EMPEROR Vs. KANCHANLAL CHUNILAL

JUDGEMENT

(1.) This is an application for revision of a conviction and sentence of the accused for an offence under Section 153A of the Indian Penal Code by the Special Magistrate, First Class, Surat, confirmed in appeal by the Sessions Judge, Surat.

(2.) The first ground urged is that the lower Courts wrongly threw the burden of malicious intention upon the accused. It appears from the judgments of the two lower Courts that from a consideration of the three writings complained of they came to the conclusion that the natural meaning to be attached to those writings was that they would be calculated to produce hatred and enmity between the two classes, viz., the Hindus and the Mahomedans. Having come to that conclusion they state that if the accused relies upon the want of malicious intention which would take his act out of the purview of this section it would be for him to show that such was not his intention. Where the articles can bear a meaning only that they are calculated to produce hatred and enmity between two classes the natural inference from the publication of such articles and writings is that the person who published them had the malicious intention that they should produce such hatred and enmity. The burden of proof shifts to the accused when he asserts that the natural inference to be drawn from the publication of the articles does not hold good in his case. It was conceded before the Sessions Court in appeal and it has been conceded in argument before us that the three writings complained of are calculated to produce hatred and enmity between Hindus and Mahomedans.

(3.) The next ground urged is that the accused being the editor of a newspaper published these three writings bona fide and as a piece of news of public interest and that therefore no inference should be drawn against him that he had the malicious intention to produce hatred and enmity between Hindus and Mahomedans. Reliance has been placed upon the case of Hemendra Pvasad Ghose V/s. The King-Emperor (1926) 31 C.W.N. 168. In that case, however, it was found that there was no malicious intention on the part of the editor of the paper who published the purport of a genuine telegram which had been previously received in Calcutta from a person in Mauritius offering to finance Mahomedaa opposition against Hindus in Calcutta. The purport of the telegram was published with a view to ascertain whether it was authentic and as a warning to the authorities that a plot of that nature was being hatched in Calcutta and to prevent any disturbance of the peace between members of the two communities. In the present ease the finding of both Courts is that the accused had the malicious intention to promote hatred between the two communities. To use the language of the Sessions Judge the accused " acted as a herald for either party and shouted defiance to each in turn". The second case relied on is P.K. Chakravarti V/s. Emperor (1926) I.L.R. 54 Cal. 59. In that case it was found that the newspaper had given its readers in the ordinary way a perfectly legitimate and sensible piece of news without any intention to utilise that piece of news for the purpose of promoting or furthering class hatred. The original leaflet complained of in that case was in the vernacular but the paper had published its English translation and the object of the editor in publishing the leaflet in English obviously was to warn the authorities and prevent disorders. In the case before us it cannot be reasonably contended that the object of the accused was to warn the authorities or to prevent disorders. It has been urged that the accused sent the original of the anonymous letter signed " Gazi Mussalmans" to the District Magistrate and we must infer, therefore, that his object in publishing the letter was to warn the authorities against disturbances which were threatened. But there appeared no leader or comment in the accused's paper from which such intention could be inferred. The letter signed "Gazi Mussalmans" appeared under head lines which set out in bold print highly objectionable extracts of a provocative character to the members of the Hindu community. This letter appeared in the issue of September 25. On the morning of September 27, the accused brought out a special edition of his paper reporting a speech made by Dr. Raiji on the previous day in reply to the anonymous letter of the " Gazi Mussalmans." Again there is nothing in the morning edition of September 27 to indicate that the object of the accused was to put the authorities on their guard and to prevent disorders. The heading of the writing is "Dr. Eaiji's reply to Gazi Mussalmans " and among other things the reply aa reported is " I say to the Miyanbhais you are not the only users of a knife. With me also there is a knife". The same day in the evening edition of the paper the accused published an anonymous letter purporting to be a reply by the " Lalas " to the " Gazi Mussalmans." Here again there is nothing which would show that the intention of the accused was to prevent disorders or to live a warning to the authorities.