RABINDRA NATH CHANDRA Vs. EMPEROR

JUDGEMENT

(1.) We granted this Rule on the question of sentence alone. The petitioner, one Rabindra Nath Chandra, was convicted under Section 35, Bengal Suppression of Terrorist Outrages Act, 1932, by a Magistrate at Midnapore and sentenced to one year's rigorous imprisonment. Section 35 deals with the possession of literature connected with the terrorist movement. It provides that if a person has knowingly in his possession literature which has been declared to be forfeited to His Majesty under the law, he shall be punishable with imprisonment which may amount to three years and the learned Deputy Legal Remembrancer has told us that no action is taken under this section unless the statutory condition precedent contained in Section 38 has been followed, which section deals with the preliminary to a complaint being made under the. Special Terrorist Act, where the Local Government or the District Magistrate have to consider the question of the prosecution itself by forming an opinion about the person or persons who will be affected by the prosecution or an opinion with regard to the nature of the literature concerned or its tendency to encourage the terrorist movement or the commission of some possible offence in connexion with that movement.

(2.) We do not know with exactitude what was done before this prosecution was launched, but there is no doubt that the pamphlet found in the accused's possession by the name of "Swaraj and Khilafat" is a prescribed book. In all these cases, there fore, it may safely be said that the trying Magistrate, before he comes to the judicial consideration of a case, is well aware that responsible persons have made up their minds that there is, to use our legal phrase, a prima facie presumption of guilt against the person who has been prosecuted.

(3.) The judgment of the learned Magistrate and his sentence was upheld by the Sessions Judge of Midnapore. We have had our attention called to both the judgments: We have had our attention called too to translations of certain material passages in the pamphlet "Swaraj and Khilafat". We know it is not disputed that pamphlet was published in the year 1922. With regard to the judgments themselves, in my view one cannot help being impressed, when reading them, that both the learned Judges were obsessed with the prima facie guilt of the accused under Section 35 of the Act, more especially, in my opinion, is the restraining after this effect in the language employed by the learned Magistrate when he dilates upon the activities of the accused as a prominent Congress worker , a phrase copied from a newspaper paragraph which he had cut out and framed and hung on his wall-a paragraph which in actuality, referred to a melancholy event in the accused's life, to wit, the funeral of his mother. There he is described by the journalist as a prominent Congress worker. It may be that he is proud of being so described; it may be that he was truthfully so described, or he may be, for aught I know, a member of the rank-and-file and his vanity had been affected by the promotion which the press allotted to him. But whatever it was, nothing, as far as I can see, was proved with regard to his status in the movement before the Court nor does it have any real significance as to his connexion with the terrorists. It may or may not have been, I do not know, and it is my belief that the learned Magistrate and the learned Judge did not know either.