EMPEROR Vs. BHASKAR BALVANT BHOPATKAR

JUDGEMENT

(1.) Gentlemen of the Jury, you have heard this case very patiently and listened very carefully to the evidence placed before you, as well as to the very able utterances of counsel on both sides. No doubt, it will not be necessary for me to say much in addition to what has already been said, but I trust that I may be able to give some little assistance in placing before you the essentials of the offence with which the accused is charged, so that you may be able to apply correct principles to the facts which appear in the evidence and especially in Exhibit C, the article which is the subject of the charge.

(2.) Now the charge against the accused is that he being the proprietor and publisher of a certain vernacular newspaper entitled the Bhala, under the heading or title translated "A Durbar in Hell" on page 2 of that newspaper dated 11th October 1905 did attempt to bring into hatred or contempt, or attempted to excite disaffection towards the Government established by Law in British India : that is to say, the offence alleged is one punishable under Section 124A. It is desirable first to read the whole of that section through, with its explanations and comments, and then to make a few remarks on the words that require specially to be emphasized and explained. [His Lordship here read the section].

(3.) Now you will see that the liability arises from certain action, viz. the bringing or attempting to bring into hatred or contempt the Government of the country. This is a result which may be effected in various ways, i.e. either by speech, writing, or by signs or by visible representations. The offence consists of making use of any means for the purpose. It is quite immaterial whether such means had been previously prepared for the purpose by the person who uses them-or by some other person-if those means are used for the purpose of bringing the Government into hatred or contempt. It is, therefore, not sufficient for a person who has published matter calculated to excite hatred, contempt, or disaffection, to say : " This is not my own work," because the adoption of the means, the publishing thereof was in itself his work, and therefore it is, that the printer or publisher of an article, which is open to these objections is always to be held liable. In the Madras case which has been cited to you it was held that a declaration under Section 5 of Act XXV of 1867 (an Act requiring all printers and publishers to register their names), in the absence of proof to the contrary is proof of publication by the person making the declaration, unless he can prove that the matter was published in his absence and without his knowledge, and that he had in good faith entrusted the temporary management of his business to a competent person. That is to say for everything that appears in his paper, the editor, printer, or publisher is as responsible as if he had written the article himself. No doubt the question of his liability to punishment is a matter which has to be seriously considered and circumstances may considerably mitigate the penalty which has to be imposed. But his liability to conviction under the section is not affected by the circumstance that the publisher who used the words did not originate them. The result of his using the words in his publication is the same whether he had written the article himself, or made use of it in other ways. " Whoever the composer might be, whosoever wrote or caused it to be written, the person who used it for purposes of exciting disaffection is guilty of an offence under Section 124 A." Then, in another case, the decision of the present Chief Justice of Bombay, it was said: " The publisher is prima facie liable for whatever appears in his paper and if he seeks to get rid of that liability the onus lies on him. It is for him to prove such circumstances as would justify him in asking you not to fasten responsibility on him. What is necessary for him to establish is that the article was published without his knowledge or authority or consent or without any acquiescence or intention on his part. Mere absence is obviously insufficient to state in answer to the charge. There must be more than that. That is to say, it is not sufficient for an accused person to say that what was put into his paper of a seditious character was put in during his absence and without his authority. If he did not authorise it, it is for him to prove that as a fact, because it must be within his knowledge whether any such authority was. given. It is not enough for him to say I never authorised publication of this particular article. "