1. The appellant has been convicted under Section 124-A, I.P.C., and sentenced to nine months rigorous imprisonment and a fine of Rs. 100 in default rigorous imprisonment for three months on the ground that he was the Editor, Printer and Publisher of a Hindi weekly newspaper Lokmanya' in which an article entitled 'Kajal-ka-Pahar' was published in the issue of 28th September 1931, which is found to be seditious. The grounds of appeal were that the Court below was wrong in holding that the article exceeded the bounds of, legitimate criticism and that on a consideration of the entire evidence, facts and the circumstances of the case the Court should have acquitted the appellant. Two points have been urged before us, in the first place, that the Government referred to in the article in question was the British Government and not the Government establised by law in British India and secondly, that on reading the article as a whole the intention of the writer was, as he says, that he was grieved at the incident in the Hijli Camp, that he made an appeal for an impartial inquiry and that it was not his intention to create disaffection towards Government.
2. As regards the first point it is clear that the writer himself does not state that it was the British Government that he was attacking. He says that it was not his intention to create disaffection towards Government, meaning obviously the Government of India and not the British Government. But referring to the article itself para. 1 may be interpreted as referring to the British Government inasmuch as in the opening words it is stated that:
British Government is one of the civilized Governments of the world.
3. The writer then goes on to say:
But Britain is putting a slur on her name which she has earned in India.
4. On behalf of the Crown it is argued that whatever may have been in the mind of the writer of the article, it is certain that to the minds of those who read it, it would mean the Government established by law in British India. On the other hand for the appellant it is suggested that there is no evidence as to the effect the article had on the minds of the readers and that in the absence of any such evidence it cannot be assumed that the readers would have regarded it as an attack on the Government established by law in British India. Reading the article as a whole, however it is clear that whatever may have been meant by the opening paragragh, certainly throughout the rest of the article the Government established by law in British India is referred to: and in these circumstances there is very little doubt that the readers of the article would regard the whole as an attack upon the British Government in India, just as in the case In re India in Bondage AIR 1930 Cal 244, where the British Government is spoken of throughout and still the whole article was regarded as an attack upon the Government established by law in British India. In the present instance that this was the intention of the writer is borne but by the fact that the incidents with which the British Government have no direct concern are referred to such as the Jallianwala and the Hijli incidents:
The Jallianwala incident was a big example of her pitilessness and Hijli incident is even a greater one than that,
so that there is very little doubt that the readers of the article when they read the passages such as
Britain is putting a slur on her name which she has earned in India. She has not once but several times demonstrated her barbarity. She is very proud of brute force. This has been the cause of her humiliation. The Jallianwala incident was a big example of her pitilessness and Hijli incident is even a greater one than that. No civilized Government would put to shame, humiliate, distract and crush the unarmed as has been done under the aegis of the British rule,
would regard this as an attack upon the Government established by law in this country. The writer also goes on to say:
No Government has undergone the same moral degradation as the Government. To attack the unarmed is immoral...: It may be that the sentries fired on the unarmed political prisoners in Hijli possibly on their own responsibility but it would be understood that the responsibility for it lies on the Government. If they do not want to hold an impartial inquiry into the misconduct of the sentries then the civilized world would know that there is an accumulation of mental dirt in the mind of the British Government and that they approve of the action of the sentries. However much Government may try to be truthful, their helpers are not so.
5. The reference to helpers shows he cannot mean the British Government outside India. Next he goes on to say:
It is futile to appeal to justice and equity in India under British rule. To all appearances it seems that the Government have no respect for the lives of the prisoners at Hijli.
6. There are other passages showing that he was anxious that Government should make an inquiry into the incident at Hijli e.g., he says:
In regard to the incidents like those in Hijli the Government should not admit the fault of their agents but should hold an impartial inquiry,
and he does give the Government a fair name where he says that:
They should ponder over this bitter thing about their welfare for a small blot puts a smudge on a fair name.
7. Still taking the article as a whole we think there is no doubt that it does come within the mischief of the Section 124-A, I.P.C. It is however not so extreme as some of the articles which have been referred to and we think that in the circumstances of the case the sentence should be reduced to one of six months rigorous imprisonment with a fine of Rs. 100 in default three months rigorous imprisonment. Let the appellant surrender to his bail and serve out the sentence. We have been asked to order for the classification of the appellant as A; and we think that he may be put in that class subject to any objection.
M.C. Ghose, J.
8. I agree.
9. Order - An objection has been raised on behalf of the Government as to the classification of the appellant being A. In the circumstances we think this classification should be left to the jail authorities.