Emperor vs Banomali Maharana

Meredith, J.—Banomali Maharana was convicted by a Magistrate u/s 153A, Penal Code, and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 200, or in default-to suffer a further three months'' rigorous imprisonment. He appealed, and his appeal was heard and allowed by the learned Sessions Judge of Berhampore, who acquitted him. Against this acquittal the Government of Orissa has now appealed.

The case against the respondent was that he had written and published, on 3rd July 1939, a small pamphlet or booklet entitled "Raiyat Bhai," and thereby, it was said, to quote the words of Section 153A "he had promoted or attempted to promote feelings of enmity or hatred between different classes of His Majesty''s subjects," namely, between the zamindars as a class and the raiyats as a class.

It is unnecessary to set out the contents of the pamphlet in detail. It was written in the form of stanzas, in the highly coloured and flowery language of poetry, embodying to a very large extent the artifice of metaphor. The hard lot and miserable conditions of life of the raiyats were first set out. It was asserted that between the exactions of the zamindar''s underlings and their creditors the raiyats had hardly the means even for the most miserable) subsistence. Illustrations were then given of the exactions, harsh methods and tyrannous treatment by the zamindar''s men. Next, the raiyats were exhorted to unite, to stand up for themselves and to resist such exactions and unfair treatment even if they died in the attempt. Then follow some passages, decrying the zamindari system altogether and prophesying that it would come to an end; that if the raiyats only united in resistance the country would surely undergo a change. The raiyats were cautioned to look out for traitors in their own ranks, and were exhorted to be prepared even to give their lives as soldiers in the cause of peace. The pamphlet wound up by the statement that the raiyat was the real proprietor of the soil, and asserted, that if the raiyats united to oppose the zamindar other classes would eventually disappear. After this, at the bottom of the last page appeared the signature of the respondent. On the back of the cover, however, something further appeared. It was as follows:

Madras Estates Land and Rent Act. Do you wish to have it sanctioned? If so, without being misguided by the soothing words of the Hon''ble Biswanath Das and Pandit Nilakanta Das, combine together and gird up your loins. Pay attention to the raiyat satyagraha and bring both the Dasses to their senses, at once as the students have done. The Land and Kent Act will of its own accord receive sanction.

To this was subjoined the respondent''s surname "Maharana." It appears that sometime in the year 1938, a bill known as the Madras Estates Land Act (Amendment) Bill had been passed by the Provincial Legislature. It had subsequently been sent up for the sanction of the Governor-General. The disposal of the matter took some time, and in July 1939, when the respondent''s pamphlet was published, the Governor-General''s sanction had neither been accorded nor refused.

The bill in question provided for substantial reductions of rent within an area of South Orissa comprising the districts of Ganjam and Koraput, one of the biggest estates within that area being that of the Raja Bahadur of Khallikote.

The respondent admitted having written and published the pamphlet, but he said it had not been directed against the class of zamindars as a whole. He had been conducting an agitation in order to try and ensure that the consent of the Governor. General would be accorded to the bill, and f the pamphlet was written in pursuance of that agitation, and was directed only against the Raja Bahadur of Khallikote and particularly his servants, or at the outside his criticisms referred only to the limited group of zamindars holding estates within the districts I have mentioned and who would be affected by the Madras Estates Land Act (Amendment) Bill. He contended that what he had written was an honest statement of real grievances, and he had no intention whatever to promote hatred between any classes of His Majesty''s subjects.

The learned Sessions Judge was not quite clear in his findings as to whether in his view the pamphlet had been directed solely against the Raja Bahadur of Khallikote, or against the servants of that zamindar alone, or against the whole group of zamindars in the Southern Orissa area, a group which he estimated as comprising only thirteen zamindars. He was, however, definitely of opinion that the pamphlet could not be regarded as referring to anything more than this limited group of zamindars, and he was of opinion that a group so limited could not be held to constitute a class of His Majesty''s subjects within the meaning of Section 153A. In this view he held that Section 153A could have no application to the case, and he accordingly acquitted the respondent.

It has been argued for the Crown that the pamphlet was directed against zamindars as a whole, and that the zamindars as a whole do form a class of His Majesty''s subjects in the alternative; if the pamphlet be regarded its referring only to the limited group of zamindars of South Orissa, even that group would form a class within the meaning of Section 153A.

Upon the question of fact, I find myself in agreement with the learned Sessions Judge. The pamphlet must be read as a whole, and the passage upon the buck cover cannot be disregarded. The circumstances attending the publication must also be taken into account. The respondent was undoubtedly conducting an agitation at the time in regard to the Madras Estates Land Act (Amendment) Bill. On 19th February 1939, there had been a raiyats'' conference at Kudala in Ganjam District within the Khallikote estate, and the respondent had distributed an opening song (Ex. C). Later, on 3rd June 1939, there had been another raiyats'' conference at Nuagada, also in Khallikote, and there the respondent delivered a speech (Ex. G). Then, as I have said, on 3rd July, the pamphlet under consideration was published, and on 2lst November 1939, the respondent delivered a speech (Ex. G-1) at a Congress meeting.

From these documents it is apparent that the respondent was conducting a local agitation in favour of the bill. That fact considered together with the passage on the back cover of the pamphlet shows, to my mind, clearly enough that it was at the abuses or fancied abuses of the zamindari system as it existed in South Orissa that the respondent was directing his attack. The contents of the pamphlet suggest the same inference, because some instances of alleged highhandedness and unfair treatment which are adduced in support of the thesis, seem to have reference to purely local matters, such as, for example, the alleged use of Pano peons to extort batta of Re. 1, and the reference to a particular forest law. I have mentioned that there are certain passages decrying the zamindari system as a whole, but those seem to be merely incidental and are in more restrained language.

The next question is whether this limited group of zamindars can be considered to be a class of His Majesty''s subjects within the meaning of Section 153A. Here again I find my-self in agreement with the learned Sessions Judge. I am definitely, of opinion that it cannot be so regarded. The case of Emperor v. Maniben Liladhar AIR 1933 Bom. 65, is authority for the view that the classes contemplated in Section 153A must be not only clearly defined and sepatable but also numerous. In a later case, Narayan Vasudev Phadke v. Emperor AIR 1940 Bom. 379, the Bombay High Court went considerably further. The learned Chief Justice in that case noted that there was some authority for the view that the word "zamindars" used in the technical sense (as proprietors of land holding under Government and paying revenue to Government) might be deemed to be a class within the meaning of Section 163A; but he was clearly of opinion that where the word "zamindars" is not used in that technical sense but merely to designate the rent-receiving classes as opposed to the rent-paying classes, persons who let out their land at rent, in that case the zamindars could not be considered as a class within the meaning of the section. A fortiori, he held very definitely, a particular group of landlords could not be considered to be, a class. In the case before him the zamindars referred to were the particular landlords to whom the peasants of Kalyan paid thier rent. The learned Chief Justice said there would be no difficulty in ascertaining that class, but he said:

I think that to bring anybody of persona within the description of a class of His Majesty''s subjects within the meaning of Section 153A, the body of persons must possess a certain degree of importance numerically. One cannot say that every group of persons is properly designated a class of His Majesty''s subjects. For example, I should say that any one who attempted to promote feelings of enmity between members of the Appellate Side Bar of this Court and members of the Original Side Bar could not be said to be infringing Section 153A, because I should say that two sides of the Bar in a particular Court could not be designated as classes of His Majesty''s subjects; they are mere groups.

The other learned Judge, who was party to that decision went further still. Wassoodew J. said:

In my opinion, the expression ''classes of His Majesty''s subjects'' in Section 153A of the Code is used in a restrictive sense as denoting a collection of individuals or groups bearing a common and exclusive designation and also possessing common and exclusive characteristics which may be associated with their origin, race or religion, and that the term ''class'' within that Section carries with it the idea of numerical strength so large as could be grouped in a single homogeneous community.

He said:

It is true that in the development of citizenship a sharp distinction has arisen between one group of citizens and another based on purely materialistic or economic conceptions. For instance, the functional group, according to the economic theory would be capable of being sub-divided into numerous smaller groups each described as a class in itself. The functional group might include the priestly class, the workers and the artisan class. Society could also be grouped according to the economic theory into the propertied class, the capitalistic class, like the sawkars, and the rentier class who live on the income of the property, and the labour class. That was not, in my opinion, what was contemplated by the framers of Section 153A of the Code. None of these groups can claim both exclusive and common characteristics which could be readily ascertained, and which, I think, constitute the essential quality of the class mentioned in Section 153A, Penal Code.

For the purposes of the present case, it is not necessary to decide whether the expression ''zamindars'' or the expression ''landlords'' used in relation to such people as a whole can be held to designate a class within the meaning of Section 153A. It is enough to follow the case I have just cited in holding that in any view a small and limited group of such persons cannot constitute such a class. Upon that point, I would respectfully say that I entirely agree with the observations of Sir John Beaumont made with reference to the zamindars of Kalyan I am confident that the Legislature in framing Section 153A never contemplated that it should be used with reference to particular small groups of people.

The learned Advocate General has relied upon Jonnalagadda Ramalingayya v. Emperor AIR 1936 Mad. 835, in which it was held that the "rich" being definitely described as zamindars, millowners and landowners formed a sufficiently ascertained class for the purposes of Section 4(i)(d), Press (Emergency Powers) Act, 1931 That ruling has no doubt bearing upon the question whether zamindars as a whole can be regarded as a class, but it is no authority for the proposition that a limited group of zamindars can form a class within the meaning of Section 153A.

Upon this view, it, must be held that e whatever be the nature of the language used in the pamphlet before us it cannot excite hatred between classes since it is directed only against the particular persons of a limited group.

It has been argued by the learned Advocate-General that in determining whether an offence has been committed u/s 153A we must have regard to the probable effect of the writing irrespective of the intention of the author. I am unable to accept that view. In my opinion, intention is the gist of the offence under that section. That, I think, appears from the nature of the explanation which has been added to the section. There is authority also for the same view. It has been held by a Bench of the Calcutta High Court in Hemendra Prasad Ghose and Another Vs. King-Emperor, , that the essence of an offence u/s 153A, Penal Code, is malicious intention. It will be observed that the word ''malicious'' is used, and the expression ''malicious intention'' actually appears in the explanation to Section 153A.

In Ishwari Prasad Sharma and Another Vs. King-Emperor, , it has been held that where the writer is quite honest in the view which he took, though it may be a wrong one, he cannot be brought within the mischief of Section 153A, Penal Code. If I may say so with respect, that is exactly my own view. I do not think this Section was ever intended to apply to the case of the honest agitator, whose primary object is to secure redress of certain wrongs, real or fancied, and who is not actuated by the base mentality of a mere mischief monger. If the writer is expressing views which he holds honestly, however wrong they may be, and has no malicious intention, I do not think he can be brought within the mischief of this section, a Section in which, as has been pointed out by the Privy Council in Annie Besant v. Advocate-General of Madras AIR 1919 P.C. 31, the Legislature has preserved a delicate balance between the undesirability Of anything tending to excite sedition or to excite strife between classes, and the undesirability of preventing any bona fide argument for reform. "In applying these balancing principles," their Lordships say,

it is inevitable that different minds may come to different results, one mind attaching more weight to the considerations of freedom of argument (and one might add, of speech) and the other to the preservation of law and order of harmony.

And so the Legislature in enacting Section 153A was careful to add the explanation, which makes plain that it does not amount to an offence within the meaning of the Section to point out, without malicious intention and with an honest view to their removal, matters which are producing or have a tendency to produce feelings of enmity or hatred between different classes of His Majesty''s subjects.

Can it be said that the respondent in the present case in publishing this pamphlet had any malicious intention of promoting hatred against any class of His Majesty''s subjects? There may possibly be evidence of some malice against the servants of some particular zamindars, and there is certainly the use of exaggerated and rather unbalanced language. But in those passages where reference is made to the zamindars as a whole as opposed to those in which there is obvious reference to particular estate servants, I find nothing to suggest malice, but merely an expression of views which are not at all uncommon amongst communists and socialists, and which, it cannot be denied, whether right or wrong, are in many cases sincerely and honestly held.

Both because I consider that the persons referred to in the pamphlet do not form a class, and because I do not find any real evidence of a malicious intention, I am of opinion that the view taken by the learned Sessions Judge was right. I would, therefore, dismiss this appeal.

Shearer, J.

I agree.