VAMAN SAKHARAM KHARE Vs. EMPEROR

JUDGEMENT

(1.) This is an application by Vaman Sakharam Khare, a pleader of the District Court at Nasik, to set aside the order of the District Magistrate of Nasik, made under Section 118 of the Criminal P. C., directing the petitioner to execute a personal recognizance in Rs. 2,000 to be of good behaviour for one year with two substantial and respectable sureties for Rs. 1,000 each. The order has been made as a result of proceedings taken against the petitioner under Chapter VIII of the Code on information that he had been disseminating seditious matter by means of speeches. The speeches charged against the petitioner as seditious are six in number and are found by the District Magistrate to have been delivered on different occasions between the 5 of February 1907 and the 5 of September 1908. The last speech was delivered on the latter date. The information was filed before the District Magistrate by the Police under Section 108 of the Code on the 10 of December 1908. Having regard to the date of the last speech and the date of the information, it is contended by the learned pleader for the petitioner that the case was clearly not one falling within the scope and object of Section 108. It is argued that the provisions of Chapter VIII in which that section occurs are of a purely preventive character; and that the section itself is so worded as to make the intention of the legislature to have been that the person to be dealt with under the section must be one engaged in the dissemination of sedition at or about the time when the information is filed. Here, it is urged, the petitioner could not be regarded as falling within that category on the 10 of December 1908, when the information was filed, because the petitioner's last speech had been delivered on the 5 of September 1908; after that there had been correspondence between him and the District Magistrate, in the course of which he (the petitioner) had assured the Magistrate that he was not disloyal and even expressed his willingness to give an undertaking that he would for one year make no speeches on political subjects from public platforms.

(2.) The provisions of Chapter VIII of the Code are, no doubt, preventive in their scope and object; and are obviously aimed at persons who are a danger to the public by reason of the commission by them of certain offences. The test under Section 108 is whether the person proceeded against has been dissem-nating seditious matter and whether there is any fear of a repetition of the offence. In each case that is a question of fact which must be determined with reference to the antecedents of the person and other surrounding circumstances. In the present case within about eighteen months the petitioner before us had delivered six speeches; the interval between the last speech and the date of the information was not long; it was only three months and the fact that there had been no repetition of the offence after the 5 of September 1908 up to the date of the information is accounted for by the notice given by the District Collector in the meantime that the petitioner's mokasa amul would be declared forfeited on the ground of his disloyalty.

(3.) It appears from the record of the District Magistrate's proceeding that before the commencement of the trial the petitioner put in an application, protesting that he had never made any speeches for the purpose of disseminating sedition" but to remove all room for misunderstanding" expressing his readiness to give an undertaking that he would deliver no speeches on political subjects from public platforms for a period of one year, in case the present proceeding" were "dropped." The Magistrate declined to accept any such undertaking. We think he was right. Whether such an undertaking would have been legal and valid is doubtful. The case before the Magistrate was criminal and he had to conform to the provisions of the law strictly before passing an order restricting the ordinary rights of a subject of the Crown.