Emperor v. Sadashiv Narayan Bhalerao (PC) BS283043
PRIVY COUNCIL

Before:- Lords Thankerton, Porter And Simonds, Sir Madhavan Nair And Sir John Beaumont.

Privy Council Appeal No. 49 of 1946, D/d. 18.2.1947.

Emperor - Applicant

Versus

Sadashiv Narayan Bhalerao - Respondent.

For the Crown :- Sir Walter Monckton and W. Wallach, Advocates.

For the Respondent :- Ex parte.

For the Appellant :- Solicitors, Solicitor, India Office,

For the Respondent :- Ex parte.

JUDGMENT

Lord Thankerton - This is an appeal by special leave from a judgment of the High Court of Judicature at Bombay, dated 25.1.1944, which affirmed an order of Mr. S. D. Adhav, Magistrate of the 1st Class, Jalgaon City, dated 22.6.1943, acquitting the respondent who had been charged under Rule 38 (5), Defence of India Rules, for having, on 26.1.1943, made, published and distributed copies of a leaflet which contained prejudicial reports within the meaning of Rule 34 (7) read with Rule 34 (6) (e) and (g), Defence of India Rules, and having thus contravened Rule 38 (1) (c).

2. The Defence of India Rules, which were made by the Central Government under section 2, Defence of India Act, 1939-(Act 35 [XXXV] of 1939)-so far as material - provide as follows :

3. The document which formed the subject-matter of the charge was admittedly made and published by the respondent at Jalgaon City on 26.1.1943, and he admittedly distributed printed copies thereof. It consisted of a leaflet addressed "To all the patriots," and it will be sufficient to quote some of the statements in the leaflet:

4. After a trial, the learned Magistrate acquitted the respondent. He pointed out that it was nowhere suggested in the leaflet that the work of nation of defence should be snatched away from Government forcibly, that the national leaders should be freed by using force or that national Government should be formed by resorting to unconstitutional methods, but that on the contrary, the public was exhorted to achieve national unity for all the above purposes, not to resort to sabotage, and to take part in the campaign of achieving worldwide freedom. In the absence of any incitement to public disorder, he held himself bound to acquit, in view of the decision of the Federal Court in 1942 FCR 38 : AIR 1942 FC 22,1 to which their Lordships will refer later.

5. On appeal by the Crown, the decision of the Magistrate was affirmed by the High Court and the appeal was dismissed; the learned Judges held themselves bound by the decision of the Federal Court in AIR 1942 FC 22.1 The charge of having committed a prejudicial act within the meaning of Rule 34 (6) (g) was not pressed and may be disregarded. The learned Judges, at the request of the Crown, certified for the purpose of Section 205 Government of India Act, 1935, that the case does not involve a substantial question of law as to the interpretation of the Government of India Act or any Order in Council made thereunder. Thereafter the Crown obtained special leave to appeal against the decision of the High Court on an undertaking "that no further proceedings in connection with the said charges would be taken against the respondent in any event so long as that undertaking does not prejudice the reality of the appeal." The respondent has not appeared in the appeal, which has been heard ex parte.

6. The purpose of this appeal is to challenge the soundness of the decision in AIR 1942 FC 221 which their Lordships will therefore consider in some detail. In consequence of a speech made at Calcutta. Niharendu was convicted by the Additional Chief Presidency Magistrate of offences under Rule 34 (6), sub paras. (e) and (k), Defence of India Rules. The conviction was upheld by the High Court, from which Niharendu appealed to the Federal Court, which allowed the appeal and acquitted the appellant on the ground that the speech of the appellant did not constitute a prejudicial act within the meaning of Rule 34 (6) (e). The Federal Court did not deal with sub-para. (k) of Rule 34 (6). The judgment of the Court was delivered by Sir Maurice Gwyer C. J., who said, in reference to sub-para. (e), that the prejudicial act was :-

The learned Chief Justice then proceeds to consider the meaning of sedition in English Law, as defined and explained by decision of the Courts, and states the principle to be derived therefrom as follows :

The learned Chief Justice then applied that test to the appellant's speech, and found that it contained no incitement, or intention or tendency to incite, to public disorder, and the conviction was set aside. Their Lordships are unable to accept the test laid down by the learned Chief Justice, as applicable in India.

7. Their Lordships agree, for the purposes of the present appeal, that there is no material distinction between Rule 34 (6), sub-para. (e) and section 124A, Penal Code, though it might be suggested that the words "an act which is intended or likely to bring" in the rule are wider than the words "brings or attempts to bring" in the Code. They further agree with the learned Chief Justice that the omission in the rule of the three explanations in the Code should not lead to any difference in construction.

8. The word "sedition" does not occur either in section 124A or in the Rule; it is only found as a marginal note to section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restricting the contents of the section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when you have a statutory definition of that which is termed sedition, as we have in the present case.

9. Their Lordships are unable to find anything in the language of either section 124A or the Rule which could suggest that "the acts or words complained of must either incite to dis-order or must be such as to satisfy reasonable men that that is their intention or tendency." Explanation 1 to section 124A provides, "The expression 'disaffection' includes disloyalty and all feelings of enmity." This is quite inconsistent with any suggestion that "excites or attempts to excite disaffection" involves not only excitation of feelings of disaffection, but also exciting disorder. Their Lordships are therefore of opinion that the decision of the Federal Court in AIR 1942 FC 221 proceeded on a wrong construction of section 124A, Penal Code, and of sub-para. (e) of Rule 34 (6), Defence of India Rules.

10. In that view, their Lordships are of opinion that there should have been a conviction in the present case, for they have no difficulty in agreeing with the learned Judges of the High Court in this case, who have both stated that, if disorder were not an essential element, there are undoubtedly passages in the leaflet which hold the Government up to hatred or contempt, and which would have led them to convict.

11. In the High Court three decisions of this Board were referred to, but the learned Judges preferred the decision of the Federal Court in AIR 1942 FC 221 as the same sub-paragraph of Rule 34 (6) was the subject of decision and it was the latest case; it is unnecessary to consider whether the learned Judges had sufficient ground for distinguishing these decisions such as would avoid the binding nature of decisions of this Board. In the opinion of their Lordships, the principle of decision in these three cases is inconsistent with the decision of the Federal Court in AIR 1942 FC 221 and it is regrettable that the Federal Court did not pay attention to these cases, two of which are Indian.

12. In 22 Bom 112 and 22 Bom 528, the charge was under section 124A as it then stood, confined to disaffection, without any reference to hatred or contempt. Strachey J., in an admirable charge to the jury, which was subsequently approved by this Board, said (at p. 135):

In refusing leave to appeal, inter alia, on the ground of misdirection as to the proper construction of section 124A, the Board expressly approved of the charge. It is sufficient for their Lordships to adopt the language of Strachey J., as exactly expressing their view in the present case.

13. In 43 Mad 146, it was pointed out by the Board that Section 4, Press Act of 1910, which was under consideration in that case, was closely similar in language to Section 124A, Penal Code, which had been the subject of careful consideration in Tilak's case-3 above referred to.

14. In 1940 AC 231, under sub-section (8) of Section 326 of the Criminal Code of the Gold Coast, "seditious intention" was defined as an intention "to bring into hatred or contempt or to excite disaffection against... the Government of the Gold Coast as by law established." It was held by this Board that the words were clear and unambiguous, and that incitement to violence was not a necessary ingredient of the crime of sedition as thereby defined.

15. In conclusion, their Lordships will only add that the amendments of section 124A in 1898, the year after Tilak's case,2-3 by the inclusion of hatred or contempt and the addition of explanations 2 and 3 did not affect or alter the construction of the section laid down in Tilak's case,2-3 and, in their opinion, if the Federal Court, in AIR 1942 FC 221 had given their attention to Tilak's case,2-3 they should have recognised it as an authority on the construction of section 124A by which they were bound.

16. Their Lordships are accordingly of opinion that the appeal should be allowed and that the judgments and orders of the Courts below should be set aside, and that it should be declared that it is not an essential ingredient of a prejudicial act as defined in sub-para. (e) of Rule 34 (6), Defence of India Rules, that it should be an act which is intended or is likely to incite to public disorder. Their Lordships will humbly advise His Majesty accordingly. There will be no order as to costs.

Appeal allowed.