the paper appeared there under his authority; and this inference is strengthened by his own conduct in never repudiating or apologising for the seditious matter in the paper itself or warning 1st accused or Lakshminarayana not to insert such matter again or attempting to stop the sale of issues containing seditious matter. We have seen that 2nd accused at once and authoritatively interfered when an advertisement regarding foreign cloth appeared in the paper and it was discontinued. But not so with the seditious articles. Not. only is there no apology or explanation or disclaimer, but we find further seditious articles in the issues of the 9th and 16th April (Exhibits Q. Q. (1) to Q. (3) and R). The Public Prosecutor in the Sessions Court attempted to file other issues in order to further prove the seditious character of the paper, but the Sessions Judge improperly refused to admit them. Such evidence ought to have been admitted as relevant, for, as observed by Cockburn, C.J.; R. v. Holbrook 2 Q.B. Div. 42: 'It is clear that though in the authority originally given to the Editor no license to publish libellous matter may have been contained, still, such an authority may be inferred from the conduct of the parties; as for instance, from the fact that other libels have been published in the paper, which have come to the knowledge of the proprietor and without his remonstrance or interference, or the removal of the Editor, from which the assent of the proprietor might well be inferred * * * *. There are journals as to which no jury would hesitate to say that the Editors were authorised by the proprietor to invent or give currency to libel.'
5. In this connection it is not out of place to remember that the 2nd accused had been a short time previously expelled from Rajahmundry College for taking part in political meetings in connection with B. C. Pal, and for disobedience to the Principal, and his re-employment in the Educational Service of Government had been prohibited by notification in the Government Gazette. His diary shows that he attended Pal's celebration on the 9th March in Bezwada. On the 12th the Swaraj ' is established with him as Chief Proprietor in connection with Pal's release and for the purpose of spreading the new spirit' in the Telugu country, and then follow a series of seditious articles, one of which is the subject of the present charge. There is evidence and it is clear that the nominal editor (1st accused) was not a man of sufficient education or literary ability to write the incriminated article which is written in a highly sanskritized style. The 2nd accused has not attempted to show that the article was not published by his authority. He has not even denied that it was so published, nor has he made any statement or called any evidence to show what his relations with the nominal editor (1st accused) really were. His absence in the village of Graraga-parru leads to no presumption in his favour for his own letters show that while there he exercised the most authoritative and complete control over the paper both in large and small matters, and in fact exercised in his own person the duties both of Editor and Manager, as well as Proprietor, and took an active part in distributing copies of the publication. In these circumstances there is good reason to infer that the seditious article charged was published by the authority of the 2nd accused and that he is guilty of an offence under Section 124 A, Indian Penal Code, as found by the Sessions Judge.
6. The Public Prosecutor has applied on behalf of Government for an enhancement of sentence in the case of both the accused, on the ground that such comparatively short sentences of simple imprisonment are not deterrent, but rather serve as an encouragement to sedition by enabling the guilty persons to obtain a cheap notoriety and to pose afterwards as martyrs. The 1st accused appears to us to have been to a large extent a tool in the hands of the 2nd accused, but it is clear that he was not an inactive tool as he was also engaged in making speeches in the villages as well as in assisting the publication of the seditious paper. We think that in his case it is not necessary to enhance the period of imprisonment, but we resolve to direct that so much, of it as is still unexpired be rigorous instead of simple. The 2nd accused was evidently the moving and controlling spirit in regard to the paper. His past history and the scandalous articles (Exhibit Q (2)) in which His Excellency the Governor is attacked by name and grossly libelled, indicate that he was actuated more by personal malice than by any mistaken feeling of so called patriotism. We think that the Sessions Judge has taken altogether too lenient a view of the offence and of the consequences likely to follow from such inflammatory writing if permitted to continue. We resolve to enhance the sentence to three years' imprisonment, and direct that so much of this period as is still unexpired be rigorous.