1. We granted this Rule on the question of sentence alone. The petitioner, one Rabindra Nath Chandra, was convicted under Section 35, Bengal Suppression of Terrorist Outrages Act, 1932, by a Magistrate at Midnapore and sentenced to one year's rigorous imprisonment. Section 35 deals with the possession of literature connected with the terrorist movement. It provides that if a person has knowingly in his possession literature which has been declared to be forfeited to His Majesty under the law, he shall be punishable with imprisonment which may amount to three years and the learned Deputy Legal Remembrancer has told us that no action is taken under this section unless the statutory condition precedent contained in Section 38 has been followed, which section deals with the preliminary to a complaint being made under the. Special Terrorist Act, where the Local Government or the District Magistrate have to consider the question of the prosecution itself by forming an opinion about the person or persons who will be affected by the prosecution or an opinion with regard to the nature of the literature concerned or its tendency to encourage the terrorist movement or the commission of some possible offence in connexion with that movement.
2. We do not know with exactitude what was done before this prosecution was launched, but there is no doubt that the pamphlet found in the accused's possession by the name of 'Swaraj and Khilafat' is a prescribed book. In all these cases, there fore, it may safely be said that the trying Magistrate, before he comes to the judicial consideration of a case, is well aware that responsible persons have made up their minds that there is, to use our legal phrase, a prima facie presumption of guilt against the person who has been prosecuted.
3. The judgment of the learned Magistrate and his sentence was upheld by the Sessions Judge of Midnapore. We have had our attention called to both the judgments: We have had our attention called too to translations of certain material passages in the pamphlet 'Swaraj and Khilafat'. We know it is not disputed that pamphlet was published in the year 1922. With regard to the judgments themselves, in my view one cannot help being impressed, when reading them, that both the learned Judges were obsessed with the prima facie guilt of the accused under Section 35 of the Act, more especially, in my opinion, is the restraining after this effect in the language employed by the learned Magistrate when he dilates upon the activities of the accused as 'a prominent Congress worker', a phrase copied from a newspaper paragraph which he had cut out and framed and hung on his wall-a paragraph which in actuality, referred to a melancholy event in the accused's life, to wit, the funeral of his mother. There he is described by the journalist as a prominent Congress worker. It may be that he is proud of being so described; it may be that he was truthfully so described, or he may be, for aught I know, a member of the rank-and-file and his vanity had been affected by the promotion which the press allotted to him. But whatever it was, nothing, as far as I can see, was proved with regard to his status in the movement before the Court nor does it have any real significance as to his connexion with the terrorists. It may or may not have been, I do not know, and it is my belief that the learned Magistrate and the learned Judge did not know either.
4. Turning to the pamphlet itself, it is one of those rather common productions of a political pen couched in flowery language which, as far as I can see, has again directly nothing to do with the terrorist movement. Its object appears to be an attempted reconciliation of Moslem political forces with the non-co-operation movement started by Mahatma Gandhi. Anyone who has studied the political history of India knows that at some point they did meet and at other points they were widely divergent. The pamphlet appears to have attempted to bring them together. I am not impressed by it in any way except for the fact that the book was prescribed, and except for the fact that it was quite frankly hostile to the British Government and might, in the hands of inexperienced and enthusiastic young men, have a tendency to sweep them into the movements of violence, I can say no more about the guilt of the accused. To my mind, the sentence was grossly severe and I think that the justice of the case will be met if we reduce it to a sentence of six weeks' rigorous imprisonment.
5. The order passed by the District Magistrate sanctioning prosecution of the petitioner does not set out the requisites laid down in Section 38 of the Act. I have no reason to suppose that he was not aware of that section or that he did not reach the conclusion that the complaint was justified under the provisions of Sub-section 2. In fact, I have no doubt at all that he had formed an opinion that the petitioner was a person who was mixed up with the terrorist movement. That the local officers were of this opinion seems to be pretty obvious from the fact that the petitioner's house was searched. What the police expected to find or whether the search was disappointing in its results, I do not know. But, at any rate, the only thing resulting from the search which enabled the police to start a prosecution against the petitioner was the seizure of this book, Ex. 4. As my learned brother points out, the book does happen to be within the terms of Section 35(b) of the Act, but it has nothing to do with the terrorist movement. It is concerned with the Khilafat agitation and the non-violent non-co-operation movement. It does not per se encourage the terrorist movement. One can well understand its being prescribed in the year 1922; but whether, if it had appeared for the first time during the present year, anybody would have thought it worth while prescribing, I really do not know. I entirely agree with the estimate which my learned brother has formed with regard to it.
6. Then again, the learned Judge thought that a severe sentence ought to be passed, because the petitioner took a prominent part in revolutionary activities. There is no evidence whatever to support such a finding. The only thing which the learned Deputy Legal Remembrancer drew our attention to on this aspect of the case was the fact that a newspaper cutting was framed and hung up in the petitioner's room. Of course, the mere statement by a journalist that the petitioner was a prominent Congress worker is not evidence that he actually was. The learned Magistrate appeared to take that view; the learned Judge, however, did not. He inferred that because this cutting was hung up in the room, the petitioner must have been proud of the fact of being a prominent Congress worker. This conclusion cannot be put higher than mere speculation, as it is a fact that the chief thing referred to in the newspaper cutting was the sradh ceremony of the petitioner's mother.