MANOMOHAN GHOSE Vs. EMPEROR

JUDGEMENT

(1.) I have had the advantage of reading the judgment which my learned brother is about to deliver, and I find myself in agreement with him that the present appellant, the printer and publisher of the Karmayogin, cannot be convicted under Section 124A of the Indian Penal Code on the article which we have before us in this case.

(2.) It is unfortunate that of a series of articles alleged to have been written by one and the same hand the prosecution should have selected the one which on the face of it appears the least amenable to a charge of sedition, and it is doubly unfortunate that the case should have been so inadequately tried in the Lower Court. It is true that under the law, the printer and publisher of a seditious article can be punished merely on proof that the article is calculated to excite feelings of hatred, dislike, ill-will, enmity or hostility towards the Government established by law in British India, but that renders it all the more incumbent on the prosecution to show either that the article does as a fact bring the Government into haired or contempt, or that the intention of the writer was to excite disaffection. Edge C.J. in delivering the judgment of the Full Bench in Queen-Empress V/s. Amba Prasad (1897) I.L.R. 20 All. 55, points out that the writer may be guilty of exciting or attempting to excite feelings of "disaffection," as that term is used in 124A, no matter how guardedly he may attempt to conceal his real object, but it is idle to contend that the printer and publisher can be punished if the concealed object is not established by evidence on the record. Now, in this case, although the prosecution alleged that a series of articles had been written by one individual and had those articles produced by a Police Officer who said that it was Ids duty to read them and if objectionable to forward them to his superiors, no evidence, was offered who that individual was nor whether all the articles were by the same author.

(3.) It was urged by the learned Advocate-General that these articles were admissible under Section 15 of the Evidence Act for the purpose of showing that the publication of the article before us in this case was not accidental, but that has obviously nothing to do with their admissibility for the purpose of showing the intention of the writer. In order to use them for this purpose it was necessary to show who the writer was and that all the articles produced were by the same hand. This not having been done We are compelled to take the article before us as it stands without any of the informing commentaries which were sought to be drawn from one previous article in particular by the learned Advocate-General.