1. The petitioners before us are two in number, (1) Iswari Prashad Sharma who is the editor of a weekly newspaper published in the Debnagri character in Calcutta called 'Hindi Punch', and (2) Mukuod Lal Burman who is the printer thereof. They have been convicted by the learned Chief Presidency Magistrate of Calcutta under Section 153A, Indian Penal Code and sentenced a3 follows: the first petitioner has bean sentenced to suffer rigorous imprisonment for a period of six months and the second petitioner to suffer rigorous imprisonment for four months.
2. The subject-matter of the charge against the two petitioners is the publication of an article in the form of a drama called balidan (sacrifice) at page 1003 in the issue of the newspaper in question dated the 27th January; 1927. The immediate occasion, as far as one can, gather from the English translation of the article which has been placed before us, for the publication of the drama in question was the murder of the late Swami Shardhanand at Delhi on or about the 22nd December, 1926. The murder according to the learned Magistrate was an event which deeply moved the Hindu world and not only the Hindu world but all classes and conditions of men, and there can be no question that the Hindu community in particular all over India was intensely agitated after the assassination of Swami Shardhanand. In the drama the murder of Pandit Lekhram in Lahore in 1897 by a Muhammadan is re-called a propos of the assassination of Swami Shardhanand, and the writer after indulging in an attack on the miscreants, urges in support of his argument that the salvation of India lies in what is called the Suddhi movement, the fact that at diverse times the Hindus have not raceived at the hands of Muhammadans the treatment which they thought they had a right to receive from them. The last words are our paraphrase of many of the expressions used by the writer in the drama.
3. So far as the isolated expressions appearing in Scene 4 of the drama in question to which the learned Magistrate has drawn attention in the course of his judgment are concerned, there can be no doubt whatsoever that those expressions deserve the condemnation of all right thinking men who are familiar with the history of Islam, not only in India but in other countries beyond the confines of India. If those expressions had stood by themselves and if the article were confined only to Scene 4 the learned Deputy Legal Remembrancer would have had no difficulty in inducing us to hold that the article came within the purview of Section 153-A, Indian Penal Code. But the intention of the writer has to be judged not only from the words used in Scene 4 of the drama but from the drama taken as a whole. The drama taken as a whole, as has been pointed out, is one which was written at a time of great public excitement. It is possible that the writer may have without any malicious intention and honestly thought that he should express himself in the manner in which he did with a view to the removal of causes which according to him were promoting or had a tendency to promote feelings of enmity or hatred between different classes of His Majesty's subjects, to wit, the Hindus and Muhammadans. Bearing that in mind and reading the article as a whole from that point of view it is difficult to say that the intention of the writer of this drama was to promote feelings of enmity or hatred between different classes of His Majesty's Indian subjects. We think that the writer was quite honest in the view which he took (it may be that it was a wrong view) that the only way to prevent murders like those referred to above was to take steps in the direction indicated in the concluding portion of the drama. If that was so, the writer could not, in our opinion, be brought within the mischief of Section 153-A, Indian Penal Code; at any rate there is much in the drama which entitles us to give the benefit of the doubt to the accused.
4. In this view of the matter the conviction and sentence of the petitioners must be set aside. The petitioners who are on bail will now be discharged from their bail bonds.