1. The accused Satya Ranjan Bakshi, is the Editor of a Calcutta daily newspaper called the 'Forward' and the accused Pulin Bihari Dhar is the printer and publisher thereof. They have been convicted by the Chief Presidency Magistrate under Section 153-A. I.P.C., in respect of certain matter published in the issue of the Forward newspaper dated 13th July 1928. The charge against them is that they promoted, or attempted to promote, feelings of enmity or hatred between two different classes of His Majesty's subjects, to wit the Europeans and Indians.
2. The statements contained in the printed matter which is now complained of have reference to a railway accident which took place at Belur soon after midnight on 8th and 9th July 1928. It would appear that a train from How-rah became derailed and that many of the carriages of the train were wrecked. It would appear further that in the course of the night a relief train, or trains, with doctors, medical staff and medical appliances came to the scene. The allegations published by the accused in the Forward newspaper are, shortly speaking, to the effect that certain Europeans belonging to the staff of the E.I. Ry., ordered injured passengers to be beaten to death and had the bodies thrown in a heap into a wagon, and that in this way the number of persons killed in the accident was increased to about 300 of whom 50 per cent were done to death with iron rods and other instruments by the staff under the direct orders and in the immediate presence of European members of the railway staff, It is established by the evidence adduced in this case, and it has not been contested on behalf of the accused at the hearing of this appeal, that there is no truth whatever in these statements. Mr. Arthur Vincent Veneables, Divisional Superintendent of the E.I. Ry, who was one of the first to arrive at the scene of the accident and who was there during the whole of the time from 1-45 a. m. onwards, has given evidence and has explained in detail about his arrival by the patrol train and the subsequent arrival of the relief train shortly after 3 a. m. He has described how the injured were attended to by Dr. Rapper himself, how the injured were made as comfortable as possible in the rear portion of the train and how the bodies of the dead were laid on the slope of the bank and put in charge of the police. It would appear that the number of dead bodies was 19 and that these were taken in a special train to Howrah about 2 p.m. on the 9th in charge of the police. Dr. Rapper has also given evidence explaining in detail the medical work which he had to do and the manner in which it was done. Neither witness was cross-examined to show, or even to suggest, that the statements to which the accused gave publicity have any-even the smallest substratum of truth.
3. Criminal proceedings against these accused were begun on 17th July and on 28th September 1928, the accused filed a written statement. The evidence does not disclose that the accused, or either of them, in their newspaper or otherwise have at any time expressed regret for their conduct in giving currency to accusations so horrible and unfounded. There is no evidence, and indeed there is no pretension, that the statements complained of were, or could have been printed or published by inadvertence or by reason of mere negligence, whether excusable or inexcusable. Indeed, having regard to the astonishing character of the statements themselves and to the prominent position given to the matter now complained of in the issue of 13th July there is no room for doubt that the statements were published deliberately and with a full knowledge and appreciation of their meaning and contents.
4. If the sole question in this appeal was whether or not these accused have wickedly and wantonly, without taking any trouble to verify and without any belief, reasonable or unreasonable, in the truth of what they published, spread broadcast accusations against certain European officials of the E.I. Ry., so foul as to be on the face of them incredible, there would be nothing to detain this Court on this evidence for more than a few moments.
5. In the written statement filed by the accused they set up as a defence the stale and ignorant contention that the allegations complained of were published by their newspaper in discharge of its duty to the public, that these allegations had been communicated to the newspaper, that the newspaper could not withhold them from the public and that the publication was with a view to letting the public and the Government look into both versions of the incident, i, e., the version contained in the allegations now complained of and the version of the railway company. This miserable plea may be brushed aside. I am not even prepared to assume, without good proof, that the accused are either so ignorant or so depraved as to imagine that there is anything in this plea. A newspaper, for the present purpose, is in exactly the same position as an individual except for the fact that it has greater facilities of giving publicity to defamatory matter. Not only has it no duty to break the law by publishing libels or seditious matter or matter objectionable under Section 153-A, it has no right to do so. The comments of the Chief Presidency Magistrate upon this plea have been expressed in somewhat pungent terms and he has rightly treated it with contempt.
6. The question before us, however, is not whether the conduct of the accused deserves to be reprehended, but whether it is proved that this exceptionally objectionable matter was published by them in the attempt to promote, or with the purpose of promoting, feelings of enmity or hatred between Indians and Europeans, which in this case means feelings of enmity or hatred in the minds of Indians as against Europeans. This is indeed the only point raised by learned Counsel for the accused in this appeal. He says and says quite rightly that it is for the prosecution to prove that the publication was done with this intention or purpose. The written statement of the accused deals with this question in the following words:
That the accused never intended to promote or even to attempt to promote any feelings of enmity or hatred between any two classes of His Majesty's subjects and never imagined that the attack contained in the letter in question on the officers and employees of the E.I. Ry. who went to the scene of the disaster in the relief or special trains could be construed in the circumstances by any reasonable or right-minded man to traduce a whole class as suggested in the charge framed against the accused, namely, the European subjects of His Majesty.
7. It may be here observed that if rumours of horrible and brutal ill-treatment of Indians by Europeans are once started, that they will reach only the ears of reasonable and rightminded men is an impossible and indeed a paradoxical assumption ; and as the accused are clearly shown to have been well aware of what they were publishing, the statement that they never imagined that their conduct would promote class hatred stands in need of a critical examination. The Magistrate's conclusion is that:
reading it as a whole no one can hesitate to say that it was written in hate and meant and likely to create hatred for Europeans as a class by Indians as a class.
8. The question is whether the Magistrate was right.
9. The matter complained of was published in a part of the paper in which a reader would expect to find the most important news of the day. The headlines are in very large type:
Railway Smash at Belur-Sufferers' Story -Killed and wounded how many.
10. I do not know that any importance attaches to the particular words used in the head lines, but the headings as printed are calculated to draw the immediate attention of the reader to the matter now in question. This matter begins by a statement:
We have received for publication quite a number of letters from those who were in the ill-fated train, who have received serious injuries but have fortunately escaped with their lives. We set out below some of these letters without any alteration. The letters will be intelligible and tell their own tale.
11. It is the first of the letters printed under this introduction which is the subject matter of the present charge. The letter is signed 'A Real Horrified Spectator' and under this nom-de-plume is the word 'Howrah' intended apparently as the address of the writer. It will be seen, therefore, that this newspaper contains a statement that the letter with which we are concerned is a letter which has been received for publication. Now, there is no proof on the part of the accused that any such letter was at any time received. It appears from the evidence of G.S. Roy, Sub-Inspector of Police, who executed a search warrant at the office of the Forward on 17th July 1928 (four days after the publication of the letter with which we are concerned) that he asked the accused Pulin Bihari Dhar for the copy of the original letter and was informed by him that he had not got it. That they did not keep copies of letters when they had printed them. No evidence has been given by the accused to show the date on which or the person from whom this letter was received and the Magistrate has pointed out very cogently in his judgment that if the letter was received at all it may or may not have been anonymous. It may also be observed that the letter as printed bears no date and that the question of the date upon which the letter was received is of some importance.
12. It is quite clear that the accused are not in a position to ask us to hold that the letter which was published was printed by them because it came from a Source which they had reason to trust or because it amounted to evidence as to which they were honestly satisfied that an investigation was required. Speaking for myself, I am not satisfied that any such letter was in fact received. Having regard to the allegations contained in the letter it is plain enough that the purpose of the accused in publishing it was a malicious purpose to do damage to some one. The question before us was I think accurately and neatly stated by Mr. Chatterjee himself in the course of his reply-'venom against whom?'
13. When I scrutinize the letter itself for an answer to this question, I observe that the letter opens with a statement as to the intention of the writer. He claims to be writing:
so that my mind and heart may be relieved of the horrors that I saw on the ill-fated night.
and he requests the Editor to publish the letter:
so that the public may know, what was actually dons by the 'Relief Train' in that night.
14. This profession of purpose is necessarily a hollow pretence as the story prefaced by it is a series of inventions. The next paragraph contains a statement that the train was going at a speed of above 40 miles an hour and that the writer and a friend when the accident happened were discussing the speed. It states that the writer was thrown about 10 feet away from the line. Then follow certain passages:
The dead were being thrown into the covered wagons one after the other and as quick as possible. I could plainly hear weeping and cries of pain and agony. Accompanied with them I could hoar heavy thuds and blows being delivered and the cries wore diminishing at quick intervals. I could hear the voice of a European, 'Jaldi Karo, Maro Osko' Somebody on my left at a distance of 15 feet cried 'Hai, Jal, Hai Marta, Babu Jal, pani'. A man came, there was a heavy blow and the dying man spoke no more. All was over with him and water had boon supplied to him forever. No more did that Indian voice cry. He had boon hushed for ever and carried away, away and thrown over the heap in the wagon.
Oh, Brothers, Oh, Indians, what a horrible sight it was. My eyes fail to describe it. Search lights were flashing in every direction. The woundod were being searched and 'killed', mind you, 'killed' not saved. Where a cry arose, a Sahib came with a light, somebody delivered a heavy blow and the Royal Indian spoke no more. Oh, Brothers, Indian blood has been lavishly spilt, all the wounded and dying wore killed and heaped into the wagons.
15. The letter then goes on to suggest that a large number of dead having been heaped into wagons, the wagons were not taken to Howrah but were taken somewhere else where the bodies were hidden or thrown into the river or the sea:
I call upon the noble Indian public to bravely come forward and ask the Government what has become of the wagon loads of dead bodies silently carried away before dawn.
I am ready to prove to the public that 'more' than 300 are 'dead' and 50 per cent could have been saved if the 'relief train' had not arrived and killed the dying with iron rods etc.... As regards proof, I dare say that I can identify 10 men of the relief party, however cleverly too they may be disguised, and even if you shut my eyes, I can recognize the European's voice (his gruff voice is still ringing in my ears).
16. The concluding sentences of the letter are chiefly of importance owing to the constant reiteration of the word 'Indian'
Indians, 300 innocent dead bodies (half of whom were alive and cried for aid) have brutally been taken to God knows where and it is up to the Indian public to trace the clue and I shall give the evidence and tell to which side the wagons went. I earnestly call upon all Indians, Barristers, Leaders, public man to whatever political party, religion, or caste they may belong to come forward and demand a public answer to where those over 300 dead bodies of those innocent, those poor, those Royal Indians, been despatched Why were the wounded killed If the authorities deny all these, I shall go out to tall the world for the cause of the departed souls. Oh I Indian, if you have any Indian blood in you, if you have any self-respect, sympathy, arise than now and come forward now, for your brothers have been treated worse than dogs. I hope all the national papers over and out-side the country ' will ' copy this report.
17. It is said for the prosecution that the intention of the accused to promote hatred against Europeans is evidenced by the fact that the main point in this tissue of miserable lies is to represent that the injured who were killed were all killed at the order and in the immediate presence of a European. That 'the constant ejaculation 'Oh? Indians' and the use of phrases like ' The Royal Indian spoke no more. ' ' Indian blood has been lavishly spilt' 'those poor, those Royal Indians, been depatched', 'Indians, if you have any Indian blood in you, ' all disclose and emphasize the the attempt to give as the prominent feature of the narrative the brutal European butchering the helpless Indian.
18. Mr. Chatterjee has pointed out that if one examines the narrative such as it is, one will see that according to the writer Indian coolies or Indians of some sort were carrying out the orders of the European members killing their fellow countrymen, it would appear, as and when required, in fact promptly and industriously using iron rods upon the dying whenever asked to do so. This, it is contended, throws some doubt upon the inference that the motive of the writer (if there was a writer outside the Forward office), and the motive of the accused in giving publicity to the story was to excite hatred against Europeans as Europeans. The point is certainly worth attention and the effect of the letter as a whole cannot be assessed by taking separate points and separate passages. If, however, it is indisputable that the European staff of the relief train were intended by the accused to be exhibited as monsters killing Indians right and left, not doing so with their own hands but making Indian subordinates do the foul work in their immediate presence, it is clear enough that one part of the intention of this lying article is in the first instance to create the bitterest ill-feeling against those particular Europeans. Beyond the fact that the objects of this elaborate malevolence are Europeans, the only other circumstance which is conveyed to the reader with reference to those Europeans is the fact that they belonged to the relief train. Had there been some evidence showing, for example, that the accused had been discharged employeee of E I. Ry. or had, or supposed themselves to have, some special grievance against the railway or its medical staff, the purpose of the accused in publishing this letter might perhaps be taken to be confined to damaging the railway company or some of its employees. I observe that the accused in their written statement speak of:
the attack contained in the letter in question on the officers and employees of the East Indian Railway who went to the scene of the disaster in the relief or special trains.
19. The learned Counsel for the accused did not succeed in conveying to me any clear idea of the defence contention as to the purpose of his clients in publishing this article, but it seems desirable to consider whether the accused under Section 153-A can escape conviction upon the footing that their purpose was to create ill-feeling against some Europeans as a means of damaging the E.I. Ry. If this line of reasoning affords no defence to the accused, I see no other defence which has any relation to the facts of this case. The circumstance that according to the imaginative narrative complained of, Indian coolies are represented as giving unresisting obedience to the savagery of the Europeans is clearly a weak spot in the invention and it is also clear that the inventor perceived this, touched upon this particular part of the story very lightly and made as little of it as possible:
A man came, there was a heavy blow and the dying man spoke no ' more, ' ' somebody delivered a heavy blow and the Royal Indian spoke no mora.
20. If it cannot be disputed that the intention of the writer was in the first instance to create ill-feeling against the European principals in this imagined brutality, the part assigned to the Indian coolies is of no great importance.
21. The defence has pointed out that after the letter complained of, several other letters were published and at the end of these is an account of the proceedings of the official enquiry held by the Senior Government Inspector of Railways on Thursday the 12th July. This includes the evidence of Dr. Rapper who was in charge of the relief operations and who stated that the number of dead was 20. It contains also the evidence of the Permanent Way Inspector in which he stated that when he inspected the road with his Divisional Superintendent shortly after the accident, he found that a pair of fish-plates had been removed from the joints on the outside of the curve. Now it is said by the defence that in this issue there was no suppression of the story told by the railway officials and that this is a circumstance tending to show that the publication of the letter complained of was not done with the intention of creating enmity against Europeans. It is said also that in addition to the letter complained of, other letters were being published and that in these other letters there is nothing tending to show the purpose of creating enmity. Some of these letters if inaccurate in important particulars have nothing in common with the story of wholesale murder contained in the first letter. One of these other letters does, however, contain a statement that about 3 a.m. coolies were overheard proclaiming with shovels in their hands an intention to finish the injured. The same letter displays also an anxiety to make out that the number of dead is far in excess of the number given by the authorities and that the accident was due to the negligence of the railway authorities and not to any tampering with the line on the part of train-wreckers. I have not discovered any reasonable ground for thinking that the defence takes any advantage from the contents of these letters upon the question of the purpose of the accused in printing the letter complained of. It is, however, a note-worthy circumstance that the letter complained of was printed in front of the report of the official enquiry by the Government Inspector of Railways. The Magistrate has pointed out that if the letter was really received from an outside source, the date of its receipt would on this question be very interesting:
If it was received on the 9th, then is it pure coincidence that it was published on the same date as the report of the enquiry, that is on the 13th
22. As it appears to me to be clear that the accused were knowingly and deliberately publishing a farrago of injurious lies, I am of opinion that whether this letter was received at all or not, and on whatever date it was received, the purpose of its publication as disclosed by the date and manner thereof was really to swamp whatever effect the publication of the official version might be calculated to produce. The pride of place to which the Magistrate has referred is intentional and has an immediate and no mere general purpose. The written statement of the accused represents that
it was thought incumbent on the Forward to publish along with such communications, the version of the railway authorities themselves referring to the identical matter,
23. In my opinion this is a plain inversion of the truth. The letter was published in a manner deliberately intended to distract from; and to nullify the effect of, the official enquiry, the report of which was little likely to sink into the minds of the ignorant or credulous reader when his mind has been prepared by the excited rhetoric, the horrors and the appeal to national sentiment of the letter complained of.
24. In P.K. Chakravarty v. Emperor A.I.R. 1926 Cal. 1188, I had occasion to point out that although the internal evidence of the words published will generally be decisive on the question of intention, they are never more than evidence of intention and it is the real intention of the accused that is the test. I pointed out also that the mere fact that ill-feeling may result or may be likely to result from the publication is not in itself sufficient and that-there may be circumstances in any such case which would rightly prevent a Judge of fact from holding that the publication was an attempt to promote ill-feeling. I drew attention on that occasion to the statement of an important principle given in In re : Amrita Bazaar Patrika Press  47 Cal. 190 at p. 225 by Woodroffe, J.:
If the words used naturally, clearly and indubitably have such tendency, then it must be presumed that the publisher intended to create the natural result of the words used.
25. The learned Judge went on to say:
and no other evidence is to say the least likely to rebut the existence of such intention;
but each case must be dealt with on its own facts. The present case is one in which the primary intention of the accused to creat ill-feeling and enmity is beyond the range of reasonable dispute. For this purpose the means employed were the dissemination of accusations so wild and horrible that their effect would obviously reach far beyond the limited range afforded by the number of persons who could read a newspaper printed in English. No one can suppose that the strongest denunciation of Europeans would if couched in general language have the same effect in the bazaars as a definite story of brutality told with reference to particular European officials. Nor can the accused be supposed to have been ignorant that when the story which they were publishing gained currency in the bazars, it would be far more likely that the object of resentment and ill-feeling would be Europeans as a class than that it would be directed against the railway administration. That it would not stop with the individuals directly libelled is clear enough. In the letter complained of the writer does all that a foolish and vulgar person can to give to his untruths the appearance of a story of outrage and to set them forth in a provocative manner with excited and exciting comment. Much pains are taken to appeal to sentiments characteristically national. It seems to me in the circumstances that the individual Europeans who are the primary victims of the criminal purpose of the accused are used in the same manner as a certain Mr. E.D. Spencer was used in the ease of Jaswant Rai v. Emperor  10 P.R. 1907 Cr. As was observed in that case:
you may tell people that they are being Oppressed and that their fellows are being murdered with impunity but you will not carry conviction unless you can give them specific instances of oppression and murder. A concrete fact appeals more to the imagination and creates a more vivid impression on the mind than any number of general statements.
26. In my judgment neither the fact that the statements complained of amount to a gross libel upon the particular individuals concerned, nor the fact that they are intended to reflect upon and do damage to the administration of the E.I. Ry. militates against or in any way detracts from the further fact that this letter was clearly calculated to promote class hatred between Indians and Europeans and that it was published by the accused with the intention to subserve this wicked purpose. The appeal should. in my judgment be dismissed.
C.C. Ghose, J.
28. I agree.