Apurba Krishna Bose v. Emperor

Caspersz, J.:— This was a rule calling on the Chief Presidency Magistrate, Calcutta, to show cause why the conviction and sentence passed on the petitioner should not be set aside. The learned Judges who granted the rule did not restrict its operation in any way; we are, therefore, in a position to deal with all the grounds upon which the petitioner based his application; and, in view both of the importance and the connection, one with another, of the questions raised for our consideration, the course adopted has been the most convenient one

2. The petitioner, Apurba Krishna Bose was the printer of a daily newspaper called Bande Mataram published in Calcutta, and he was recorded as such under the provisions of the Printing Presses and Newspapers Act XXV of 1867. He was arrested on a warrant issued by the Chief Presidency Magistrate on the “allegation” that he had committed the offence of sedition punishable by section 124-A, Indian Penal Code. The following paragraphs of the application recite the facts which are not in controversy:— That your petitioner was put upon his trial before the Chief Presidency Magistrate of Calcutta, along with the alleged Editor and the Manager of the Paper, for having published in the Town edition of the 27th June 1907, and its corresponding Dak edition, of the Bande Mataram a letter headea “Politics for Indians” and a copy of the official Translator's translation of the articles for which the Editor of Tugantar a weekly paper had been found guilty of sedition and convicted under section 124-A.”

“That at the trial three notes purporting to be signed by the Chief Secretary to the Government of Bengal were put in, so far as regards your petitioner, as the sanction for his prosecution. True copies of these are herewith attached and marked A, B and C.”

“That evidence was gone into and eventually, on the 23rd September 1907, the learned Chief Presidency Magistrate delivered his judgment acquitting the alleged Editor and the Manager but convicting your petitioner under section 124-A, Indian Penal Code, and sen-tercing him to-undergo rigorous imprisonment for three months.”

3. The further particulars, so far as they need be mentioned, and as we gather them from the record, are these: The earlier sanction of the Government of Bengal, bearing date the 6th August 1907, were filed in the Court of the Chief Presidency Magistrate on the 17th idem by Superintendent Ellis of the Detective Department, who applied for a warrant of arrest, against the Printer by name Apurba Krishna Bose of the Bande Mataram, on a two-fold charge of sedition namely for printing an article headed India for the Indians, and for reprinting certain seditious articles which originally appeared in another newspaper called the Jugantar, and in respect of one of which articles the Editor of the Jugantar had been already convicted. In pursuance of the warrant issued, the petitioner was arrested on the 21st August, and the trial began on the 26th. The accused were charged on the 4th September, and the petitioner was convicted on the 23rd Meanwhile, on the 26th August, the description of the article ‘India for the Indians’ had been corrected to ‘Politics for Indians’ by means of a third sanction of the Government of Bengal that date. All the sanctions were forwarded through the filed on Calcutta, for whose “information and Commissioner of Ponce guidance to the Government of Bengal, the Officer who had signed sanctions. The wording of these three sanctions is-The SANCTIONS of Government is hereby accorded to the prosecution, under section 124-A of the Indian Penal Code, of the Printer………….of the BANDE Mataram, newspaper,” (and so forth). No name was inserted in any of the sanctions, but this omission was supplied by Supenntendent Ellis in his application for warrants dated the 17th August ln his deposition given on the 26th August Superintendent Ellis said-……………. “This shown to me is the body warrant for arrest of accused Apurba. On 18th August I endorsed it for execution to Inspector Lahiri. Application for both those warrants was made after receipt of sanetion and on or about the 17th August.” The Superintendent had previously said that he had received the sancions signed by the Chief Secretary to the Government of Bengal. He also, stated in cross-examination-“I am in charge of this case, I am under the direc tions of the Commissioner of Police I received verbal instructions from the Commissioner of Police, but no written instructions. I obtained a body warrant. The application for warrant contained no obtained a body warrant. The application fot warrant contained no satements nor did I make any verbal statement on oath Iproceeded against Apurba on the basis of the declaration made by him I knew of that declaration when I applied for warrant. I believe, however, that there was some additional evidence known to the Police.” On these facts the learned Counsel for the petitioner has advanced ten contentions with which we shall deal seriatim.

4. It is first urged that the trial of the petitioner was wholly bad as there was no proper sanction for his prosecution as required by section 196, Code Criminal Procedure.

5. Section 196 of the Code enacts that “no Court shall take cognizance of any offence punishable under Chapter VI of the Indian Penal Code (except section 127) or punishable under section 108-A, or section 153 A, or section 294-A, or section 505 of the same Code, unless upon complaint made by order of, or under authority from, the Governor-General in Council, the Local Government, or some officer empowered by the Governor-General in Council in this behalf.” The section does not use the word sanction. It contemplates a complaint made by order of, or under authority from, the Local Government. The Code differentiates between sanctions and complaints as, for example, in section 195. The so called sanctions signed by Mr. Gait were not expressed in exact language; but we do not think that the prosecution of the petitioner was bad for want of proper sanction. He was duly proceeded against if the provieions of section 195 were substantially complied with.

6. The section was construed by the Bombay High Court in Queen-Empress v. Bal Gangadhar Tilak (1). In that case the sanction (to use the convenient word) was expressed in general terms, and did not even specify the seditious articles. Nevertheless, the Court held that “the effect of no such specification being made is to give him (complainant) the widest latitude in selecting the matter to be complained of.” We entirely agree with Strachey, J., that orders under section 196 should be expressed with sufficient particularity and, we may add, with stricter adherence to the language of the section. But, the real question in such a case is whether the prosecution was instituted under the authority of Government. To quote the judgment of the Full Bench “There is no special mode laid down in the Code whereby the order or sanction of Government is to be conveyed to the officer who puts the law in motion. In this case the prosecution was conducted by the Government Solicitor. It was instituted by the Oriental Translator to Government, and he produced the written order of Government to institute the complaint.” The prosecution of the petitioner was, mutatis mutandis, even more regular than the prosecution of Tilak.

7. But the learned Counsel has called our attention to a decision of Pratt and Handley, JJ., in the case of Kali Kinkar Sett… v. Nritya Gopal Roy…Opposite Party. (2), where a Division Bench of this Court ruled that a Presidency Magistrate is not exempted by section 200, clause (6), Code of Criminal Procedure, from the necessity of placing on record the necessary evidence of the actual complainant's authority as delegated by the person to whom sanction was actually granted to prosecute certain persons under section 193, Indian Penal Code. We think that case is clearly distinguishable from the present, because in the absence of proof of delegation the actual complainant had no locus standi; and hie complaint might have been negatived by real complainant coming forward and exercising his own discretion not to proceed in the matter. No such considerations can effect the present case. We may notice, in this connection, the English case of Reg. v. Judd (3). The learned Counsel has urged, on the authority of the observations of Lord Coleridge, C.J, that the petitioner's name should have been mentioned and specified by Government, and that the fiat, or order, or sanction, initiating his prosecution being defective, in that it merely described him as the printer of the Bande Mataram, the conviction of the petitioner should be quashed. We think it sufficient to say that Reg. v. Judd () proceeded on a construction of the English Newspaper Libel Act, and that the law we administer in this country is contained in the Code of Criminal Procedure. We have to construe section 196 of that Code the terms of which are very different from the English Statute. The petitioner here was indicated from the first; his name was supplied when it was required i, e., at the commencement of the Police Court proceedings.

8. The next contention is that the sanctions or notes by Mr. Gait were not really complaints within the meaning of section 4(h) of the Code. With this we entirely agree, the sanctions were the order, or authority, by which the prosecution was started. The complaint if any, was made by Superintendent Ellis. The definition of complaint is—“the allegation made orally or in writing to a Magistrate with a view to his taking action,” Now, the petitioner himself has admitted in the second paragraph of hie application that he was arrested “on the allegation that he had committed an offence under section 124 A, Indian Penal Code.” The facts which we have recited in the earlier part of this judgment can bear no other construction than that Superintendent Ellis made oral allegations against the petitioner. It was not necessary that those allegations should be on oath, or that they should be reduced to writing. We desire to affirm the rule laid down in Queen-Empress v. Sham Lal (4), where an application by a complainant, to have his witnesses summoned and the case tried, was regarded as a complaint. The same rule has been followed in later decisions of this Court. We, therefore, think that the application of Superintendent Ellis, coupled whith his oral allegations, though the latter were not on oath, nor reduced to writing, amounted to a complaint within the meaning of section 196.

9. It was argued that because there is no record of Superintendent Ellis' examination, he must be taken to have not been examined. It is, however, clear, from the proceedings and Superintendent Ellis' subsequent examination in Court, that he was examined by the Magistrate at the time that he applied for the warrants, though that examination was not upon oath.

10. In this connection, we should notice a subsidiary argument of the learned Counsel. He urges that the sanction of Government was a sanction given in the abstract which to use the words of Pigot and Hill, JJ., in Baperam Surma v. Gouri Nath Dutt (5) “may float about the world like a bit of thistle down until it comes in contact with some possible prosecutor.” But, can it be said that Mr. Gait dispersed these sanctions in empty air and that Superintendent Ellis intercepted them and used them for prosecuting the printer of the Bande Mataram? Can it be said that the Commissioner of Police and the standing Counsel to the Government of India abetted an unwarrantable and illegal action on the part of Superintendent Ellis? We think not. It must be presumed that all official acts have been regularly performed; and the presumption of section 114 of the Indian Evidence Act amply supplies any omission either as to the method of communication of the sanction to Superintendent Ellis, or in the order-sheet of the Chief Presidency Magistrate. Moreover, the facts stated by the petitioner in his own application clearly indicate that he was put upon his trial in consequence of the sanctions granted by Government.

11. There is another subsidiary contention on this part of the case, and that is that the Lieutenant-Governor should have personally signed the sanction under s. 196. The contention appears to us puerile. Although the expression of Local Government means the Lieutenant-Governor, the head of the executive Government must necessarily, and ordinarily does, act and communicate his orders through his accredited and gazetted officers.

12. It is contended, thirdly, that even if Mr. Gait's notes or sanctions be held to be complaints, the Magistrate should have examined the complainant (Mr. Gait or Superintendent Ellis) as required by law before issuing process against the petitioner. The argument must fail by reason of the observations we have already made; we do not regard these sanctions as complaints, they merely authorized Superintendent Ellis to make the complaint which we have found that he did make.

13. The fourth contention is:— that Exhibits 3 and 4 were wrongly considered to be supplementary complaints, and that the petitioner could not be properly tried on them after they had been placed before the Court, This contention refers to the correction of the name of the article headed ‘Politics for Indians.’ The first citation of the article, viz, ‘India for the Indians’ was merely a misdescription. There was no such article in the Bande Mataram of the date indicated, but there was an article, or letter, headed ‘Politics for Indians,’ and the trial commenced, proceeded, and ended, in respect of that article. The petitioner was in no way prejudiced, as he knew what case he had to meet. The defect, if any, is cured by the provisions of section 537, Code of Criminal Procedure.

14. The next ground taken is that the Magistrate acted illegally in proceeding with the trial of the petitioner when he found that there was no authority for proceeding with the trial. As to this, we do not desire to add anything to what we have already said, because, in our opinion, there was no real irregulrity depriving the Chief Presidency Magistrate of his jurisdiction over the petitioner.

15. We pass now to a consideration of the sixth plea: That the article ‘Ploitics for Indians’ is not in any way seditious. We have read that article with attention and, we may say, with indulgence and we find it impossible to regard it otherwise than as seditious. The definition of sedition given in section 124A; Indian Penal Code, contemplates hatred or contempt or disaffection to wards His Majesty or the Government established by law in British India, and this apart from any intention of the offender. The article is in the form of an unsigned letter, but it does not appear in the correspondence columns. There is no heading that the Editor does not accept responsibility for the opinion expressed in the letter. The comments in the letter are incompatible with the continuance of the Government established by law. Reading the article, as we have read it, for the first time, we think the comments on the slave trade, the evil genii, and the alternatives of British goods or the sword, and the reference to His Majesty the King Emperor, and the tone generally, of the production, are not within the explanation to section 124-A. Such writings are calculated to bring Government into hatred and contempt. It may be said that these are words of emotional exaggeration. It may be said that ‘Politics for Indians’ was based on imperfect telegraphic intelligence. But the duty of every citizen is to support the Government established by law, and to express with moderation any disapprobation he may feel of the acts and measures of that Government. If the article were near the line demarcating legitimate comment from seditious utterance, we might feel disposed to give the petitioner the benefit of the doubt, but, in our opinion, no such reasonable doubt exists.

16. The seventh contention refers to the reprinting of the official translations of the—-——Jugantar articles, and it is urged that the republication was one made bona fide of the proceedings of a Court of Justice, The protection afforded by the fourth exception to section 499, Indian Penal Code, is invoked. That exception provides that it is not defamation to publish a substantially true report of the proceedings of a Court of Justice. But did the Jugantar articles form part of the proceedings of a Court of Justice? They did not. The conviction for sedition in the Jugantar case was based on one article only. The prosecution intended to rely in support of their case upon other articles published in that paper. These other articles were translated and communicated to the accused for his sole benefit. They were, however, never used and never were brought upon, or form part of, the record in the Jugantar case. There was, therefore, no excuse for the wholesale publication in the Bande Mataram of these translations, and the head-note is inaccurate and misleading. The publication cannot therefore be justified on the ground put forward by the petitioner. It was not, indeed it could not be, contended that these articles were not seditious. In a question of this kind we have to take into consideration the state of the country and the object with which the republication was made. It is admitted that the country was, at the time in a state of unrest. That being so, it was mischievous to add fuel to the flame of disquiet. There is no reason to believe, and we have not been told, that the Jugantar articles were communicated to the readers of Bande Mataram for any useful or proper purpose. The communication of seditious articles to another, and possibly larger, and certainly more educated class of readers, tended to increase and continue the mischief which had been checked by the criminal prosecution of the Jugantar. The dissemination of temptation is not excusable on any principle with which we are conversant.

17. The eighth contention is that the petitioner is imperfectly acquainted with the English language, and that he merely acted under orders. We shall consider this matter when we come to the question of sentence.

18. Ninthly, it is argued that the petitioner merely subscribed to the declaration required by the Printing Presses and Newspapers Act, XXV of 1867, and that, in the absence of evidence to show that he was cognizant of what he was printing and publishing, he cannot be liable for the publication of the Bande Mataram. This contention cannot prevail in view of the legal presumption embodied in section 7 of the Act, and in the absence of any evidence to the contrary. The learned Counsel has called our attention to the diversity of the provision contained in Act XXV of 1867, and we are disposed to agree with him that 40 years ago it was never anticipated that a mere printer would be punished, with the aid of the Act, for the publication of seditious matter. It is unfortunate that the person or persons really responsible for these seditious utterances remain undetected. But our duty is to apply the law. It may be observed that if, in consequence of the part of printer being found to be a dangerous or invidious one, the real authors of sedition are unable to get their writings printed, the present law will indirectly succeed in checking sedition, though it is evident that if the law cannot also reach the more guilty persons, it should be, and we have little doubt that it will be, amended. Lastly, on the question of sentence we pointed out to Mr. Chowdhury that section 124-A provides the punishment of transportation for life or imprisonment for three years with fine. We agree with him that the petitioner should not be severely punished, but we cannot regard a sentence of three months imprisonment as other than lenient. To reduce it any further would destroy the responsibility and the salutory dread of punishment which should be inculcated. The Rule is discharged.

19. Rule, discharged.