1. The petitioner who is the Editor, Printer and Publisher of a Bengali Newspaper called 'Swadhinata' has been convicted by the learned Extra Additional Chief Presidency Magistrate, Calcutta, under Section 7 (3) of the Bengal Special Powers Ordinance (VI of 1946), read with Section 2, Bangal Ordinance Temporary Enactment Act (I of 1947) and sentenced to pay a fine of Rs. 150/-, in default to undergo rigorous imprisonment for two months. The offence charged and found against him is that in the issue of his paper dated 14-12-1946, he published a prejudicial report which came within Section 2 (3)(a) and Section 2(3)(c) of the Ordinance.
2. The Ordinance was promulgated on 1st October 1946 and so far as Section 88, Government of India Act, is concerned, it expired on 15-8-1947, But the Legislature, by Bengal Act, I of 1947 which came into force on 16-3-1947, continued the operation of the Ordinance on the footing that it would be treated as an Act of the Provincial Legislature and continue in operation for a farther period of six months. The prosecution in the present case was launched on the 20-4.1947 when the challan was submitted. The challan is signed by a Sub-Inspector of Police and contained a note on the top to the effect that it was to be treated as a report under Section 19 of the Ordinance. In the column headed 'charge' it is stated that the accused had committed an offence under Section 7(3) of the Ordinance by editing, printing and publishing in Calcutta an article headed 'pooliser chithi' in Bengali in the issue of the daily Newspaper 'Swadhinata' for 14-12 1946.
3. The defence taken by the petitioners before the learned Magistrate and repeated before me was of a three-fold character; (1) that the proceedings were bad inasmuch as when the prosecution was commenced, the Ordinance had already ceased to operate; (2) that in any event there was no proper report as contemplated by Section 19 (1) of the Ordinance on which the Court could legally take cognizance; and (3) that on a fair construction, the article could not be said to be a prejudicial report within the meaning of the Ordinance but was merely an appeal to the people to assist the police in raising the standard of their service and their morals. The learned Magistrate repelled each one of the defence and convicted and sentenced the petitioner as already stated.
4. It will be convenient to deal with the points of law first. What was urged is that inasmuch as the Ordinance which made the publication of the report an offence had ceased to exist at the time the prosecution was commenced, no proceeding could be started in law. A further contention was that in any event the charge not having been one under the Ordinance alone but having been a charge under the Ordinance as well as the continuing Act, it was vague and had misled the petitioner. I am entirely unable to accept either of these contentions. The Ordinance, it is true, was not kept alive beyond 15-3-1947 by the force of the Government of India Act, but the Legislature intervened in time and provided for the continuance of its provisions without permitting any gap to occur. In effect, therefore, the Ordrnanw has always been the law since it was promulgated whether in the shape of an Ordinance or is the shape of an Act adopted by the Legislature. But even if the Ordinance was not validly and effectively continued by the Act, the prosecution was still good. It is well-settled now that If a temporary statute creates an offence and an offence is committed when such statute is in force, the mere expiry of the statute does not-prevent a prosecution for the offence committed, although at the time of the prosecution the statute may no longer be in force. This question was recently dealt with in great detail by the Court of criminal appeal in England and an instructive discussion will be found in Rex v. Wills (1946) 1946-2 All. E.R. 529. The contention that the prosecution itself was not valid must therefore be overruled.
5. As regards the second part of the first contention, viz., that the charge was an infirm one inasmuch as it was a combined chargeunder the Act and the Ordinance, I am really unable to understand what the petitioner means,. Mr. Ghose who appeared for him stated that the Ordinance had been amended by the Act and his client had had no clear notice of the offence with which he was being charged. It is only necessary to point out that the Ordinance was not amended in any manner by the Act but simply continued and since all that the Act did was to adopt the Ordinance as it was, ike reference in the charge to the Ordinance as well as the Act was by no means inapposite. Indeed, it was the only way in which the charge could be properly framed. Nor can I agree that the charge was in any manner vague. Of the many clauses in the definition of 'prejudicial act' it carefully selected two, viz., Clause (a) and (c), and gave the petitioner very precise notice of what was being charged against him. Indeed his own written statement makes it abundantly clear that he had the fullest comprehension of the charge.
6. As regards the second contention, viz., that there was no proper report as contemplated by Section 19 (1) of the Ordinance, I am of opinion that it is entirely devoid of force. This provision is obviously intended to guard against irresponsible prosecutions and consequently, a report by a responsible public officer is required. A complaint was made in the present case that the report was not sufficiently detailed. I an unable to see what further facts could have properly been expected. The report referred to the newspaper concerned, referred to the article complained of, gave the date of the issue in which the article had appeared and stated the law which was alleged to have been contravened, I am unable to see that anything further was required to satisfy Section 19 (1) of the Ordinance. It was pointed out that the officer who signed the police challan admitted in his cross-examination that he had not read the article concerned before he filed the challan and that he had filed the latter under orders of the Government. This omission on the part of the officer to read the article for himself seems to me to be quite immaterial, inasmuch as Section 19 (1) of the Ordinance does not impose on the officer making the report any duty of exercising his own discretion in the matter of choosing the subject-matter of the charge. The second contention advanced by the petitioner must also be overruled.
7. The really substantial question in the case is whether the article complained of does contravene the Ordinance. The learned Magistrate has discussed the article in some detail but he was under some disadvantage inasmuch as he had before him only a very indifferent translation. Be that as it may, his final conclusion is expressed in these words:
To my mind the article published in 'Swadhinata' is clearly a prejudicial act inasmuch as, if read by constables, it might prejudice the discipline of the police and by being circulated to the subscribers of the paper it was likely to prejudice the recruiting in the police force.
It was in this manner that he thought the article offended against Clause (a) and (c) of Section 2 (3) of the Ordinance.
8. Before me Mr. Ghose and Mr. Banerjee who appeared for the petitioner both contended that the article merely constituted fair criticism of the police force. I pointed out to them that what the Ordinance contemplated by Clause (a) of Section 2 (3) was not disaffection against the public servants but disaffection amongst them. It was then contended that the accused had no intention of creating any disaffection among the police and that in fact no disaffection would be created by what he had written. As regards what the intention of the accused was, that may be put on one side because the Ordinance also covers matters which are likely to cause a particular effect. The question for consideration therefore is whether the contents of the article were likely to cause disaffection among or interfere with the discipline of members of the police force.
9. Having given my best consideration to the matter, I am of opinion that there is nothing in this article which can fairly be said to offend against Clause (a) of Section 2 (3) of the Ordinance. The article purports to be an open letter to the public, signed by an ordinary member of the police force. In form it is a confession and an apologia, confession in the sense that it sets out the misdeeds supposed to be done by the police and apologia in the sense that it explains why members of police force find themselves compelled to do deeds of that character. The confessional part of the letter covers activities during the recent Calcutta riot3 and acceptance of bribes. It is stated that during the Calcutta riots policemen of the class of the writer had often to employ goondas in order to break open shops in various localities of the city and to remove the contents, which was done during the night. Portions of the sale proceeds are said to have been given be superior officers of the police force and it is added that it was not open to any subordinate to object to participate in action of this kind except on pain of punitive duties being imposed upon him. The other malpractice admitted, as already stated, is acceptance of bribes and that is explained by referring to the low pay of the members of the force. Some reference is also made to discrimination between superior and inferior officers as regards the quality of the rationed goods supplied and certain duties of an undignified character which subordinate members of the police force are compelled to perform, such as escorting the master's children to school, doing marketing for him and even buying fodder for his cow.
10. It is difficult to see that statements of this kind, if read by members of the police force will create disaffection among them. If the allegations are not true, then surely any disaffection created would be against the writer. If they are true, then it need not be disputed that some members of the police force who had previously been meekly submitting to a lot of the alleged kind, would now be made conscious of the position in which they were, but the question still remains whether the article would create disaffection among the members of the police force. That provision, to my mind, connotes a generality of the effect and unless it can be said that the writing concerned would lead to a fairly general dissatisfaction or disaffection on the part of a considerable body of the members of the police force, it cannot come within the mischief of Clause (a) of Section 2 (3) of the Ordinance. I am of opinion that the article, fairly construed cannot be said to be likely to produce an effect of that character and it must accordingly be held that the charge under Clause (a) has not been established.
11. A word must be added as regards the further passage in the article, so far as it bears upon Clause (a). That passage describes the police as instruments for the suppression of lovers of freedom and for supporting the exploiters in the exploitation of the exploited. I do not think that this passage brings the article within the mischief of Clause (a). The matter contained there is of the oft repeated kind which had at one time become the stock-in-trade of criticism of the public servants in India when it was a subject country. Whether true or false, by constant repetition criticism of that kind had spent itself and become incapable of creating either affection or disaffection. Reference in this connection may be made to the judgment of the Federal Court in the case of Niharendu Butt Majumnar v. Emperor Reported in ('42) 29 A.I.R. 1942 F.R. 22.
12. As regards Clause (c), it deals, so far as is material, with matter likely to prejudice the recruiting of any police force. The learned Magistrate has found and the Crown contended before me that an intending entrant to the police service, if he came to read the article complained of, would in all likelihood desist from proceeding further and seek other avenues of employment. This contention is not wholly without force. It may certainly be that an ordinary decent-minded young man, intending to try for employment in the police force, will revise his decision if he comes to learn that conditions such as are depicted in this letter prevail in the police service. It is however extremely difficult to judge the extent of such reaction. One or two individuals may surely be discouraged, but it is not easy to say that persons minded to enter the police force would generally be dissuaded from continuing their attempts to enter the force. It must however be remembered that the Ordinance was enacted against the background of great public turmoil, when it was essential that recruiting to the police force must in no manner be impeded and also essential that whatever malpractices might have been prevailing in the police force, should not for the time being be exposed to public view, resulting in discredit to the force and confusion. In my opinion, therefore, so far as Clause (c) is concerned, the article is not wholly on the safe side of the border-line but has to a certain extent overstepped it. The conclusion must therefore be that an offence under Clause (e) has been established.
13. There remains the question of the sentence. As I have already stated, the scheme of the whole letter is such that it does not seem to be designed at creating disaffection but rather at justifying the police force, and even the misdeeds alleged to be committed by them, by reference to circumstances. It is true that by making a statement of the alleged conditions prevailing in the service it has attracted the mischief of Clause (c) of Section 2 (3) of the Ordinance, but I do not think that the mischief has been one of very serious proportions. The learned Magistrate himself seems to have taken that view, seeing that in sentencing the petitioner under a provision which authorised him to award imprisonment for five years or fine or both, he merely imposed a fine of Rs. 150/-. In my view in so far as the article offends against Clause (c) of Section 2 (8) of the Ordinance, it does not so offend in much beyond a technical manner. It will therefore be proper to reduce the sentence.
14. In the result the Rule is made absolute in part. The conviction of the petitioner under Section 7 (3) of the Ordinance, read with Section 2 of Act I of 1947, so far as it concerns the contravention of Clause (a) of Section 2 (3) of the Ordinance is set aside. The conviction for contravention of Clause (c) of the said section is upheld. The sentence is reduced to a fine of Rs. 25/-(twenty-five only); in default rigorous imprisonment for one week.