1. This is an appeal in what is known as the 'Banda Mataram' press confiscation case. We admitted the appeal without hearing the application for admission, as the case is the first under the new statute, and it was desirable that the scope and effect of the Act and its bearing on the facts of the present case should receive judicial consideration after full discussion by both parties at the Bar. We have now had the advantage of a very able and temperate argument from the learned vakil for the appellant, Babu Dasarathi Sanyal, and a vigorous and well reasoned reply by the learned Advocate-General.
2. We do not propose to go into all the cases cited before us on the subject of abetment by incitement, since those cases are concerned with the criminal liability and intention of persons under various statutes enacted to punish individuals for words and conduct therein declared unlawful. In the case of those individuals the intention and knowledge of the accused person is necessarily involved: In the present case our task is much simpler. The order is not one against any person; it is purely restrictive and directed against the use of a certain printing press, which, in the opinion of the Magistrate, on application made by order of, or under authority of, the Local Government under Section 3 of the Act (VII of 1908), has been used or is intended to be used for the purpose of printing or publishing a newspaper containing any incitement to murder or to any offence under the Explosive Substances Act (VI of 1908) or to any act of violence.
3. On this enactment no question of the intention of the writer, printer or publisher arises, and no personal criminality is imputed to any individual. It is a simple question of fact whether the newspaper printed and published by the press in question does contain any incitement as above set out. In this case a conditional order under Section (3), Clause (1), was issued by the Presidency Magistrate, on the 23rd October 1908, declaring the printing press used for printing the newspaper, known as the 'Bande Mataram' at 2-1, Creek Row, or found upon the said premises, and all copies of such newspaper, to be forfeited to His Majesty, and calling upon all persons concerned in the said printing press to appear before the Magistrate, on the 30th October, to show cause why the order should not be made absolute.
4. Counsel for the manager, Girija Sundar Chuckerbutty, the appellant before us, appeared to show cause, and admitted that the article complained of was published by the said press in the 'Bande Mataram' of the 12th September 1908, but contended that it did not come within Section 3 of the Act.
5. The Magistrate found that the article contained an incitement to murder approvers or to commit acts of violence, and he, accordingly, made the order absolute on the 4th November 1908. The procedure of the Magistrate under that section is not in any way impugned before us, nor is it contended that it is necessary to prove any criminal intention against any person under the Act. The contention before us is simply this that the article itself does not, as a matter of fact, contain any incitement to murder or to any act of violence.
6. The argument on this, the only point in the case, divides itself into two heads : first, the meaning of the word 'incitement,' which is not defined in any Indian statute, and secondly, the effect of the article itself read as a whole and in reference to the passages in it, which are found to constitute an incitement.
7. As regards the first point, it is conceded that the interpretation of an undefined word in an Indian statute cannot be derived from its definition in any English or foreign statute.
8. Both the wording of certain statutes and extracts from the judgments in certain English cases are cited as illustrating the meaning of the word as derived from the recognised dictionaries of the English language, viz., Webster and the Century. These are cited as giving the ordinary meaning of the word, which is all we are really concerned with. Now the words cited from these statutes and cases do not carry the definition any further, and the real object of their citation seems to us to be to import into this case the doctrine of English law that, in order to saddle persons with criminality in certain cases as accessories before the fact, it is necessary that there should be a certain degree of direct incitement.
9. But, as we said before, there is in this case no question of incriminating any person as accessory to any crime, and the words of the statute are any incitement,' which include direct and indirect incitement.
10. As to the moaning of the word, we find it to mean to move to action, to stir up, to stimulate, to instigate or to encourage'
11. The only question that remains is whether the article in question is, as a matter of fact, calculated, directly or indirectly, to move to action, to stir up, to stimulate, to instigate or to encourage to murder or acts of violence. The article runs as follows:
Traitor in the Camp. From Joychand to Omichand is a far cry, but the political history of our country for all those long centuries of indelible shame can be summarized and accounted for in the four short words- traitor in the camp.' Reading down the pages of the annals of that interminable period of disgrace, you will hardly come across the account of a single movement towards emancipation that had not nursed in its bosom one or more vipers named traitors ' who, whilst remaining within the camp in the seeming guise of loyal adherence, betrayed the object of their perjured allegiance at the season of fruition.'
'But need we stop at Omichand? Are there not traitors in the land to-day; who would sell their souls as readily for the paltry privilege of wearing a jewelled sabre, or for a ribbon to stick in their coat, or for a title to cover their base birth with? For it is in the blood of some of our countrymen, this accursed proneness to perfidy, and has been there ever since the loss of our independence, and Heaven alone knows when the last drop of it shall have been spilled or become sterile. And the no less singular feature of this ghastly thing is that, through all these countless years, it is always the person, at whose instance he turned traitor, who has punished the miserable miscreant, but the country could never find a single son to rise and avenge her on the hated monster by smiling him to the ground.'
Now for the first time the current is turned. For the very first time a cause has produced a votary, who has willingly sacrificed his life to visit on its betrayer his merited doom. Kanai has killed Narendra. No more shall the wretch of an Indian, who kisses away the hands of his comrades, reckon himself safe from the avenging hand. ' The first of the avengers' history shall write of Kanai. And from the moment he fired the fatal shot the spaces of his country's heaven have been ringing with the echo of the voice -' beware of the traitor's fate.'
'Yet the crowning pity of it is that such a splendid life should have to be thrown away in the course of this bomb affair. Bombs can never bring independence, said Barindra Kumar Ghose in his confession before the Magistrate at Alipore, and truly enough. And it was at a very unlucky and inauspicious moment that he and those he names mistook the voice of the misguided few calling for the blood of an official or two to be the voice of the nation. The removal of a few servants of the bureaucracy cannot even touch the fringe of the problem of national deliverance and one cannot resist the tear at the thought that there has to be immolated on the altar of an undertaking so fated to fruitlessness such invincibility of spirit, that some passionate, immortal scorn of death that showed itself in Asia after a long interval at Kin-chain the other day.'
12. We think that there can be no doubt not only that the whole article is an indirect and veiled incitement to violence, but that the third paragraph is a direct incitement to murder informers. It is immaterial that two European newspapers, which are exhibited and cited for the defence, have the unwisdom to express a view of the Alipore jail murder, which might lead people to suppose that the murder of an informer was a less heinous offence than the murder of an ordinary person. The legal consequences are the same, and this is duly pointed out, and the legal consequences of incitement to such a murder or to any act of violence must also be the same.
13. It may be conceded that the incitement in this case is not of the violent and outrageous character of that in the well-known case of Reg. v. Most (1881) 7 Q.D. 241 : 11 Coxc C.C. 583 but that case was only cited as an authority for the proposition, which is not disputed before us, that the incitement need not be addressed to any particular person. It has no bearing on the words of this Act which, as we have seen, cover 'any incitement,' open or veiled.
14. We may point out that the incitement in this case, addressed as it is to the youth of a peculiarly emotional and. intellectually subtle race, is probably the most effective and dangerous form of incitement that could be addressed to them.
15. The glorification of the votary of the cause 'who has willingly sacrificed his life to visit on its betrayer his merited doom' is obviously most calculated to act upon the misguided and unbalanced ardour of youth, who are ready to plunge into hopeless and futile rebellion under the mistaken notion that it is patriotism.
16. The canonisation of Kanai as the first of the avengers' who has made the spaces of his country's heaven ring with the echo of the voice-'beware of the traitor's fate.' evidently contemplates and encourages the notion that others will be thereby induced to follow his example. The threat of violence to any Indian who kisses away the hands of his comrades' obviously implies, that the writer desires to influence his readers to make his threat good.
17. It is urged that the fourth and last paragraph deprecates assassination, and makes it possible to interpret the third paragraph as mere approbation of the isolated act of Kanai, and not as an incitement to further murders and violence.
18. But, in our opinion, this paragraph rather aggravates the dangerous character of the article. It deprecates isolated assassinations as useless, but it implies that the wholesale removal of the bureaucracy would assist the cause of national independence. This is obviously in no sense a mitigation of the previous incitement. We find, therefore, that the article complained of does contain an incitement to murder and acts of violence, and that it, therefore, falls within the scope of Act VII of 1908.
19. It is not contended that any other consequence can follow on this finding than the one and only penalty prescribed by the Act.
20. We, accordingly, dismiss the appeal, and direct that the order absolute for the forfeiture of the press and all copies of the newspaper, 'Bande Mataram,' wherever found, be maintained.
21. I entirely agree and wish to add only a few words. I do not think there is any real difficulty in ascertaining what the Legislature meant by the word incitement' in Act VII of 1908. The word itself is familiar enough, and as it has not been specifically defined in this Act or in any other Act of the Indian Legislature to have a special or restricted meaning, I think it should be understood in its ordinary acceptation. If that is so, the only question we have to decide is whether this article amounts to an incitement within the meaning of the Act.
22. There can, I think, be no hard and fast canon to decide what words, or whether a given set of words, constitute art incitement' to murder or to any act of violence. It is really a question of fact in each case, and must usually depend very largely on concomitant circumstances. We must read the article as a whole, and read it, as far as possible, in the sense in which it was read by that section of the public to whom it was primarily addressed, and must also bear in mind the occasion and place of its publication and the class or status of persons, who are likely to be affected by it. Having regard to all those considerations, I can come to no other conclusion than that the publication of this article on the 12th of September last in the 'Bande Mataram' newspaper, which was published in Calcutta and circulated in both these provinces, does undoubtedly come within the ban of the Act. I, therefore, agree in the order of my learned brother.