Nageswar Prasad Sharma and Others vs Emperor

Adami, J.—The three appellants have been convicted by the Additional District Magistrate of Patina u/s 124-A of the I.P.C.

Nageswar Prasad Sharma has been sentenced to two years'' simple imprisonments and to fine of Rs. 1,000 or in default to six months'' simple imprisonment, Ganesh Panre has been sentenced to one year''s simple imprisonment and Hanuman Upadhaya to 18 months'' simple imprisonment.

The charge preferred against them and on which they have been convicted is to the effect that in an issue of a paper called the "Tarun Bharat" printed at the Jagat Bhandu Press and published on the 20th January, 1924, and by an article entitled "Bhartika akash men Swatantrata ki gunj." (The Echo of Freedom in the Indian, Firmament), they brought or attempted to bring into hatred or contempt, or excited or attempted to excite disaffection towards His Majesty or the Government established in British India.

The paper called the "Tarun Bharat" and the Jagat Bhandu Press are owned by the first appellant, Nageswar Prasad Sharma, and he has been charged as being the Editor of the paper. Ganesh Panre has also been charged as Editor on the date of the publication, and Hanuman Upadhaya has been charged as the Printer and Publisher of the newspaper. (His Lordship here dwelt on some matters which are not necessary for this report and then went on to discuss the contents of the article forming the subject of the charge.) The article, as I have stated is entitled "The Echo of Freedom (or as Mr. Manuk would translate the word ''Swatantrata''--''Home rule'' or ''Independence'') in the Indian Firmament." The writer styles himself as a Tarun (young man). The first portion has a sub-head, "The success of the diplomacy of the English," and begins with, statement that the Indians have been slaves under the Foreign Rule for centuries. The article sets forth how the English came to India as merchants during the Mahomedan Rule and how the basic principle of their policy was, "by causing differences between the Hindus and Muhammadans by their ''Divide and Rule'' policy" to rule without any obstruction. The Mahomedans, without any blame to themselves, became the handle of the dividing axe and had thereby cut their own legs from beneath them.

Then a Sanskrit Sloka is quoted which likens the King to a prostitute in that his policy is a mixture of truth and untruth, harsh and sweet talk, violence and kindness, greed and liberality, daily expenditure and accumulation of jewels and riches in abundance. This sloka is followed by the translation which the author of the article would ascribe to it and this translation is correct except that for the words "daily expenditure and accumulation of jewels and riches in abundance" the translation given is "lavish expenditure of money and plundering of subjects."

The article then proceeds to show that in course of time the policy of creating differences was exposed and the people began to realize that they were the slaves of outsiders and that insults offered to them were not individual but national.

The author gives an account of the effect of the conquest of a nation. He states that the conquerors "tear from its root the language of the conquered nation and establish their own literature and system of administration and to perpetuate their existence, even create wonderful and strangling regulations which destroy trade, commerce, arts and industries, as well as the nationality of a conquered nation, and by constant subjection to suffering the sense of religion and duty and the sprouts of development of intellect among the conquered are completely blasted and the very lives of the people are converted into a state of slavery on a large scale."

Having given this description of the condition of a conquered race, the article states that this description is applicable to India at the present time. It is stated that India has been ruined in the vortex of the strategy of foreigners. "While Rome and the empires which existed at the time of the glorious era of India still flourish, India is ruined by misfortune and there are still traitors among them who obstruct the progress of the country.

The article states then that the strategy of the "Divide and Rule" policy is that it has brought about quarrels and dissensions in India and now India, which used to be the fountain head of civilization and the repository of art and treasures, in the course of time has come under the rule of nations of peoples who were barbarians at the time of India''s glory.

After stating that the times are changed now, and that the Hindus and Mahomedans have become united and realise the depth of their poverty and ruin under foreign rule, while at every step the Indians have to suffer humiliation and the principle of self determination is nothing but a farce for them The writer describes the humiliation that had to be suffered at the time of what is described as "the Punjab atrocities"; he shows that it was those very "atrocities" and the partition of Bengal which gave birth to the idea of freedom and stated that in the Punjab "cruelty was shown and at Jalianwalabagh cruel atrocities were perpetrated. The failure of the Indian Mutiny is mentioned and it is stated that since that failure the British Empire has only become more firmly established and since then "India has been emasculated."

Then comes the sentence in the translation to which I have referred and which in my opinion does not represent the true meaning of the Hindu words used. Both the translators show the sentence "To-day wild beasts tear and devour us, and we become a prey to the bullets of the Whites." Now the Hindi words are, "Aj wah din hai ki jangli pashu hamko chir kar kha jate hain, aur goron ke goli ka shikar bante hain." It is clear that this sentence can well mean "This is the time when wild beasts tear and devour us, while they are the sport of the bullets of the white men." The translators have omitted to note that the words "bante hain" have not as their subject the word "Ham" which does not appear In the sentence but the words "jangli pashu." The reference seems to be to the Arms Act Regulations expressing that while the people of India are unprotected against wild beasts these same wild animals provide sport for the white man''s bullet.

After deploring the fact that the holy nation has become impotent, cowardly and lethargic the writer goes on to state "that the martyrs have infused new life into India and the volcano has burst forth." Then follow these sentences:

It is a matter of shame for us and we Should drown ourselves (at the thought) that only one lakh of white men in India are ruling over 31 crores of us Indians In a perfectly arbitrary, irresponsible manner resorting to various political diplomacies in the administration, and are tightening the chain of our slavery by watering the tree of military rule in which we have no voice with the nectar-like water of co-operation. The country now wants to annihilate all the brute force of the foreigners and to demonstrate that India cannot be ruled by the exercise of brute force even for a day.

The article then points out that in this century all through the world a struggle is going on for self-defence and then shows how the arbitrary military monarchism in Germany and Russia has been brought to naught, in Germany by the satanic action of Bolshevism forcing the Kaiser to throw away his sword and in Russia allowing the shooting down of the Czar and his family. Finally the article states that India''s longing and struggling for freedom is natural, for dependency must bring misery, and ends by stating that the ambitions of India are the same as those of Ireland.

But the first instalment should have included another sentence which is a continuation of the theme of the words "And our ambitions and those of Ireland are the same" to the effect that Ireland is more advanced than India in the walk of freedom and the sacrifice of MacSwiney calls upon them to follow his example and sacrifice their all for the sake of the country.

Now the principles which have to be followed by the Court in estimating whether any matter spoken, written or published is such as to bring it within the purview of Section 124-A have been laid down by a series of decisions of the Courts in India and perhaps the leading authority is the charge delivered to the jury by Strachey, J., in the case of Queen-Empress v. Bal Gangadhar Tilak (1897) 22 Bom. 112. The principles are clearly set out in that charge.

Lord Fitzgerald too in the case of Regina v. Sullivan (1868) 11 Cox. Cr. Cas. 44 showed what should be the guiding principles in interpreting an article of the kind which we have to consider. We must not look to single sentences or isolated expressions but take the article as a whole and give a full, free and generous consideration and amply deal with it in a fair and liberal spirit, not picking out objectionable sentences or strong words used, nor should undue importance be given to inflated and turgid language.

We must also look to the real intention and spirit of the articles. [Queen-Empress v. Jogendra Chunder Bose (1891) 19 Cal. 35.] (His Lordship here recounted the arguments of the counsel for the defence and continued): The admissibility of the two other instalments of the article put in as evidence to show intent has been questioned by the learned Counsel, but, though it is admitted that those subsequent articles are much stronger in their language than the first instalment, it is not, I think, necessary to depend upon them as evidence of the intention of the article which is the subject of the charge.

What we have to decide, is whether the article constitutes an attempt to bring the British Government established in India into hatred or contempt or attempt to excite disaffection towards that Government. The meaning of "disaffection" has been explained in the section as including disloyalty and all, feelings of enmity, and we have to decide whether the general tendency of this article is such as to show an intention to excite the feelings mentioned in the section. The amount or intensity of the disaffection is absolutely immaterial, for if a man excites or attempts to excite feelings of disaffection at all, even in the smallest degree, he is guilty under the section, as has been pointed out by Strachey, J., in the charge to the jury in the case of Queen-Empress v. Bal Gangadhar Tilak (1897) 22 Bom. 112.

We have to decide, too, whether the character of the article is such as to bring it within either of the second or third explanations to Section 124-A; and we have to bear in mind the class of paper in which the article appears and the class of people among whom it will be circulated, and we have to remember also that though the ultimate object of the writer may be unobjectionable, if, in explaining that object, he uses language which is likely to bring the Government into contempt or to excite disaffection, Section 124-A will apply.

It is quite true as argued by Mr. Manuk that the conditions at present in India are quite different from those which existed in 1897, and that far greater freedom is given to the press now than was given in those days and things which may now be said and written with impunity would have been treated as seditious at the end of the last century.

But we have to consider the state of the minds of the people at present and the present conditions and to decide whether this article is now likely to engender feelings of hatred, enmity or disloyalty in the minds of the readers. The article is written in high flown Hindi which would not be easily intelligible to the less literate classes. The circulation of the paper is not a big one and the readers of this paper would probably be men of some intelligence who would be able to understand any double meaning that any word used might contain. It may be that expressions like the "Punjab atrocities" might be used under certain conditions and in certain criticisms of the Government without exciting enmity or disaffection.

Mr. Devaki Prasad Sinha has cited before us passages from a despatch of the ''Secretary of State from the report of Mr. Justice Rankin in the committee appointed to consider the disorders in India, also passages from Mr. Ramsay McDonald''s "Awakening of India" and Digby''s "Prosperous British India" as well as from Mr. Dadhabhoy Naoroji''s "Poverty under the British Rule." He has shown in the passages he has cited words and expressions that have been used and allowed to pass which are similar to the expressions and words used in the present article. But the character of the publications in which those words or expressions are used and their nature and also the class and nationality of the persons by whom those publications are intended to be read have to be taken into consideration; a book or report published in England is intended to inform the public in England of this day about the state of affairs in India, and it can have no intention of causing disaffection in this country or of bringing the Government established in this country into contempt. Those publications would in any case come under one of the two explanations even if published in India.

To turn now to the article, the heading of the first portion of it relates to the success of the diplomacy of the English meaning thereby the British Government in India. The word which has been translated by "diplomacy" has the some what sinister meaning of crooked policy. We are told that the basic principle of the policy of the British Government out here is to "divide and rule" and the Muhammadans have suffered by aiding in this policy.

The Sanskrit sloka is then cited and the context seems to hint that the policy of Government is little to be depended upon and very variable. The sloka is mistranslated in order to suggest that Government wastes money and plunders its subjects. It has been urged that this translation is justified since, if a king accumulates wealth and jewels, it can only mean that he obtains them by plundering his subjects. But the translation is far-fetched and it seems that the object is to hint that the Government plunders its subjects.

It is then hinted by stating, after giving a description of the condition of a conquered race, that India is in the position of a conquered race and that regulations are promulgated by Government to destroy trade, commerce, art and industries, while religion and duty and the development of intellect are blasted by these regulations and by the efforts of the British Government to make their existence here permanent, while the language and literature of the nation is being destroyed. Dissensions in India are ascribed to the strategy and the crooked policy of the Government.

The events in the Punjab are referred to as showing that cruelty and atrocities were practised at Jalianwala by the Government and then it is stated that the Government is acting in an arbitrary and irresponsible manner enforcing its rule by the brute force of militarism. It is urged that this brute force must be overcome and the rule of brute force should be brought to an end. The allusions to Russia and Germany are not altogether clear but they seem to suggest, that just as the autocratic Empires of Russia and Germany have been brought to the ground, the same must happen in India to a Government which rules by the force of the military. It is true that the article ends up by saying that the ambitions of the Indian people are the same as those of Ireland and there is absolutely nothing to cavil at an expression of the wish that India should obtain self-Government in the same way as Ireland.

But we have to consider the article as a whole and look to see whether the general tenor of the article as shown by the expression used was intended to bring the Government established by law in British India into hatred or contempt or constitutes an attempt to excite disaffection against that Government.

In my mind there is no doubt that in the minds of the readers of the article the ascription to the Government of object, as a root principle, to divide the races of India so as to strengthen its rule and to destroy the language, culture, trade, commerce, arts and industries by strangling regulations, as well as the description of the Government as a Government which rules by brute force in an arbitrary manner over a people who have no voice in the administration, could not fail to cause a feeling of disaffection and contempt, if not hatred, in the minds of the Indian reader. It may be that the description of what happened in the Punjab as an "atrocity" is a description which has been used by certain portion of the public, but it is quite evident that in the article reference is made to those events with the intention of stirring up a feeling of disaffection and enmity among all those who read the paper and to provide an argument to support and strengthen other allegations made against the Government.

In my opinion the article had the intent of bringing the British Government into hatred and contempt and of exciting feelings of disaffection against the Government. It cannot be said to be covered by the explanation; to Section 124-A and the learned Additional District Magistrate was right in the finding he came to on this point.

Having come to the above decision as to the character and intent of the article which forms the subject of the charge, It remains to be decided Whether the Appellants or any of them can be held to be guilty of attempting to carry that in intention into effect and of committing an offence u/s 124-A.

Nageswar Prasad and Ganesh Panre have both been charged as Editors of the paper, but their defences are conflicting. Nageswar, while admitting that he was Editor of the issue of the paper which was published on the 13th: January, 1924, asserts that after that date he ceased to be Editor and that Ganesh Panre, who had been a clerk in the office, became Editor in his place and was responsible for the selection of the matter which was published in the issue of the 24th January, 1924.

To support his plea he relies on the entries printed on the paper issued on that day; he shows that while on the front page of the paper of the 13th January, 1924 there is an entry just under what professes to be a picture of Mr. Gandhi of the words "Sampadak Nageswar Prasad Sharma" (Sampadak meaning "Editor"), on the front page of the issue of the 20th January. 1924, in the same place before Nageswar''s name is printed simply the Hindi letter (sic) whilst right at the bottom of the last page there is an entry "Sampadak" Ganesh Panre. He asserts that the (sic) is an abbreviation for the word "Samrakshyak," meaning "patron" and that on the 20th January, 1924 he was not Editor, but only "patron," while Ganesh was Editor as shown at the bottom of the last page, so that Nageswar could not be held liable u/s 124-A. It is his case that (sic) could not be understood to be an abbreviation of the Hindi word "Sampadak." (After referring to the evidence and the allegations of the parties, his Lordship went on. u/s 7 of the Press and Registration of Books Act, 1867 (XXV of 1867) as amended by the Press Law Repeal and Amendment Act, 1922 (XIV of 1922) the entry of the name of the Editor as such on a newspaper is sufficient evidence that on the day that newspaper was published the person bearing that name was Editor of the paper.

To bring home the offence charged in this case to Nageswar the prosecution had to prove that the abbreviation stood for Sampadak ("Editor") or if they failed in this they had to prove that he was Editor on the 20th January, 1924 by other evidence. Both means of proof were resorted to. (His Lordship next considered the evidence.) There is thus no satisfactory direct evidence that on the 20th January, 1924, Nageswar was Editor, but there is circumstantial evidence, and it is, in my opinion, so strong as to leave no doubt that in fact Nageswar was the Editor on the date of publication. (His Lordship considered the circumstantial evidence and continued.) I do not believe that Ganesh Panre was Editor of the paper at any time, and I do believe that Nageswar Prasad used him as a cat''s paw in order that an objectionable article might be published without danger to himself. Nageswar was the proprietor of the paper and as such had responsibilities as to the conduct of the paper and as to the matter to be published in it.

In this Court an objection has been made that Nageswar was prejudiced by the joint trial with Ganesh Panre; that objection was not raised in the lower Court and cannot be heard now.

I would hold that Nageswar was rightly held to be responsible for the publication of the article which is the subject of this case, and to have attempted thereby to bring hatred and contempt, and to excite disaffection towards the Government established by law in British India.

I am of opinion, however, that the sentence passed against him is unduly severe, even considering the fact that he undertook in December last not to offend again. The article in the "Tarun Bharat," while offending against the law does not offend so greatly as to justify a sentence of two years'' simple imprisonment. I would reduce the sentence of imprisonment to a sentence of six months'' simple imprisonment, the sentence of fine should be confirmed.

In dealing with the appeal of Nageswar Prasad, I have already expressed an opinion as to the liability of Ganesh Panre and have found that in fact Nageswar Prasad made him his cat''s paw. Under the provisions of Section 7, Act XXV of 1867, as Amended by Act XIV of 1922, the fact that the name of Ganesh Panre was printed in the issue of the 1st of January as Editor of the paper would be sufficient evidence to prove him to have been the Editor on that date.

u/s 8-A of the Act so amended Ganesh Panre could have come before the District Magistrate and made a declaration that his name had been incorrectly published, but that declaration has to be made within two weeks of the date of his becoming aware that his name has been so published. Ganesh Panre made no declaration u/s 8-A, his case being that he was not aware of the fact that he was shown as Editor until proceedings were taken against him. I think that this explanation is a reasonable one. (After discussing the evidence on the point his Lordship observed). Taking all the facts and circumstances into consideration I am not satisfied that on the 28th of January, 1924, Ganesh was in fact the Editor of the paper and responsible for the publication of the article. In any case he must get the benefit of the doubt and I would therefore acquit him of the charge against him.

With regard to Hanuman Upadhya, his difficulty is that he made a declaration under Act XXV of 1867 some time ago and u/s 7 of that Apt such declaration is sufficient evidence that he was Printer and Publisher of the article in the "Tarun Bharat" on the 20th January, 1924. He could only save himself from the effect of Section 8 and on the 20th January no such declaration u/s 8 had been made by him Furthermore he had in December 1923 in his petition of apology admitted that he was Printer and Publisher of the paper.

This being the evidence against him, the only way in which he could save himself was to show absence from the office in good faith at the time of the printing and publication and absence of knowledge that the seditious articles would be published during his absence. The burden of proving that he was not the Printer and Publisher was thrown upon him by Section 7. (His Lordship then discussed the evidence on the point and continued). The onus lay on Hanuman to prove that he was not the Printer and Publisher on the date of issue and in my opinion the evidence he has produced fails to discharge that onus. He has failed to prove that he was not the Publisher and Printer of the "Tarun Bharat" newspaper on the 20th of January 1924 and thus cannot escape liability according to the provisions of Section 7 of Act XXV of 1867. His conviction must be upheld, but the sentence of 18 months is, in my opinion, far too heavy.

In my opinion a sentence of three months'' simple imprisonment is sufficient. (The remaining portion of the judgment is not material for the purpose of this report).

Macpherson J.

I agree