EMPEROR Vs. TRIBHOVANDAS PURSHOTTAM DAS MANGROLE WALLA

JUDGEMENT

(1.) This is an appeal from the judgment of the Chief Presidency Magistrate of Bombay, convicting the appellant of two offences, one under Section 124A and the other under Section 153A of the Indian Penal Code, arising out of each of two articles, published in a Gujarati newspaper called the Hind Swarajya. Several points of law have been urged by the appellant's Counsel, Mr. Baptista. The first of them is that the learned Chief Presidency Magistrate had no jurisdiction to try the case. This objection to jurisdiction is based upon the ground that there is upon the record no evidence of the publication of the newspaper in Bombay. But three witnesses examined for the Crown state that they received the newspaper in Bombay; and there is the declaration made by the appellant himself under the Press Act. The mere fact that two of the witnesses are servants of Government, who received the newspaper as its agents, cannot in law render their evidence inadmissible on the question of publication.

(2.) The second and the third point urged by Mr. Baptista have hardly any substance. It is contended that the trial is rendered illegal because the learned Magistrate did not frame a separate charge for every distinct offence, as required by the first part of Section 233 of the Criminal P. C.. It is true that the Magistrate framed two charges--one in respect of the article of the 4 April and the other in respect of the article of the 11 of April, 1908. But in each charge the offences are mentioned as being those punishable under Secs.124A and 153A, so that the appellant had distinct notice of the charges he had to answer, and he could hardly have been prejudiced by the some what informal mode in which the charges were drawn up. The defect, if any, was no more than a mere irregularity, cured by the provisions of Section 225 of the Criminal P. C.. It is further contended that the trial is illegal because the particulars in respect of each of the charges were not given by the Magistrate by the specification in the charge sheet of the passages in each of the articles, which, according to the case for the Crown, brought those articles within Secs.124A. and 153A of the Penal Code. But the case for the Crown was in the Court below, as it is hero, that each of the two articles taken as a whole brought, the act of the appellant within each of these sections. Under those circumstances no specification of any particular passages was called for.

(3.) I pass on now to Mr. Baptista's arguments that the trial is illegal on the ground of misjoinder of charges. The misjoinder complained of is that the offence charged under Section 124A of the Indian Penal Code, arising out of the article of the 4 of April, being distinct from, and not an offence of the same kind as, the offence charged under Section 153A of the same Code, arising out of the article of the 11 of April, and that the offence charged under Section 153A as arising out of the former article being distinct from and not an offence of the same kind as the offence charged under Section 124A as arising out of the latter article, the learned Magistrate ought not to have tried these charges together at one trial. It is admitted by Mr. Baptista that the charge for the offence under Section 124A. of the Indian Penal Code in respect of one of the two articles in question, could be legally joined to the charge for the offence under the same section in respect of the other article. And in such a case it is equally clear from Secs.236 and 237 of the Criminal P. C. that, if in respect of each of the articles the evidence recorded substantiated the offence under Section 153A, instead of the offence under Section 124A, the accused could be legally convicted of the former offence, even though it did not form the subject-matter of the charge. That being the case, the addition of the offences under that section in the charge sheet cannot be held to be illegal. On the other hand, it was an advantage to the appellant in that he had notice of the additional offence charged, of which he could have been under the Code convicted without any notice in the charge sheet. It is true that, as urged by Mr. Baptista, the offence under Section 124A of the Indian Penal Code is not an offence of the same kind as an offence under Section 153A of the Code. And the Criminal Procedure Code no doubt provides that those two offences cannot be tried together. But there is nothing in the Code which directs that where an accused person is alleged to have done two or more acts, each of which may fall within the definition of an offence under one or another section of the Indian Penal Code, the section or sections in either case being the same, the joinder of the charges under those sections is illegal. Substantially the acts amount in such a case to offences punishable under the same sections of the Indian Penal Code and, therefore, they are offences of the same kind.