1. The facts necessary for the disposal of the present application for revision are shortly these. The applicant, Sardar Diwansingh Maftoon, was, up to 20th October 1929, the printer and publisher of a weekly newspaper called the “Riyasat” in Urdu at Delhi under a declaration given by him to that effect on 5th December 1927 before the District Magistrate, Delhi, under S. 5(2), Act 25 of 1867. In his examination as an accused he also admitted that he was the printer, publisher and editor of the paper. In the issue of the aforesaid paper dated 17th August 1929, there appeared two articles (Ex. P-8) of which the translations (Exs. P-8(c) and P-8(a) are as under: (Ex. P-8(c):

“Pandit Motilal Nehru and Bhopal.”

“It had been commented upon before as to how the Princes try to suppress the public voice nowadays in order to continue their oppressions, and the leaders are entertained for this purpose. Now our special correspondent communicates that in inviting Pandit Motilal Nehru to Bhopal, he was asked on behalf of the Nawab Sahib to come to give legal advice. Simultaneously with the invitation, Dr. Ansari also pressed the Pandit Sahib to pay this visit. So the Pandit Sahib went, and by way of fees for legal advice, he was paid Rs. 20,000 and a desire was expressed that if ever he feels tired of this tours in British India, he may come to Bhopal for pleasure (Tafrih). The Nawab Sahib of Bhopal would know the complicated problem to solve which this fee for legal advice was paid, and the fact as to which ‘privy purse’ provided the money would be best known to the Publicity Officer, the Costman of Bhopal. But we also would have done justice to this generosity and favouring of leaders, if the hidden motive ibad not been to fool (ullu benana) them, and the object of this munificence was not to suppress the voice of helpless subjects. Along with British India, the people in Indian States are also waking up, and if the present rate of progress is maintained the Indian Princes will have to abandon their shameful despotism in another 15 or 20 years. The Indian Princes are comparing this awakening to a dangerous flood, and an effort is being made to win over the leaders for purposes of muzzling the agitation. For this object the Indian Princes are entertaining the Leaders. It is our duty to understand this new move in time, and whichever leader accepts the hospitality of the State Guesthouses to give him a public warning. Surely the leaders' duty is better performed by frequenting the huts of the poor than by sitting at royal tables.”

2. Ex. P-8(a) “Mahatma Gandhi will go to Bhopal.”

“Elsewhere in the present issue of our paper are given the details of Pandit Motilal's visit to Bhopal for some legal advice. Our correspondent has now informed us that after (the visit of the) Pandit Sahib, the Nawab of Bhopal is trying by all possible means, to call Mahatma Gandhi there and that Dr. Ansari has also lent his support to the invitation. Mahatma will not accept any ‘fees for legal advice.’ It has, therefore been arranged to have a purse presented to him on behalf of the public of Bhopal on his arrival and in that public purse the Nawab himself will generously participate. Those who know the inner condition of Bhopal and are aware of the qualifications necessary for success in getting employment there as also of other luxuries of the Shikar Houses can realise what personal regard the Nawab of Bhopal can have for the Mahatma ji and what motives are behind this Mahatma worship. In point of outspokenness, integrity and truthfulness as also with regard to personal character Mahatma Gandhi's is an outstanding personality among all Indian Leaders and we are not prepared to believe it for a moment that like Pandit Motilal Nehru and Malviya he is capable of accepting fees for legal advice; we consider it our duty to express our view that to give encouragement to the Ruling Chiefs while their present high-handed policy continues, is tantamount to using knife on the necks of their subjects and it is expected of Mahatmaji at least, that when he visits Bhopal, he should, instead of residing at the Royal Palaces, go and live in the huts of the poor and indigent people and form an estimate of the extent of their calamities and if possible to make the Nawab of Bhopal alive to the (vast) difference between the condition of the people in British India and that of the subjects of the Indian States.”

3. About a week after the publication of these articles Pandit Motilal Nehru gob a notice Ex. P-43(a) served upon the applicant, through Dr. Katju (P.W 21), drawing his attention to the defamatory matter contained in the said publication and demanding an unconditional apology, both to himself and H.H the Nawab of Bhopal, on the lines of a draft Ex. P-43(b) which accompanied the notice. In response to the above notice, in the issue of the “Riyasat,” dated 31st August 1929, the applicant published a note, the translation of which Ex. P-14(a) runs as under:

“Dr. K.N Katju, M.A, LL.D, writes to inform us that the allegation made in the Riyasat; to the effect that Pandit Motilal Nehru was paid Rs. 20,000 as fee is incorrect and there is no truth in the news as far as Panditji is concerned. We are sorry that such allegation against Panditji got publication in the ‘Riyasat’ and it is our duty as on honest journalists to contradict it.”

4. As this short note did nob satisfy Pandit Motilul Nehru a fresh notice Ex. P-43(d) was served on his behalf upon the applicant again demanding an unconditional apology as perdraft which had accompanied the first notice. Thereupon the applicant tendered an unconditional apology to Pandit Motilal Nehru and published the same in the issue of the “Riyasat” dated 5th October 1929, (Ex. P-15), with the exception of the scored out portion of the draft apology Ex. P-43(b) of which the translation is as under:

“We deeply regret that the articles published by us on p. 6 of issue No. 53 of the ‘Riyasat’ dated 17th August 1929, under the caption “Mahatma Gandbi will visit Bhopal” and “Pandit Motilil Nehru and Bhopal” contain statements and insinuations relating to Pandit Motilal Nehru which are totally baseless and are defamatory of him. In these articles we had in reference to the communication of our special correspondent, written that during his recent visit to Bhopal, the Pandit Sahib was paid Rs. 20,000 cash as fees for legal consultation and we had tauntingly put a question as to what was the knotty question for the solution of which the fees were meant and we had said that the Nawab of Bhopal perhaps knew it and that the Publicity Officer of Bhopal who should be called the Coatman of Bhopal was perhaps aware from what private purse the amount came; and that we should ourselves have admired this generosity and the aggrandisement of the leaders if the motive behind it was not to befool the leaders and the object of the generosity was not to stifle the voice of the helpless subjects. In the same connexion, after saying that an awakening was taking place among the subjects of the States we had allege I that the Rulers of the State? regarded this life of the people as a perilous flood: that attempts were therefore being made by them to stop the peoples voice by winning over the public leaders and that for this object, the Ruling Chiefs were extending invitations to them; that it was our duty to be forewarner of this new subterfuge and to publicly warn such a leader as accepts the invitations of the States, since the leaders can do their duty by visiting the huts of the poor people rather than by sitting at the Royal Tables.

And in para. 2 a note relating to the news, that the Nawab Sahib of Bhopal was trying to call Mahatma Gandhi to Bhopal we wrote that ‘the Nawab Sahib realized that like the Panditji the Mahatmaji would not accept the legal consultation fees and we had expressed our opinion chat in point of outspokenness, integrity and truthfulness as also with regard to personal character, Mahatma Gandhi's was an outstanding personality among all the Indian Letders and that we were not prepared to believe it for a moment that the Mahatmaji was capable of accepting legal consultation fees like Pandit Moulal and Pandit Malaviya, yet, as in duty bound, we must say that to give encouragement to the Ruling Chiefs in the existence of their present highhandedness was tantamount to using the knife on the necks of their subjects and that we could expect it at least of Mahatmaji that when he visits Bhopal he should note reside in the Royal Palaces, but should live in the huts of the poor and indigent people and thus form an estimate of their calamities.

Pandit Motilal Nehru has informed us that he did not go to Bhopal to give any legal advice and that he was not paid a single pis by the Nawab Sahib of Bhopal on any pretext whatever and that to say that he was paid anything was totally baseless and false. We sincerely accept this statement of the Pandit Sahib as true and correct and after withdrawing, all our previous statements an I the insinuations and implications contained therein we beg to tender our humble and unconditional apology to him and wish to convey our regret that such, defamatory statements about him came to be published in the ‘Riyasat’.”

5. In his letter (Ex. P-44) dated 10th September 1929 after informing H.H the Nawab of Bhopal what action he had taken for himself against the applicant Pan litji wrote as follows:

“Another point is that the man has evidently laid himself open to attack on at least two more sides Ansari and yourself. There is no reason why he should be spared. In draft apology I have served on him I have inserted a sentence or two in the nature of an apology to you, but I cannot in law insist on these sentences as I cannot constitute myself a sort of general prosecutor for all persons who have been defamed. I should therefore like you to consider some action on your own part preferably under the Princes Protection Act.”

6. In his second letter dated 1st October 1929 (Ex. P-45) Panditji wrote to H.H the Nawab, in connexion with this matter as under:

On receipt of my second notice Diwan Singh approached me in Simla and Lucknow through a number of friends to tone down the terms of the draft apology so as to make it less humiliating to him. This I flatly refused to do and insisted on the whole thing going in without the alteration of a comma or a full-stop. I have however to yield on two points on which my legal position was not very strong. The first related to the omission of the last sentence which embodied an apology to you. It is obvious that I can only go to Court to defend my own character and cannot in law insist on an apology to others even though they may have been similarly maligned in the course of the same libel. I could in no sense represent you in any legal proceedings and my insistence on retaining the last sentence would have considerably weakened the case. The Court would have told me to mind my own business and leave others to look after themselves. I justified the retention of that sentence in the interest of Dewan Singh himself but I was told that he did nob mind any action which you might take against him. I was obliged to give in. * * * * The deletion of the sentence referring to you makes it all the more necessary for you to take action under the Princes Protection Act, and I hope you will put up with the inconvenience involved in the preliminaries.”

7. It was probably on the suggestions that H.H the Nawab of Bhopal moved the Governor-General in Council for an authority, as required by Section 5 of the Indian States (Protection against Disaffection) Act, 1922, to prosecute the applicant. As the correspondence which passed between the Ruler of Bhopal and the Governor-General, though demanded by the applicant, was not produced by the complainant, it is difficult to say in respect of which of the two aforesaid objectionable articles and with regard to what particular, offences under the said Act the sanction was asked for. The sanction however was granted, in due course, and is contained in the order (Ex. P-42) which runs as under:

NEW DELHI,

6th November 1929.

“Under the provisions of Section 5 of the Indian States (Protection against Disaffection) Act, 1922, Khwaja Mohamed Akram Khan, Chief of Bhopal State Police, is hereby authorised by the Governor General in Council to make a complaint of an offence under S. 3 of the said Act against Dewan Singh Maftoon Editor of the ‘Riyasat’ of Delhi, in respect of the publication in the Riyasat in its issue dated 17th August 1929 of an article (of which a copy and translation are hereto annexed) on the ground that it brings or is intended to bring H.H the Nawab of Bhopal into hatred or contempt or excites or is intended to excite disaffection towards him.

C. WATSON,

Political Secretary to the Government of India.”

8. On the strength of the above authority Khwaja Mohammad Akram Khan, on 4th December 1929 lodged a complaint, in the Court of the “Railway Magistrate”, Hoshangabad (Mr. Nigam), against the applicant under Section 3 of the Indian States (Protection against Disaffection) Act, 1922 in respect of the first of the two articles published in the Riyasat issue of 17th August 1929 within the jurisdiction of that Court. As this allegation was rather vague the complainant, on 9th February 1930, presented to Mr. Royzada, who had in the meantime succeeded Mr. Nigam, as the Railway Magistrate, what he styled as an “amplification application” para. 3 of which runs as under:

“That to avoid any misunderstanding it seems necessary to your humble petitioner to amplify the allegation made by him in the complaint and to clearly state that this Court has jurisdiction to try the case since: (a) The offending article in the said issue of the Riyasat was published at Itarsi Railway Station, at Hoshangabad and other places within the jurisdiction of this Court, (b) The said article was also published at the Bhopal Railway Station.”

9. Later on, in his statement as the first witness for the prosecution, the complainant, on 2nd March 1932 made the following further clear statement showing bow the offence complained of was committed within the jurisdiction of the trying Magistrate:

“I have been authorised to file this complaint with respect to one offence. My complaint was with respect to publication of the offending article within the jurisdiction of this Court and I treat the publication at Itarsi and Hoshangabad Railway Stations as one offence.”

10. As Mr. Royzada proceeded on leave before finishing the trial, Mr. Syed Ahmad Husain commenced the trial de novo as a First Class Magistrate, on 5th October 1931 and concluded it on 20th June 1933. For the prosecution 21 witnesses were examined by the trying Magistrate himself and 2 were examined on commission. The complainant also filed a large number of documents relevant and irrelevant. Most of the important documents, as I shall show later on, remained unproved. On the point of the actual publication of the offending article by the applicant within the jurisdiction of the trying Magistrate the prosecution tendered the following evidence:

(1) J.M Shukla (P.W 2), the agent of the Wheeler's Bookstall at Itarsi railway station, stated that he used to sell the ‘Riyasat’ weekly from his stall and that he sold some copies of the paper which he received on 18th August 1929 presumably of 17th idem. He did not state from whom he received the copies of the Riyasat.’

(2) Mukhtar Husain (P.W 4) a resident of Harda, stated that on 19th August 1949 he had purchased a copy of the issue of the ‘Riyasat’ dated 17th August 1929 at the Itarsi Railway Bookstall.

(3) Kunwar Liaqat Shah (P.W 5) stated that a copy of the ‘Riyasat’ containing the offending article was handed over to him at the Hoshangabad railway station by his brother who came from Bhopal and that between Hoshangabad and Itarsi railway stations he and Zillul Qadar (P.W 7) read the offending article.

(4) Zillul Qadar (P.W 7) corroborated this witness.

(5) Abdul Majid (P.W 9), who is a clerk in the Railway Institute at Itarsi which is outside the railway station, stated that the ‘Riyasat’ was one of the papers received in the library from Delhi during the year 1929 and that an issue containing the offending article was received. He also stated that he had written a postcard to the manager of this paper at Delhi complaining of the non-receipt of an issue of the paper prior to 12th October 1929 and received a reply which is Ex. P-74. The witness admitted that he did not know the Urdu language and it is probable that on this account he did not state that he had read the offending article. He did not also state that to his knowledge any person read the offending article in the Railway Institute or elsewhere.

(6) Wali Mohammad (P.W 12), a resident of Harda, stated that he was the joint secretary of the Moslem Beading Room at Harda, that the ‘Riyasat’ newspaper used to be received in the said reading room in the years 1929 and 1930 and that on a requisition from Abdul Ghafur of the Bhopal State Police service he had handed to him a copy of the ‘Riyasat’ dated 17th August 1929. The witness did not state that he himself read the offending article or that it was read by anybody to his knowledge or through what agency it reached the Beading Room.

11. The last witness on the point is Abde Ali (P.W 19). He stated that he subscribed to the ‘Riyasat’ paper from the year 1927 to the year 1930, that he used ‘to get the paper by post from Delhi’ and that he had read ‘the offending article Ex. P-8.’ In his cross-examination the witness stated that his subscription used to be realized by Y.P.P, but that he had not then in his possession anything to prove that he did receive the paper by post. It is probable that on the strength of the aforesaid evidence six definite places are mentioned in the charge in respect of the offence of ‘publishing’ the offending article. The charge framed against the applicant runs as under:

“I, S. Ahmad Husain, Magistrate, First Class hereby charge you, Sardar Diwan Singh Maftoon as follows: That you on or about 17th August 1929 edited and printed in the issue of that date of the Riyasat newspaper or were the author of the article headed ‘Pandit Motilal Nehru & Bhopal’ (Ex. P-8) contained in the issue of the paper above and published the same at Itarsi and Hoshangabad railway stations between Hoshangabad and Itarsi railway stations at Itarsi, Harda and Bankheri, which; brings or is intended to bring H.H the Nawab of Bhopal into hatred or contempt or excites or is intended to excite disaffection towards him and thereby committed an offence punishable under Section 3 of the Indian States (Protection against Disaffection) Act, 1922, and within my cognizance and hereby direct that you be tried on the said charge.”

12. It is clear that the applicant was charged with and put upon his trial for nine distinct offences. In his examination as an accused the applicant denied that he was the author or publisher of the offending article or that he supplied, the copies of the paper to the Wheeler's Bookstall at Itarsi and the Indian Railway Institute at Itarsi, and to the searching question as to who supplied these papers he significantly replied that the complainant should be questioned on the point. He was not questioned whether he used to supply the ‘Riyasat’ paper to Abde Ali (P.W 19)’ or to the Moslem Eeading Room are Harda. He admitted that he had published the ‘Contradiction’ Ex. P-14 and the ‘apology’ Ex. P-15. Although considerable matter bearing on the question) of the alleged guilt of the applicant was elicited from the several witnesses for the prosecution no attempt was made by the trying Magistrate to question the applicant on these matters under Section 342(1) of the Cr PC. This is only one of the several grave irregularities which) were unfortunately committed by the trying Magistrate in the trial of this, case.

13. In a very elaborate though diffused judgment the trying Magistrate found the applicant guilty of the offence under Section 3 of the Indian States (Protection against-Disaffection) Act and sentenced him to three years rigorous imprisonment (as a Magistrate exercising powers under Section 30 of the Cr PC, although the trial was held by him as an ordinary Magistrate of the First Class) without definitely giving any finding in respect of which of the several offences specified in the charge the applicant was guilty. On appeal by the applicant the learned Sessions Judge of Hoshangabad definitely: found that the applicant was not only the editor, printer and publisher of the offending article, but was also the author of it and was also the proprietor of the Page: 95paper. The learned Judge overruled almost all the contentions of the applicant as to the illegality of the trial and the merits of his conviction and found him guilty of all the offences stated in the charge. He therefore maintained the conviction under S. 3 of the Act, but reduced the sentence from three to one year's rigorous imprisonment. The applicant has now moved this Court in revision challenging the legality and the propriety of his conviction on various grounds. The first ground of the application for revision, that Section 3 of the Indian States (Protection against Disaffection) Act was ultra vires of the enacting authority, was expressly abandoned and the other ground relating to the plea of justification was wisely not pressed.

14. The first point pressed by Mr. Kedar for the applicant was that the trying Magistrate had no jurisdiction to proceed to the trial of the present case as it was not proved that the Govenor-General in Council had authorised the prosecution of the applicant in respect of the publication of the offending article, viz., “Pandit Motilal Nehru and Bhopal” of which Exs. P-8(b) and P-8(c) are alleged to be a copy and translation. Although in his earlier statement as the first witness for the prosecution the complainant stated that both these documents were received along with Ex. P-42, from the Government of India he admitted at a later stage that he could not say whether these were originally forwarded to and received from the Government of India by the State. The witness subsequently made the following definite statement in connexion with the documents in question:

“As far as I remember, the cutting Ex. P-8(b) was received by me along with the Governor-General's authority to initiate this case……

I am unable to say who actually took this cutting Ex. P-8(b). I received it with a forwarding endorsement giving a copy of the Political Secretary's letter from the office of the Member, Law and Justice, Bhopal……

I am not able to say who made the translation Ex. P-8(c). Ex. P-8(a) was made by me. The former came to me along with the Governor-General's authority.”

15. It is on record that after the above statement was made the applicant's counsel desired

“the witness to produce in Court the copy of Political Secretary Bhopal's letter endorsed to the witness by the Secretary Law and Justice and received by the witness along with the Governor-General's authority.”

16. As has already been noticed before although the applicant's counsel also pressed for the production of the correspondence which passed between the Bhopal authorities and the Government of India concerning the sanction for the prosecution of the applicant the prosecuting counsel objected to the production of this correspondence with the result that it was not produced in Court. If this correspondence was produced it? might possibly have proved that the sanction was given with respect to the offending article. The former documents; were however, produced by the complainant at the next hearing of the case-and are marked as Exs. D-41 and D-41(a). Ex. D-41 is merely an-uncertified copy of the letter sent by the Secretary in the Political Department of the Government of Bhopal to the Secretary of the Department of Law-and Justice Bhopal. Ex. D-41(a) is however the original letter forwarding Ex. D-41 to “I.G Police for favour of necessary action.” There is a note appended to this document stating that the “‘Enclosures’ have been handed over to K.M Akram Sahib, personally.” The enclosures as appears from Ex. D-41, were “1. Order 1, Cutting front Riyasat dated 17th August 1929, p. 91. Two pages of English Translation of a, leaderette translation in the weekly Riyasat Delhi.”

17. While the authenticity of the order (Ex. P-42) was not disputed for the applicant it was vehemently contended that, on the materials on the record, it; was not proved that Exs. P-8(b) and P-8(c) were the two documents referred to in the order alleged to have been forwarded by the Governor-General with it. In my opinion this contention is well founded. The complainant has act personal knowledge that as a matter of fact these two documents were received by the Political Secretary to the Government of Bhopal from the Governor-General along with Ex. P-42. The two-documents do not bear any seal or endorsement of the Government of India, showing their identity with the two documents referred to in Ex. P-42. It was admitted, in the course of the arguments before me, that all correspondence between the State and the Government of India is carried on through the Political Agent, Bhopal, and the Page: 96Agent to the Governor-General in Central India.

18. There is no proof adduced in the present case to show that the two documents in question were received with Ex. P-42 by the Agent to the Governor-General from the Government of India, that he forwarded them to the Political Agent, Bhopal, and that the latter passed them on to the Political Secretary to the Government of Bhopal. That being the position even if Ex. D-41 be admitted in evidence, under the provisions of Section 163 of the Evidence Act, it could not be held that the identity of these two documents with those referred to in Ex. P-42 is established under the law. I however doubt the applicability of Section 163 of the Evidence Act to the present case. When the applicant demanded a copy of the Political Secretary's letter to the Legal Secretary, Bhopal, he must be deemed to have asked for such a copy as would legally be admissible in evidence according to Section 78(6) of the Evidence Act, and not the one which, on the face of it, was inadmissible in law.

19. For the complainant it was contended by Sir Tej Bahadur Sapru that under Section 114, Illus. (e) of the Evidence Act, the Court should presume that the two documents referred to in Ex. P-42 were Exs. P-8(b) and P-8(c) and were duly forwarded by the Governor-General and reached the complainant through the usual channel. Reliance was placed in this connexion on 1930 Lah. 81 1930 Lah 81, 1930 Cr C 97 , 124 IC 347 , 31 Cr LJ 692 where on the presumption that all official acts are done in a regular manner, it was held that the sanction in question was not invalid for the reason that the name of the accused was shown on the back of the paper instead of in the body of the sanction because there was not sufficient space left on the front side. The contention of the learned counsel would certainly have been well founded if there was any indication on the face of the questioned documents to show that they were the annexures to Ex. P-42. In the absence of such an indication it would be a violent presumption to raise that these were the two documents which were forwarded with Ex. P-42. The presumption could only be made that two documents mentioned in Ex. P-42 had accompanied the order; it had nevertheless to be proved that these two documents were Exs. P-8(b) and P-8(c).

20. It was also urged by the learned advocate for the complainant that since, in the issue of the “Riyasat.” dated 14th December 1929, [Ex. P-17, translation Ex. P-17(a)] the applicant had published a note under the caption “on what offending article has the case been based” and the offending article was reproduced there, Section 58 of the Evidence Act, exempted the prosecution from proving that the sanction was given with respect to the publication of the offending article. S. 58 in question runs as under:

“No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleading: Provided that the Court may, in its discretion, require the facts admitted to be proved of her wise than by such admissions.”

21. In the first place Ex. P-17 was not relied on or proved by the prosecution as an agreed admission by the applicant of the fact of the identity of Exs. P-8(b) and P-8(c) with the documents referred to in Ex. P-42. Secondly the article in question is not in the handwriting of the applicant. Thirdly there is no admission in the article that the questioned documents formed part of Ex. P-42. Fourthly no question was put to the applicant by the trying Magistrate with regard to the identity of the questioned documents. For all these reasons I overrule the contention that Section 58 of the Evidence Act, relieved the prosecution of the duty of proving the identity of the questioned documents with those referred to in Ex. P-42 in order to invest the trying Magistrate with jurisdiction to hold the trial.

22. It is now well established that where sanction is required for starting a prosecution its terms must be construed liberally. It was therefore argued for the complainant that as the order (Ex. P-42) conveying the sanction in the present case indicates that the prosecution is to be for an offence under Section 3(1) of the Indian States (Protection against Disaffection) Act of 1922 in respect of a libelous article published in the issue of the Riyasat dated 17th August 1929, it was not necessary for the complainant to prove the identity of Exs. P-8(b) and P-8(c) with the Page: 97documents referred to in Ex. P-42. For obvious reasons this contention is untenable. It is in evidence that in the issue of the “Riyasat” dated 17th August 1929 two obviously defamatory articles, the translations of which are set out in para. 2 above, were printed simultaneously. It was apparently for this reason that the apology drafted by Pandit Motilal Nehru and accepted and published by the applicant, as set out in para. 4 above, also referred to and attempted to explain away the writing of the second article entitled “Mahatma Gandhi will visit Bhopal.” The terms of the order (Ex. P-42) are very explicit. It authorizes the prosecution of the applicant only

“in respect of the publication of an article (of which a copy and translation are hereto annexed).”

23. It therefore follows that the complainant had to establish that the one article referred to in the sanction was the one of which Ex. P-8(b) was a copy and Ex. P-8(c) the translation as alleged by him. My finding then is that the complainant has failed to prove that he was authorized by the Governor-General to lodge the present complaint in respect of the article specified in the charge. It is convenient at this stage to dispose of another contention advanced by the learned Counsel for the complainant in connexion with the question of sanction, viz., that the order (Ex. P-42) authorized the prosecution of the applicant for all the offences covered by Section 3(1) of the Indian States (Protection against Disaffection Act, 1922. The section in question run) as under:

“Whoever edits, prints or publishes, or is the author of, any boob, newspaper or other document which brings or is intended to bring into hatred or contempt, or excites or is intended to excite disaffection towards any Prince or Chief of a State in India or the Government or Administration established in any such State, shall be punishable with imprisonment which may extend to five years, or with fine, or with both.”

24. As I read the section it is clear to me that it creates four distinct offences in respect of a written matter which brings or is intended to bring into hatred or contempt, or excites or is intended to excite disaffection towards any Prince or Chief or his administration. It hits anyone or more of these four persons, viz., the author, the editor, the printer and the publisher of the libellous matter. As has already been stated the terms of the order (Ex. P-42) are absolutely unambiguous. In authorizes the complainant “to make a complaint of an offence under S. 3 of the Act,” and very clearly restricts the prosecution to one of the four offences under the section by specifying that it is to be “in respect of the publication” of an article. The words (italicized,) quoted by me therefore leave not the slightest room for the contention that the prosecution was sanctioned in regard to all the four offences covered by S. 3(1) of the Act. This conclusion is further strengthened by the fact that the complainant himself put such a construction upon the scope and the terms of the order when he made the unequivocal statements quoted in para. 7 above. 22 Bom 112 (1898) 22 Bom 112 is a clear authority for the proposition that it is open to the authority sanctioning the prosecution in respect of an offence for which sanction is required under the law to make the order comprehensive or restrictive. On an objection that the sanction in that case was bad because it was not specific with regard to the objectionable articles and did not fulfil the requirements of Section 196 of the Cr PC, Strachey, J., made the following weighty observations:

“As to the first point, I am of opinion that the word ‘articles’ in the order covers and was intended to cover not only articles in the strict sense, but, generally, matter published in the paper which was considered objectionable. As to the second point, if any particular articles or any dates had been specified, the complainant would no doubt have been limited to them, but the effect of no such specification being made is to give him the widest latitude in selecting the matter to be complained of it is only necessary to see whether the complaint relates to matters falling within the words ‘certain articles appearing in the said newspaper’ and it is obvious that it does, and the order is therefore complied with. It may be desirable, and I think it is, that orders under S. 196 should be expressed with greater particularity, but I cannot read into the section restrictions which are not there.”

25. It follows then that the trial of the applicant in respect of the three distinct offences of his being the editor, the printer and the author of the offending article was clearly illegal for want of sanction and vitiated the whole proceedings: 39 Cal. 467 (1910) 37 Cal 467 , 7 IC 359.

26. I now proceed to deal with the next question raised by Mr. Kedar that the Page: 98trial had further been vitiated on account of the violation of the mandatory provisions of Sections 233 and 234 of the Cr PC. S. 233 lays down that for every distinct offence there shall be a separate charge and a separate trial except in cases covered by Ss. 234, 235, 236 and 239. S. 234 permits the consolidation at one trial of three offences of the same kind committed within the space of one year. S. 235 permits the joint trial of more offences than one provided they are committed “in one series of acts so connected together as to form the same transaction.” I am not discussing the last two sections referred to in S. 233 as they have no bearing upon the question under consideration.

27. Even on the assumption that there was the requisite authority for the prosecution of the applicant in respect of the offences of his being the author, the editor, the printer and the publisher of the offending article, it is clear that since these are distinct offences under Section 3(1) of the Indian States (Protection against Disaffection) Act, 1922, they could not obviously be consolidated for the purpose of holding the joint trial without violation of the mandatory provisions of Sections 233 and 234 of the Cr PC. Reliance was therefore placed, for the complainant, upon S. 235 ibid by urging that as the several acts of writing the offending article, editing, printing and publishing it were so connected together as to form the same transaction, the joint trial of the applicant for every such offence was legal.

28. It is indeed very difficult to accept this contention in the absence of the citation of any precedent in its support. None of the illustrations appended to S. 235 lends any support, on the contrary, each one of them seems to repel the contention. It is therefore not possible to hold that the several acts of the applicant in composing the offending article, editing and printing it at Delhi and publishing the same at six different places in the Hoshangabad District on different occasions could be regarded as “one series of acts so connected together as to form the same transaction” within the meaning of Section 235 of the Cr PC. So far as I have only discussed the effect of the joint trial of the first three offences with the others relating to the publication of the offending article.

29. I will now deal with the question if the trial could he held valid by the-exclusion of the first three offences front the charge on the ground that they could not form the subject of the trial for want of sanction. Even if such a, course were adopted the invalidity of the proceedings, arising out of the holding of the joint trial in respect of the six remaining offences relating to the publication, would still remain. It is not disputed that every publication or circulation of a libel constitutes a fresh and distinct act and therefore a separate offence: Ratanlal's Law of Crimes, Edn. 13, p. 1229, Odgers on Libel and Slander, Edn. 6, pp. 132, 139 and 380. It follows then that the applicant having been put on his trial for publishing or circulating the offending article at six different places on six different occasions the proceedings are entirely void and not merely irregular on the principle enunciated by their Lordships of the Privy Council in 25 Mad. 61 (1902) 25 Mad 61 , 28 IA 257 , 8 Sar 160 (PC). I therefore hold that the trial in the present case is entirely vitiated for the several: reasons set forth above.

30. In view of the aforesaid finding as to the illegality of the whole trial the question whether the trying Magistrate had jurisdiction to hold it assumes secondary importance. Mr. Kedar however very candidly admitted in his reply that the objection relating to jurisdiction was raised in the lower-Courts and in the opening address here on the erroneous assumption that the authority for prosecuting the applicant was also given with respect to the offence of his having edited the offending article because the word “editor” appears after the name of the applicant-in the order (Ex. P-42). On the finding then that the authority did not comprise within its scope the prosecution of the applicant for the first three offences-mentioned in the charge it follows that the trying Magistrate had jurisdiction to hold the trial of the offences relating to the publication of the offending article which was said to have taken place within his jurisdiction, because the venue of the offence relating to libel is also laid where it is published or circulated. The trial to this limited extent was therefore not is any way irregular Page: 99and no question of the applicability of Section 531 or Sections 179 or 182 of the Cr PC, relied on by the prosecution, arises on this view of the case.

31. I now proceed to consider the soundness or otherwise of the contention of Mr. Kedar that since the offence of “publishing” a libel created by Section 3(1) of the Indian States (Protection against Disaffection) Act of 1922 is confined to the place of local or initial publication of it as contemplated by the declaration of the printer and publisher given under S. 5(2), Act 25 of 1867, the applicant could not be held criminally responsible for the publication of the offending article at any place other than Delhi which was declared by him “as the place of publication” of the paper Riyasat in Ex. P-20. In my opinion Sir Tej Bahadur Sapru and the learned Government Advocate rightly characterised this ingenious contention as untenable. They urged that the word “publisher” appearing in S. 3(1) of the Act could not possibly be construed in the narrow sense of the local publisher in which it is apparently used in Act 25 of 1867, but must be given its ordinary meaning. The contention appears to proceed wholly on the erroneous assumption that the Indian States (Protection against Disaffection) Act, 1922, is a measure directed only against printing presses and persons connected with it which, on the face of it, it does not purport to be. As its preamble shows it is a measure to prevent dissemination of libels against Princes by means of books, newspapers and other documents.

32. Section 2(c) of the said Act says that:

“‘Document’ includes any painting, drawing, photograph or other visible representation.”

33. Under the last category would clearly fall manuscripts. “Publishing” in S. 3(1) ibid cannot therefore be restricted to publishing libellous matters merely turned out of a printing press or be confined to ‘publishing’ by an editor or printer thereof. As already stated by me in para. 25 above the section fastens criminal responsibility upon any one or more of these four persons, viz., the editor, the printer, the publisher and the author of any handwritten or printed libellous matter against a prince. The word ‘publishing’ must then be understood in its ordinary significance of “making known, announcing publicly, or bringing to notice” which are the meanings assigned to that word in the New Standard Dictionary of the English Language.

34. I will gave an illustration to further explain the scope of Section 3(1) of the Indian States (Protection against Disaffection) Act, as I intepret it. If A is the author and B the editor of a libel which G either prints or reproduces on a typewriter or with the hand and publishes it in the sense of making its contents known to any member of the public, all the four would come within the purview of the section. As the publication of the objectionable matter is the gist of the offence of libel, it is clear that criminal liability would not arise against the first three persons until the libel is published. It is possible that the same person may occupy all the four positions of the author, editor, printer or writer and publisher in connexion with a libel, as is alleged to have been the case with the applicant in connexion with the offending article in the present proceedings. I have therefore no hesitation in overruling the contention.

35. Equally untenable and in a way inconsistent stand was taken up by the learned counsel for the complainant and the learned Government Advocate by urging that in the case of the prosecution of a person like the applicant for publishing a libel contained in a newspaper the declaration given by him under S. 5(2), Act 25 of 1867 is prima facie proof, under S. 7 of that Act, of his having been the publisher at anyplace other than the declared place of publication wherever the offending article, subsequent to the initial publication, might be published and that no further proof is legally required to connect the accused with the subsequent publication. In other words the contention was that the declaration with regard to the particular place of initial publication holds good in respect of the subsequent publications at other places. The only case cited, by Sir Tej Bahadur Sapru as a direct authority for this proposition, was 22 Bom. 112 (1898) 22 Bom 112 and emphasis was laid on certain observations of Strachey, J., appearing at pp. 1291 and 130 of the report, which will be set out later. The learned Governments Page: 100Advocate cited: 71 R.R 679(5) in support of the same proposition.

36. I may note that this contention was raised only in connexion with the question of the responsibility of the applicant for the publication of the offending article, at different places in the Hoshangabad District in, case the evidence on record was held legally inadequate to connect him with that publication. I further note that Mr. Kedar also relied on the aforesaid observations in refutation of this contention. Before dealing with the merits of the contention it is necessary, in the first instance, to examine and appreciate the provisions of Act 25 of 1867 relating to declarations. As its preamble shows the measure was enacted to provide for the regulation of printing-presses and of periodicals containing news, etc. S. 3 lays down that on every book or paper printed within British India:

“the name of the printer and the place of printing and if the book or paper be published the name of the publisher and the place of publication.”

shall be printed legibly on it. S. 5(2) provides that the printer and the publisher of every such newspaper shall appear before a Magistrate having local Jurisdiction and make the following declaration:

“I A.B, declare that I am the printer or publisher, or printer and publisher of the newspaper entitled…. and printed or published, or printed and published, as the case may be at….”

37. The same sub-section further requires that:

“the last blank in this form of declaration shall be filled up which a true and precise account of the premises where the printing or publication is conducted.”

38. Sub-S. (3) requires that if:

“the place of printing or publication is changed, a new declaration shall be necessary.”

39. Omitting such words as are not necessary for the determination of the question under consideration I will reproduce S. 7, Act 25 of 1867:

“In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration; that the said person was publisher of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration.”

40. It is to be noted that the provisions of the Act lay special emphasis on the place of the original publication and do not at all refer to places of subsequent publications. The form of the declaration not merely requires the mention of the original place of publication but also the description of the premises where the printing and publishing is to be carried on. That being the position the presumptive proof of publication raised by S. 7 of the Act must be understood as referring only to the place specified in the declaration and not to places of subsequent publications elsewhere which the declarant could not possibly dream of at the time of making the declaration. It is significant to note that in refuting Mr. Kedar's contention on the point dealt with in paras. 31 to 33 above it was admitted by the learned counsel for the complainant that the word ‘publisher’ was used in Act 25 of 1867 only in the limited or narrow sense of the local publisher. It is not permissible, by the rules of interpretation of statutes, to read into the plain words of S. 7 a meaning, which is sought to be placed on them by the learned counsel but which they do not apparently bear.

41. In 71 R.R 679(5) relied on by the learned Government Advocate was decided in 1846. It was an action to recover damages from the defendant who was the printer and publisher of a paper in London. A copy of the said paper containing matter defamatory of the plaintiff reached Chatteris in the Isle of Man where the plaintiff resided and was found placed on the table of the public reading room there. For claiming special damages the plaintiff had to prove that the subsequent publication of the defamatory matter at Chatteris was by or at the instance of the defendant who was the declared publisher of the paper in London. It seems to have been held that because the defendant was the statutory publisher it was enough to connect him with the publication of the libel at Chatteris and reminder him liable for enhanced damages. It was admitted by the learned Government Advocate that the Act in fore in 1846, when this case was decided, was an Act of 1799, viz. 39 George III, C. 79 as amended by an Act of 1839, viz. 2 Victoria, C. 12. Ss. 15 to 33 of the Act of 1839 (39 George III C. 79) were admittedly Page: 101repealed in 1869. Inspite of the diligent search by the learned Government Advocate in the Law Libraries of Nagpur a copy of the Act which was in force in 1846, and on the basis of which the liability for the subsequent publication at Chatteris was fastened upon the defendant, in the case cited, was not found available for reference. It is therefore impossible to say if the provisions of the aforesaid English statute corresponded in any measure with those of Section 7 of the Indian Act 25 of 1867. Moreover it is now well settled that in interpreting the statutory provisions of an Indian Act the Courts should examine the language of the Indian statute itself uninfluenced by any consideration derived from the English Law on which it might have been based. In 55 Cal. 519 1928 P.C 16 , 108 IC 361 , 55 IA 96 , 55 Cal 519 (PC) at pp. 527 and 528 their Lordships of the Privy Council made the following observations on the point:

“It is a sound rule of interpretation to take the words of a statute as they, stand and to interpret them ordinarily without any reference to the previous state of the law on the subject or the English Law upon which it may be founded; but when it is contended that the legislature intended by any particular amendment to make substantial changes in the pre-existing law, it is impossible to arrive at a conclusion without considering what the law was previously to the particular enactment and to see whether the words used in the statute can be taken to effect the change that is suggested as intended.”

42. In a case decided about a month earlier 1928 PC 2 1928 P.C 2 , 107 IC 14 , 55 IA 18 , 7 Pat 221 (PC) at p. 2, their Lordships had said:

“It has often been pointed out by this Board that where there is a positive enactment of the Indian legislature the proper course is to examine the language of that statute and to ascertain its proper meaning, uninfluenced by any consideration derived from the previous state of the law or of the English Law upon which it may be founded.”

43. In 1924 P.C 40 1924 P.C 40 , 80 IC 1038 , 51 IA 28 , 51 Cal 304 (PC) it was observed that when the point to be decided arises under the law of India reference to English law is unnecessary. In 60 Cal 1029 Calcutta, 1933 P.C 145 , 143 IC 145 , 60 IA 196 , 60 Cal 1029 (PC) at p. 1034 it was observed

“that the invocation of the Imperial Income-tax Code and of decisions pronounced upon it is apt to be very misleading in the interpretation of Indian Income-tax Legislation which is framed on other and fortunately much simpler lines.”

44. In 51 Cal 745 1924 Cal 864 , 84 IC 154 , 51 Cal 745 at p. 759, Ghose, J., observed:

“It is fruitless to endeavour to interpret the rules relating to procedure under the Indian Act by reference to what has been decided with regard to another statute in England on different considerations, even if the language of the two statutes had been the same.”

45. I must therefore hold that the English case cited, even if the Act under which it was decided was available for reference, could afford no precedent for the decision of the point under discussion. The observation in 22 Bom 112 (1898) 22 Bom 112 relied on by the counsel on both sides, for their respective contentions are these:

“As to the preliminary question of the connexion of the accused with these articles, I will take the case of the prisoner Tilak first. The Kesari is a weekly paper, published in Marathi every Tuesday at Poona. It has a considerable circulation, having six or seven thousand subscriber, not only in Poona, but in may other places, including Bombay. This particular issue of the 15th June contained these two articles, and it was sent by post from the office at Poona to the subscribers in Bombay and elsewhere. So the paper's publication extended to Bombay. I only mention this matter of publication in Bombay, because it gives this Court jurisdiction to try this case. Sending the newspaper by post from the office where it is published to other places constitutes in law the publication in Bombay or any other place to which it is so sent. It is not denied by the defence that there was this particular publication in Bombay. It is in evidence that a copy of the paper containing-these articles was sent from the office, and posted at Poona on the 15th, and reached a particular subscriber at Bombay on the 16th of June. The prisoner Tilak is the proprietor and editor of that paper, and he is also the publisher. He has not attempted to dispute that, but has admitted it. He has also, in his statement before the committing Magistrate, admitted that he was cognisant of the fact that the paper was despatched to various places, including Bombay. It is further in evidence that before any matter is published in the Kesari, proofs are submitted to him. Upon the evidence you would be justified in holding that he is the publisher of this paper, and also the publisher of these particular articles in the paper. He has signed a declaration under an Act which the legislature passed in 1867, and that declaration is in evidence. The Act requires the publisher of every newspaper to make a certain declaration that he is the publisher of it. The declaration in regard to the Kesari was made by Tilak some time in 1887. The law says that may be taken as sufficient prima facie evidence that the person signing the declaration is the publisher of every part of any paper bearing a name corresponding Page: 102to that mentioned in the declaration and therefore under that Act, in the absence of any evidence to the contrary, you will be justified in holding that the prisoner Tilak was the publisher of every article and every word in the Kesari. He published it through his servants; and it must be taken as a fact, until the contrary is proved, that he authorized them not only to print it, but to give it out to the world and to distribute it in Poona and various other places, among them being Bombay. You will be justified in holding, in the absence of any evidence to the contrary, that Tilak was the publisher, and that he published these particular articles at Bombay by causing the paper containing them to be sent to and distributed in Bombay through his agents on 15th June. The prisoner has not disputed, but on the other hand has boldly avowed, his connection with the paper. He has not attempted to shirk any responsibility which attaches to him in respect of these articles.”

46. For a proper appreciation of the aforesaid observations it is necessary, in the first instance, to remember that they were made by the learned Judge in the course of his charge to the jury which probably accounts for the repetition of the same facts and directions more than once in the quotation. Secondly it must not be forgotten that the responsibility for the publication or circulation of the seditious article in Bombay was not denied by the accused either in the committal proceedings or at the trial. The learned Judge was thus not called upon to give and therefore must not be understood to have given his considered decision on the question of the precise presumptive value of the declaration given by the accused under S. 5(2), Act 25 of 1867—a point which has been the subject of so acute a controversy before me. As I analyse the observations cited the following facts appear to have been proved by the prosecution and the accused did not controvert any of them: (a) that the accused was the proprietor, editor and publisher of the paper which contained the seditious article, (b) that before any matter was printed in the paper proofs used to be submitted to him, (c) that he was cognisant of the fact that from the office of the original publication at Poona copies of the paper used to be sent by post to the subscribers at Bombay and other places, (d) that he had made a declaration under Act 25 of 1867 that he was the publisher of the paper, and (e) that he published the paper through his servants.

47. After enumerating the facts in (a), (b) and (c) above the learned Judge told the jury that they would be justified in holding that the accused “was the publisher of this paper and particular articles in the paper”. After this the learned Judge drew the attention of the jury to the fact in (d) and explained to them what the law said in respect of the declaration and concluded that in the absence of any evidence to the contrary they would be justified in holding that he was “the publisher of every article and every word in the Kesari”. The word “publisher” appears to have been used here in the sense of the publisher at the place specified in the declaration. This conclusion of mine derives considerable support from the following observations of the learned Judge appearing on p. 132 of the report of the case:

“But this does not apply to Tilak. He stands in a different position. Tilak was the proprietor and publisher of the paper, and he must be taken as authorising the publication of everything appearing in the paper. No evidence has been called on his part to refute or rebut that position. He must be presumed to have been cognisant of what was published in his paper.”

48. The learned Judge then stated the last fact proved, viz. that the accused “published it through his servants” and evidently asked the jury to presume from this fact that the accused must have authorised his servants not only to publish or circulate the paper in Poona, but at other places including Bombay and to return a finding that he had published the offending article in Bombay which invested the Bombay Court with jurisdiction to hold the trial. This was then not a case in which there was no evidence, apart from the declaration, to connect the accused with the publication or circulation of the seditious matter in Bombay. The presumption that he published the article in Bombay appears to have been raised solely from the facts proved that he was the proprietor of the paper which was published by him through his servants at places outside the one mentioned in the declaration. The case is therefore no authority for the proposition contended for. I am fortified in this conclusion by the fact that Sir Hari Singh Gour also takes the same view of the case. In para. 1241 of his Penal Law of British India, Vol. 1, Page: 103Edn. 4, the learned author states as follows:

“The venue of the offence is laid where the sedition was written or spoken or where it was published by the authority or with the assent of the accused”

and cites 22 Bom. 112 (1898) 22 Bom 112 in support of the proposition. It also appears from paras 10 and 11 of the learned Sessions Judge's judgment that for the complainant reliance was placed before him, on the aforesaid case for the view that as the applicant was proved to have been the proprietor of the paper, in which the offending article was originally published, and copies of which were sent down to different places in the Hoshangabad District at his instance by his employees he must be deemed to have published the same within the jurisdiction of the trying Magistrate. That absurd results, which could not possibly have been contemplated by the Legislature in enacting S. 7, Act 25 of 1867, would follow, if the present contention is accepted, can forcibly be illustrated by a simple example: Suppose that A, who was a passenger from Delhi to Bombay purchased, from the railway book stall at the Delhi station, a copy of the Riyasat paper of 17th August 1929 containing the defamatory article which is the subject matter of the present prosecution. After reading the paper at his leisure in the train the threw down the copy, on the platform of the Itarsi railway station, as a waste paper unnoticed by anybody. It was subsequently picked up by B, a member of the Bhopal State Police, who happened to be on the platform awaiting the train to take him to Bhopal B read the offending article at Itarsi and after reaching his destination handed over the paper to the complainant just to bring to his notice the offending article. We will also assume that this copy was tendered in evidence in the present case and B when examined as a witness simply deposed that. The found the paper lying on the platform of the Itarsi railway station, but did not know how it came there. This evidence would undoubtedly prove the publication of the offending article within the jurisdiction of the trying Magistrate. It is obvious that neither the complainant nor the applicant could, cinder the circumstances, know that A was the person reaponsible for the publication of the libel at Itarsi railway station.

49. It is clear that the Court would be doing a manifest injustice in presuming, under S. 7, Act 25 of 1867, merely on production of Ex. P-20, that this publication at Itarsi was by the applicant until the contrary was shown by him. All though the learned advocate for the complainant was unable to point to any evidence directly connecting the applicant with the sale of the Riyasat paper from the Wheeler's Bookstall at Itarsi the learned Government Advocate asked me to presume, that the applicant was responsible for the publication of the paper at Itarsi and five other places specified in the charge, simply from the fact that he was its editor,

“because the editor of a newspaper intends that it should have a wide circulation.”

50. It appears to me that this proposition was too widely stated. It is common knowledge that in the majority of cases the editor of a newspaper is generally a paid servant of the proprietor drawing a definite sum of money as his remuneration and receives no commission on the sale proceeds of the paper. It is thus the proprietor of the paper and not its editor who may be presumed to intend a wide circulation of the paper and the consequent increase of his income. Neither can such a presumption be drawn against a printer and publisher who have given declarations under S. 5(2), Act 25 of 1867 unless it is proved that they have a direct pecuniary interest in the sale of the paper which they were paid only to print and initially publish. Neither can a salaried editor, printer or publisher of a newspaper be held constructively responsible for the circulation of the paper at places different from the place specified in the declaration given by him under S. 5(2), Act 25 of 1867 on the principle “that a person is presumed to intend the natural consequences of his act” as was also contended for by the learned Government Advocate. Circulation of a newspaper at places different from the place specified in the statutory declaration cannot be regarded in law as a natural consequence of the fact of editing, printing and publishing it at the place specified in the declaration. No case was cited before me, nor could I discover any, in which a paid Page: 104statutory editor, printer or publisher was held criminally responsible for the circulation of the libel appearing in his paper at places different from the declared place of publication merely on the presumption that he must have intended to circulate it, or for the only reason that he must be presumed to have intended that the natural consequence of his accepting the service he was paid to discharge at a particular place would be the circulation of the libel at places different from that specified in his declaration. I must therefore overrule both these contentions as unsound.

51. The difficulties and dangers of the application of the doctrine of constructive liability enunciated in 1 N.L.R 134 (1905) NLR 134 on which admittedly this branch of the argument was founded, to the provisions of Section 3(1) of the Indian States (Protection Against Disaffection) Act 1922, would better be illustrated by a simple example. X is a newspaper printed and initially published in Bombay. A is the proprietor of X and emplys in his service, on fixed salaries, B as editor, C as printer and D as the statutory publisher of the paper. E, a correspondent of X, sends to B an article containing a libel against a Prince and the article is printed and published in X. X has a wide circulation and in the ordinary course reaches Delhi where it is sold by E, a newspaper agent, to his regular constituent G. The Prince, against whom the libel is published in X, after obtaining the requisite authority from the Governor-General in Council under Section 5 of the aforesaid Act, gets a complaint lodged against B, C, D and E through his Inspector-General of Police in the Court of the District Magistrate, Delhi, for “publishing” or circulating the libel in Delhi, at the trial no proof is tendered to connect any of the accused with the publication of X in Delhi though proof is given that E was the author, B the editor, C the printer aud D the publisher of X in Bombay. Would the trying Magistrate be justified in holding the accused criminally liable for “publishing” the libel in Delhi on the presumption that each of them intended to publish it in Delhi or for the reason that the natural consequence of their several acts respectively of editing, printing and initially “publishing” and composing the libel in Bombay was the “publication” (circulation) of it in Delhi? It is obvious that the answer to the question must be in the negative.

52. For all these reasons I have no hesitation in holding that at the trial of a person for publishing a libel contained in a newspaper, the presumption permitted to be raised by S. 7, Act 25 of 1867, as to his identity with the publisher of the offending matter, on production of the copy of his declaration given under S. 5(2) ibid, is restricted to; the prima facie proof that he was the publisher only at the place specified in the declaration and does not extend to the proof of the fact that he was also, the publisher of the libel at places not specified in the declaration. I now proceed to consider the contention of the learned counsel for the applicant that the evidence on record is legally insufficient to sustain the finding reached by the two Courts below that the applicant was responsible for the publication of the offending article at several places within the jurisdiction of the Court. For the prosecution it was arguedi that since the matter of the applicant's, connexion with the publication of the offending article is a question of fact and was, upon evidence, found proved, this Court should not interfere with the finding of fact in revision. It is true that although the powers of this Court to interfere with findings of fact in revision are not in any way restricted; by Section 439 of the Cr PC, in practice they are only exercised in exceptional cases and under exceptional circumstances. They are however invariably exercised in cases where it is established that the findings of fact reached, by the two Courts below are based either on no evidence or on inadmissible evidence or on legally inadequate evidence or are perverse. As an instance I may cite the latest case of in Revn. No. 360 of 1933 Krishna where the learned Judicial Commissioner interfered with a concurrent finding of fact on the sole ground that the residue of the evidence which was not disbelieved? by the two Courts below was legally insufficient to sustain it and the conviction was set aside. I am entirely in Page: 105agreement with the two Courts below and the fact was not disputed for the applicant before me that the evidence set out in para. 9 above is sufficient to prove the publication of the offending article at several places within the jurisdiction of the trying Magistrate. But in my opinion it entirely fails to connect the applicant with that publication as required by law. The learned Sessions Judge has based his finding on the matter of the applicant's connection with the publication solely on the fact, which he held established, that the applicant was the proprietor of the paper and the implications arising out of it. But if the very foundation on which the finding was based is held to be slippery, it follows that the conclusion reached must fall down. The complainant as P.W 1 stated in his examination-in-chief that the applicant was the proprietor of the paper in which the offending article was published. When the Counsel for the applicant desired to cross-examine him by putting the question:

“Now give details of your information concerning the accused being a proprietor of the paper?”

the trying Magistrate ruled it out as irrelevant. The order is worded as follows:

“The question is disallowed as the accused is not being prosecuted as Proprietor of the Paper and his being a Proprietor is not a fact in issue or a relevant fact.”

53. It was conceded by Sir Tej Bahadur Sapru that this order was absolutely incorrect and therefore indefensible Having passed the aforesaid order the trying Magistrate further erred in permitting the Counsel for the complainant to elicit the information, that the applicant was the proprietor of the paper, in the long cross-examination of Gajjan Singh (D.W 4) and Sardar Ali Sabri (D.W 7). The applicant was neither questioned on this point in his examination as an accused nor could he possibly cross-examine his own witnesses on it. It was evidently upon the evidence of these two witnesses for the defence that the learned Sessions Judge held that the applicant was the proprietor of the paper and based his further finding, on the point of the applicant's connexion with the publication at several places in the Hoshangabad District, on the fact that the applicant was the proprietor and had employed managers. This is what the learned Sessions Judge states in paras. 10 and 11 of his judgment:

“There is also evidence of the witnesses of the accused that Diwansigh is the proprietor of this paper. He is the owner of the Riyasat Press and used to manage everything regarding the publication (see the evidence of D.W 7, Sardar Ali Sabri, the last sentence of his cross-examination). * * * My finding is that the appellant is the proprietor of Riyasat paper and Press and that he employs managers who send his paper to different places as per his instructions. Presumption is in favour of the fact on the evidence on record that papers at Indian Railway Institute and Wheeler's stall are received through the appellant who is the proprietor of the press and this presumption is not rebutted by any cogent and reliable evidence by the accused. * * * I find that the Riyasat issue was sent to Itarsi Railway Institute at Wheeler's Book-stall as per instructions of the appellant (proprietor) and that he is responsible for its publication at Itarsi.”

54. It need hardly be said that the procedure adopted by the learned Judge of basing his finding upon this inadmissible evidence was wholly erroneous, the more so when he notes that the cross-examination of the complainant on this point was wrongly disallowed by the trying Magistrate. It follows then that there is no legal evidence on the record to support the finding of the Sessions-Judge that the applicant was the proprietor of the Riyasat paper at the time of the publication of the article which is the subject-matter of the charge.

55. Having held that the applicant, was the proprietor it was apparently an easy step for the learned Judge to hold that:

“Exhibits P-39 and P. 40, a notice in the issue of 20th July 1929 and 7th September 1929 clearly prove that the accused kept the paper for sale at Wheeler's Railway Book-stall at Itarsi and the explanation given to the contrary as given by Gajjan Singh (D.W 4) does not appear convincing to me and I therefore discard it.”

56. Gajjan Singh (D.W 4) stated that he was the manager of the Riyasat paper and as such it was his duty to make arrangements for the sale of the paper directly through the Railway bookstalls and other agencies. The learned Sessions Judge brushed aside this sworn testimony evidently for no other reason than that the applicant was proved to have been the proprietor. No evidence was pointed out to me by the learned Counsel for the complainant which definitely proved that the applicant kept the paper for sale at the Wheeler's Book-stall or supplied it to the institute at Page: 106Itarsi. On the contrary there is the unrebutted testimony of Gajjan Singh that the firm of Wheelers at Allahabad were the agents and that copies of the paper used to be supplied to the representative of that firm at Delhi. Gajjan Singh (D.W 4) further stated that the postcard (Ex. P-74) produced by Abdul Majid (P.W 9) ‘was not issued from my office because it bears no number nor my signature.” For circulating the paper by post in outlying places Gajjan Singh assumed the sole responsibility upon himself. I may note here that there is admittedly no finding given by the learned Judge on the point of the publication of the offending article by the applicant at Hoshangabad Railway Station between Hoshangabad and Itarsi Railway Stations, at Harda and at Bankheri (items 2, 3, 5 and 6 of the charge relating to publication).

57. Although the evidence of Nazir Husain (P.W 15), Ziauddin (P.W 17) and Mubarik Husain (P.W 20), taken together, covers 29 sheets of typewritten matter the learned Sessions Judge has lumped and compressed it in one sentence in para. 10 of his judgment in these words: “Notwithstanding this”… alluding to the fact that the cross-examination of the complainant on the point of the proprietorship of the paper was wrongly disallowed by the trying Magistrate:

“there is evidence of witnesses P.W 15, Nazeer Husain, P.W 17, Ziauddin, and P.W 60, Mubarik Husain, who depose that Diwansingh was the lessee of Alla or Ittihad Press, where the Urdu portion of Riyasat used to be published during 1929, that he used to give instructions to manager to send the papers to different places and the paper was being published under his direct instructions and supervision.”

58. It is unfortunate that in a case of this magnitude the learned Sessions Judge did not feel the necessity to scrutinise the evidence of these witnesses in any way and contrast it with that of Gajjan Singh (D.W 4) and Sardar Ali Sabri (D.W 7) in order judicially to determine the question of the responsibility of the applicant for the publication of the offending article within the Hoshangabad District. I have read the whole of this evidence very carefully and am definitely of opinion that the testimony of the aforesaid three witnesses for the complainant is too general and indefinite as compared to that of the two defence witnesses on the point under consideration. Nazeer Husain (P.W 15) who did the job work of a caligraphist deposed that he had caligraphed the offending article from a manuscript given by the applicant but Azfar Husain (D.W 5) said that he did this work from the manuscript of Sardar Ali Sabri (D.W 7). Nazeer Husain, (P.W 15) did, however nowhere state in his evidence, what the learned Sessions Judge says he did, viz., that the applicant used to give instructions to the manager “to send the papers to different places.” The evidence of Ziauddin (P.W 17) was either badly given or imperfectly recorded and it is therefore difficult to determine if he was really an employee on the staff of the Riyasat paper in August 1929 when the offending article was printed. The evidence of this witness on the point of the applicant's connexion with the circulation of the paper at places other than Delhi, as quoted below, will speak for itself:

During my service as Manager of the Press (Ittihad) I would see the accused on my going to the Riyasat Office and the accused would occasionally (Ittifaqia) come to the Press. (I note that Ittifaqia only means casually.) I do not exactly remember what he used to do in coming to the Press, but he would inquire as to whether work was going on all right and whether work was being received…. The printing of portions of the Riyasat Paper at Ittihad Press was done under the instructions of the accused. The Riyasat Paper used to be published and posted from the Office under the accused's instructions. This I saw when I happened to go to the Riyasat Office.”

59. The witness was subsequently appointed as the circulation clerk in the Riyasat office under the Manager, Gajjan Singh (D.W 4), and described his duties in these words:

“My duty as circulation clerk in the office of the paper was to receive copies and to make entries accordingly in the register and also to have printed chits of addresses pasted on the wrappers and to write in manuscript when necessary.”

60. He was not questioned if he posted the copies of the Riyasat to P.Ws 1, 9, 12 and 19 or if these persons subscribed to the paper which were the two essential points to be proved in the case. It is indeed a pity that no better evidence than that of Mubarik Husain (P.W 20), a dismissed peon of the Riyasat Office, should have been available to the complainant to prove the several important facts in the case which were sought to be proved by the testimony of this witness. Page: 107I would say no more about this witness than that his evidence impressed me most unfavourably and left upon me the impression that he was a badly, coached up witness. I have therefore not the slightest hesitation in holding that the evidence for the prosecution that failed to establish the connexion of the applicant with the publication or circulation of the offending article at any of the six places, mentioned in the charge.

61. I must not fail to note here that as the applicant was not questioned on the several points relating to the circulation of the paper deposed to by the prosecution witnesses, Nazeer Husain (P.W 15) Ziauddin (P.W 17) and Mubarik Husain (P.W 20), they should not have been pressed against him by the two Courts below in recording his conviction. In 1918 Nag 143 1918 Nag 143 , 48 IC 487 , 20 Cr LJ 12 a Bench of this Court accepted the soundness of the view propounded in 17 CP LR 113 (1904) 17 CP LR 113 on the scope of the mandatory provisions of Section 342 of the Cr PC, and ordered a retrial, on the ground that the accused was not questioned and her explanation obtained on certain points brought out in the prosecution evidence which apparently went against her. In the opinion of the Bench such a defect of procedure had vitiated the whole trial. On the strength of 25 Cal 736 (1898) 25 Cal 736 , 2 CWN 484 it was contended by Mr. Kedar that since the settlement between the applicant and Pandit Motilal Nehru in respect of the offending article was in the nature of a compromise of an offence under S. 500, I.P.C all the evidence relating to it tendered by the complainant at the present trial was irrelevant and should not have been admitted by the trying Magistrate. In my opinion this contention is unsound. There was no compromise by the applicant with Pandit Motilal Nehru as contemplated by Section 345 of the Cr PC, because it is admitted that before the matter went to Court the applicant tendered an unqualified apology which purged him of the charge of defamation against Panditji. Inasmuch as Panditji and H.H the Nawab were both affected by the offending article with regard to the same matter it follows that the evidence objected to formed part of the res gestae or the main fact and was relevant particularly to prove not only the animus on the part of the applicant in not withdrawing the defamatory allegations against His Highness but also to rebut the plea of justification set up by him.

62. The last point pressed by Mr. Kedar was that other articles appearing in the Riyasat, viz., Ex. P-2 to P-16 were wrongly used by the two Courts below to prove the intention of the applicant in connexion with the offending article when they were not formally proved to have been written by the applicant and 38 Cal 253 (1911) 88 Cal 253 , 8 IC 531 , 11 Cr LJ 667 was cited in support of this contention. The learned Counsel did not dispute the proposition that these documents were relevant if it was established that they were in fact written by the applicant. It was conceded by the learned Counsel for the complainant that there is no finding by either of the two lower Courts that these articles were written by the applicant. That being the position it is obvious that the Courts below were wrong in relying upon Exs. P-2 to P-15 to prove the guilty intention of the applicant in respect of the offending article on the assumption that they were proved to have been written by the applicant. It is astonishing that although the complainant is the chief of the Bhopal State Police and had the best experienced lawyers, both local and from outside these provinces, for advice and guidance, the trial of the case was conducted with such laxity as to result in its being declared invalid on more grounds than one. As has already been noticed many of the important documents filed in the case were not proved and documents which would certainly have thrown a good deal of light upon the most vital question in issue, were withheld by the complainant. He indeed started well by declaring that he was authorised to file the complaint “with respect to one offence only” and that

“his complaint was with respect to publication of the offending article within the jurisdiction of the Court.”

63. But he lapsed later into unnecessarily enlarging the scope of the trial by in Page: 108eluding in it several offences, for some of which he had apparently no authority to complain, and some of which could not be consolidated at one trial Under Section 234 of the Cr PC. It was evidently for this reason that what would otherwise have been a simple case was turned into a complicated and cumbrous trial resulting in the introduction and the consequent waste both of time and money—of a large body of evidence which was irrelevant to the original complaint of the offence of “publication” of the offending articles. I however attach more blame for this debacle to the trying Magistrate whose was the primary duty to see that the trial was conducted on proper lines.

64. The applicant is not altogether free from blame because, in my opinion, he contributed, in no small measure, to the confusion by his failure to raise proper objections in time. He put forward only such pleas as were apparently untenable and thus suffered the trial to run on wrong lines. But under the law he is not estopped from challenging the validity of the trial. The combined result of these acts of commission and omission has indeed been deplorable but is unvoidable. It is to be noted that as the authority to prosecute the applicant was not limited to any particular place of publication of the offending article the complainant could well have laid the complaint at Delhi which was specified by the applicant as the place of original publication of the paper in his declaration (Ex. P-20). I cannot help remarking that in selecting the venue of the trial at Hoshangabad the complainant unnecessarily took upon himself a grave responsibility and a very heavy burden of proving, by unimpeachable evidence, the publication (circulation) of the offending article by the applicant within the Hoshangabad District.

65. My final conclusion then is that the trial in the present case has been invalid in law for the several reasons set forth above. The next point which arises for consideration is the course to be adopted. For the complainant it was pressed that if the case fell under Section 235 of the Cr PC, I should adopt the same procedure as was followed in 1922 Cal. 573 1922 Cal 573 , 71 IC 120 , 24 Cri LJ 72 , 50 Cal 9 of maintaining the conviction in respect of such charges as to which the trial was not defective and quash the convictions on other charges. But in view of my finding that the present case does not come within the purview of S. 235 ibid the suggestion of the learned Counsel for the complainant cannot obviously be given effect to. On the other hand, on the basis of 25 Mad. 61 (1902) 25 Mad 61 , 28 IA 257 , 8 Sar 160 (PC), it was urged by Mr. Kedar that I should simply set aside the conviction if held that the mode of the trial was illegal. But simply because their Lordships of the Privy Council, in the case cited, did not refer to the question of retrial it does not follow that they intended to hold that no retrial should follow when the first trial breaks down on account of any illegality in conducting it. In such a case the normal course is a retrial: 29 Mad. 569 (1906) 29 Mad. 569 , 5 Cr LJ 94, 1922 Cal. 401 1922 Cal 401 , 71 IC 214 , 24 Cr LJ 86 , 49 Cal 555 and 1934 Oudh 321 1934 Oudh 325 , 1934 Cr. C 878 , 149 IC 959 , 35 Cr LJ 1048.

66. I am aware that in 4 N.L.R 71 (1908) 4 NLR 71 , 8 Cr LJ 11 Stanyon, A.J.C, after holding that the trial was invalid on account of the misjoinder of several offenders in a case not covered by Section 239 of the Cr PC, did not order a retrial but left it open to the Crown to repeat the prosecution. He however accepted the principle laid down in 12 C.W.N 246 (1907) 12 CWN 246 , 7 Cr LJ 103, that Section 403 of the Cr PC, would not be an obstacle to the fresh prosecution. It would therefore be apparent that the same result follows upon the adoption of the normal course or the one adopted in 4 N.L.R 71 (1908) 4 NLR 71 , 8 Cr LJ 11, viz., that the applicant must face a fresh trial. The Counsel for the complainant assured me that if a retrial was to be the result the complainant was prepared to conduct it on proper lines. For the reasons set forth above I accept the application for revision, set aside the conviction of the applicant and order his retrial which should be conducted before such Magistrate of the First Class at Hoshangabad, other than Mr. Syed Ahmad Husain, as the District Magistrate of that place may Page: 109select. The fresh trial shall, however, be restricted to any three of the six offences of publication which were the subject matter of the present trial. I have advisedly refrained from expressing an opinion on the merits of the offending article and would enjoin upon the Magistrate who holds the new trial not to be in any way influenced by the opinions expressed by the trying Magistrate or the Sessions Judge on the same point in the present trial. During the course of the new trial the applicant shall remain on the same bail as before. On fresh bonds being executed the bail bonds given by him and his sureties in this Court shall stand cancelled.

67. I cannot conclude this order without placing on record my high appreciation of the very lucid manner in which the learned Counsel for the applicant and the complainant and the learned Government Advocate placed before me their respective points of view on the several intricate questions of law which arose for decision in the present case. I also acknowledge the courtesy of Sir Tej Bahadur Sapru in placing at my disposal a set of typewritten paper books which saved me from the labour of going through the bulky and badly scribed record of the case.

G.R/R.K

68. Retrial ordered.