SARAT CHANDRA MITRA Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal under Section 5 of the Newspapers (Incitement to Offences) Act of 1908, against an order absolute for forfeiture made under Section 3, Sub-section (5) of that Act. The appeal was heard in the first instance by my learned brothers Harington and Teunon, who have differed in opinion. My learned brother Harington is of opinion that the order for forfeiture must be set aside, while my learned brother Teunon is of opinion that the order for forfeiture should be maintained. The case has, therefore, been laid before me under Section 429 of the Criminal Procedure Code read with Section 9 of Act VII of 1908.

(2.) The circumstances under which the order absolute for forfeiture was made by the Court below are set out in the opinions recorded by my learned brothers, and need not be recalculated at full length. It is sufficient to state that the order has been made on the ground that the Pallichitra is a "newspaper" within the meaning of the Newspapers (Incitement to Offences) Act of 1908, and that in the issue of it for Assar 1316 was published a poem "Esho ma palli rani" which contains an incitement to murder or to an offence under the Explosive Substances Act, 1908, or an act of violence. The legality of the order of forfeiture has been questioned before me upon three grounds, namely, first, that the Pallichitra is now a "newspaper" within the meaning of the Newspapers (Incitements to Offences) Act, 1908; secondly, that the poem has not been duly proved; and, thirdly, that it does not contain any incitement to the crimes mentioned in Section 3 Sub-section (1) of Act VII of 1908.

(3.) In so far as the first of these points is concerned, my learned brothers Harington and Teunon have held in concurrence with the Original Court that the Pallichitra is a "newspaper" within the meaning of the Act. After anxious consideration of the matter, I am constrained to adopt the view that the Pallichitra is not a "newspaper" within the cleaning of the Act. Before I deal with the question, however, it is desirable to point out that the matter is 4 pen to discussions upon this reference under Section 429 of the Criminal Procedure Code. That section provides that when the Judges composing the Court of Appeal are equally divided in opinion, the case with their opinion thereon shall be laid before another Judge of the same Court, and such Judge after such hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. Two points are worthy of note in connection with this section: first, that what is laid before another Judge is the "case," and, secondl, that the judgment or order follows the opinion delivered by such Judge. I am not now concerned with the question of the trial of two prisoners with regard to one of whom the Judges composing the Court of Appeal may be agreed in their opinion, while as regards the other the Judges may be equally divided in opinion. In such a contingency it is quite possible to maintain the view that, upon a reasonable interpretation of the term "case," what has to be laid before another Judge is the case of the prisoner as to whom the Judges are equally divided in opinion. I am now concerned only with the contingency in which the Judges of the Court of Appeal are equally divided in opinion upon the question of the guilt of one accused person, though upon certain aspects of the case they may be agreed in their view. In such a contingency, what is laid before another Judge, is, not the point or points upon which the Judges are equally divided in opinion, but the "case." This obviously means that, so far as the particular accused is concerned, the whole case is laid before the third Judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case. The judgment or order follows such opinion which need not necessarily be the opinion of the majority of the three Judges; for instance, at the original hearing of the appeal, one Judge may consider the prisoner not guilty, another Judge may consider him guilty under one section of the Indian Indian Penal Code, and liable to be punished in a certain way; the third Judge may find him guilty under a different section and case such sentence as he thinks fit. It is this last opinion which prevails, subject to the provisions of Section 377 of the Criminal Procedure Code in the case of confirmation of sentences of death. The question, therefore, whether the Pallichitra is or is not a "newspaper" within the meaning of the Act, is one of the matters which I am bound to take into consideration. Now the term "newspaper" is defined in Section 2, Sub-section (1), Clause (b) of Act VII of 1908, to mean "any periodical work containing public news or comments on public news." This definition, therefore, involves two elements, one of time of publication, the other of subject-matter; in other words, the term "newspaper," as defined in the Act, involves the idea of periodicity, as also the fact that what is contained in the paper is public news or comment thereon. The definition, in my opinion, ought to be read as whole, and in order to determine the true character of a publication and to enable us to answer whether it is a "newspaper" within the meaning of the Act or not, we must ascertain whether the work is periodically published and contains public news or comments thereon. It is not enough to take a single number and to pick out an isolated sentence or paragraph therein which may, by stretch of language, be interpreted to contain public news or comment thereon. In some cases, the character of a paper may be so manifest as to make it incontestable that it periodically publishes public news or comments thereon, and is consequently a "newspaper" within the meaning of the Act. The case before me is, however, of an entirely different description. The Pallichitra is obviously a monthly magazine and critical review, but it is sought to be brought within the definition of "newspaper" because, in one particular issue of it, sentences or paragraphs are to be found, which may by some stretch of language be deemed to contain news. In my opinion, when it was disputed that the Pallichitra was not a "newspaper," the prosecution ought to have established its alleged character by proof of the contents of more than one issue of the paper. In other words, to bring a case under Sub- section (1) of Section 3 of Act VII of 1908, the character of the offending paper, as a "newspaper," has to be first established, and this obviously may not always be possible by production and proof of the contents of one issue only. It is conceivable that the matter complained of may be contained in an issue of what is unquestionably a "newspaper" (that is, which periodically publishes news or comments on news), though that particular issue may not contain any item of news: the converse case is equally possible in which objectionable matter is contained in what is obviously not a "newspaper" and the mere fact that in that particular issue an isolated sentence or paragraph may be found which may be interpreted to contain public news or comments thereon does not make the publication a "newspaper." I feel no doubt whatever upon the materials on the record that it is a misuse of language to say that the Pallivhitra is a "newspaper" within the meaning of Act VII of 1908. One might as well take an issue of the "Nineteenth Century" or the "Contemporary Review," pick out a solitary passage or paragraph which may be interpreted to contain public news or comment thereon, and then maintain the position that the periodical is a "newspaper." The case before me manifestly discloses an attempt to extend the operation of the provisions of the Act to cases of papers to which they were never intended to be applied by the Legislature, in so far as such intention may be gathered from the language used in the statute. The first ground urged on behalf of the appellant must consequently prevail.