Anantanath Chattarji vs Emperor

Brough, J.—This is an application in revision by Anantanath Chatterji of Kendrapara against his conviction under Rule 39 of the Defence of India Rules for the possession of two booklets called "Red Flag" and "Struggle for Communist Unity" which were said to be documents containing a prejudicial report within the meaning of that rule. The accused was convicted by the Subdivisional Magistrate of Kendrapara on these charges and acquitted on others, having been in custody for four months, and sentenced to a period of three months'' rigorous imprisonment. On appeal to the Court of Session at Cuttack, his conviction was confirmed but his sentence was reduced to the period already undergone having regard to what the learned Sessions Judge described as "antediluvian" nature of the booklets concerned. I have perused both the booklets, and the first thing that strikes one is that they do not contain anything amounting to a report prejudicial or otherwise in any ordinary acceptance of the meaning of those words. The words "prejudicial report" are, however, defined in Rule 34 as including "any visible representation, which is an incitement to the commission of a prejudicial act". I suppose a printed book must be assumed to be "a visible representation". It is stated by the learned Magistrate that these two documents have been proscribed by the Government of Bihar under R. 40 of the Defence of India Rules. It does not appear, however, that there is any corresponding proscription by the Government of this Province and, in any case, it is not a relevant fact in the case of a prosecution under Rule 39 and ought not to have been brought to the notice of the Court. Under Rule 39 it is for the Court and not for the Provincial Government to determine whether or not a document is prejudicial.

The document "Red Flag" was, at the time of its publication, undoubtedly prejudicial. It was clearly an incitement to violent revolution. At the same time, I entirely agree with the description of it by the learned Sessions Judge. It was composed under circumstances so different from those existing at the present day that it is difficult to regard it as a serious instrument of propaganda at all. Its object was to foment revolution to prevent India being drawn into active participation in a war against Russia. Seeing that India is now fighting with Russia against Germany and Italy and with other allies against Japan to resist an immediate threat of the invasion, it is difficult to see how a document so obviously out of date could really be prejudicial. It is, however, no doubt technically within the meaning of the section, but I agree with the Sessions Judge that in case of conviction the possession of such a document would only warrant a nominal sentence. The second document "Struggle for Communist Unity" does not appear to be a prejudicial document at all.

It contains the usual communist references to revolution but only in the vaguest terms as an event likely to occur spontaneously at some unspecified future time. No evidence was adduced to show that the communist party was an illegal association and in fact I have reason to suppose that it is not. This pamphlet is nothing more than an exhortation to all communists to sink their party differences and form one united party. It did not contain, so far as I can see, any direct incitement to adopt other than constitutional means for achieving their objects.

There remains, however, the more serious question as to whether the accused has been proved to have been in possession of the booklets. The facts proved are that the accused lives in the house of his father, Babu Bijnaneswar Chatterji, a pleader at Kendrapara, and that he shares a room in the house with his elder brother, who, it has been stated, was formally detained under the Defence of India Rules. The booklets in question along with other documents, some of which admittedly belong to the accused, were found in a trunk in that room. I have perused the record of the evidence in the case, and it is proved, although the fact is not mentioned by the learned Sessions Judge in his judgment, that the trunk was common to both the brothers. There is nothing on the books to identify as the property of one brother rather than the other. In those circumstances, it is quite clear that the prosecution have failed to prove that the booklets were in the possession of the accused. The learned Sessions Judge stated that the word "possession" is looked at under the Defence of India Rules very much more stringently than under the ordinary law. There is no authority or warrant of any kind for that proposition. Words in the rules must be given their ordinary meaning in English or if they are words with a technical legal meaning their ordinary legal meaning, unless the context or an express definition necessitates their being given some other meaning.

The Advocate-General, however, called our attention to Clause (2) of Rule 39 under which any person, who had on any premises in his occupation or under his control any prejudicial report should be deemed to have contravened the rule, unless he proved that he did not know, and had no reason to suspect, that the article in question contained any prejudicial report or that it was on such premises without his knowledge or against his consent, and he argued very earnestly that this room was in the occupation of the accused and, therefore, he was guilty under the rule, unless he could prove that he did not know that the document was prejudicial or that it was not there. It is noteworthy that the accused in his examination states that he and his brother used the room, that the two booklets were not his and that he first saw them at the time of the search and did not know how they came to be there.

We may, u/s 342, Criminal P.C., take that statement into consideration, but it cannot, in my opinion, by itself constitute the proof of innocence required by Rule 89(2). It was never more necessary than at present to insist on the sanctity of that cardinal principle of English justice that it is for the prosecution to prove the accused guilty and not for the accused to prove himself innocent. If that principle is to be abrogated, it must be done by clear words, and it is the duty of the Courts to scrutinize jealously any legislative enactment which is said to have that affect and particularly so, in my view, in this country in the case of an enactment of the kind contained in Rule 39(2) because owing to the fact that the accused is not permitted to give evidence in his own defence, it would be next to impossible for any man however innocent to discharge the onus put upon him.

This case is a particularly clear example of the possible injustice. The elder brother apparently is a disaffected person, and there is nothing whatever in the evidence to indicate that these booklets did not belong to him. But it would not be enough for the Court to consider it probable that the accused knew nothing of the booklets; the Court must bold it proved before they could properly acquit. How, having regard to the circumstances and the laws of evidence in this country, the accused can possibly prove his want of knowledge of the contents of the documents I cannot imagine.

In my judgment, however, the room in which the documents were found was not in his occupation or under his control, I think the expression "control" is obviously used to represent something different from occupation and is intended to cover the case of a person who is not in physical occupation of premises but by virtue of his title or other circumstances is in a position to exercise effective control over the premises. That branch of the Section cannot apply here, and it is not, therefore, necessary to consider it in detail, but I do not see why more than one person should not be in control of the same premises at a time. The point is, however, not before us. The Advocate-General relied on the other branch of the Clause and pressed us to hold that this boy was in occupation of the room. As I pointed out in the course of argument, to accept that submission would in fact render this boy liable to punishment for the criminal acts of his elder brother whom he could not control without any chance in practice of proving his innocence. Such a contention revolts my sense of justice, but I am happy to say I, do not feel bound to accept it. "Occupation" must, in my judgment, be taken to mean effective occupation, that is to say, such an occupation as gives the alleged occupant effective control over the premises in question, and I think where more than one person are together using premises which cannot be subdivided into separate parts each in the exclusive occupation of one person, no one can be said to be in occupation of the premises within the rule. For instance, in the case of a hotel each guest would be in occupation of his bedroom and the rule would apply as to documents found therein. But if a document were found in one of the common rooms of the hotel only the proprietor could be brought within the rule as the person in control; to convict a guest facts would have to be proved by the prosecution shewing that he was in possession.

In my judgment, as the room was jointly used by the accused and his brother the room was not in his occupation within the meaning of Rule 39(2). It is an interesting commentary on the rule to observe that if the authorities had thought fit to prosecute Babu Bijnaneswar Chatterji, no doubt a most respectable citizen and wholly innocent of any real offence, he could not, under this rule, so far as I can see, have escaped conviction except by inducing one or other of his sons to confess. The application is therefore allowed and the conviction set aside. I have one further observation to make. It appears that this unfortunate boy has been in custody for nearly six months. If he was really considered by the executive authority a danger to the public, they had ample power under the rules to keep him in detention; but it is nothing short of a disgrace that a young boy coming of a respectable family and charged with what appears to me to be a merely technical offence should be detained in jail for six months.

Manohar Lall, J.

I agree that the conviction should be quashed, but I would like to make a few observations. I have perused the document "Red Flag." This was undoubtedly a prejudicial document at the time of its publication as it contains a clear incitement to violent revolution, but, as observed by my learned brother, it was composed under circumstances so different from those existing at the present day that it is difficult to regard it as a serious instrument of propaganda of any kind at all. Its object was to foment revolution to prevent India-being drawn into active participation in a war against Russia, but India is now fighting along with Russia, against Germany and Italy and with the other allies against Japan. I, therefore, find it impossible to hold that this document so clearly out of date could be called prejudicial by any stretch of reasoning. I would, therefore, hold that the prosecution has failed to prove that the document even technically, comes within the meaning, of this section. On this ground alone, I would quash the conviction.

The second document "Struggle for Communist Unity" is not a prejudicial document at all. In this view, the question as to whether the accused was in possession of any document so as to attract the operation of Rule 89 does not arise at all. I am, therefore, unwilling to give any decision as to the interpretation of Sub-clause (2) of Rule 39 upon which so much reliance was placed by the learned Advocate-General because having read that sub-clause again and again I find it difficult to ascertain the true intent of the Legislature in enacting Sub-clause (2) when Sub-clause (1) was quite clear unless it be that the onus is thrown upon the accused to prove that the document which is found on premises in his occupation or control was there without his knowledge or against his consent. It is impossible for the accused to prove the negative in this country because he is not allowed to give evidence. He may, however, prove it by means of circumstances or facts elicited in the course of cross-examination or by giving some sort of explanation when he is examined u/s 842, Criminal P.C. In this case, however, I must hold that it is established from the circumstances that the accused did not know that the document was in the trunk in which he and his brother were keeping their books jointly.