Authored By : William Comer Petheram, William ComerPetheram, William Comer Petheram, William Comer Petheram, William ComerPetheram

William Comer Petheram, Kt., C.J.

1. I shall direct the Jury as to the meaning of the section.

2. Mr. Jackson. I submit that it is for the Jury to decidewith regard both to law and fact.

William Comer Petheram, Kt., C.J.

3. It will be my duty to direct the Jury on the constructionof the section.

4. Mr. Jackson.-There is no case to go to a Jury underSection 124-A. The offence under that section really consists in writing aseditious libel, and the publishing it or causing it to be published is nooffence under the Penal Code. The prosecution admit that they have been unableto discover who is the writer of these articles. The only person liable is thecomposer of the articles, if Section 124-A be read by the side of Section 499,it will be seen that no mention is made of publication in the former section,and its omission must have been intentional, as the framers of the law hadalready the defamation section before them. In England, under Lord CampbellsAct, the publication of the libel itself had to be proved, and a person is notcriminally responsible for the acts of his agents--Reg. v. Holbrook-and Ors.L.R. 3 Q.B.D 60.

William Comer Petheram, C.J.

5. It appears to me perfectly clear that there is a case togo to the Jury. The question turns upon the meaning of Section 124-A, and Mr.Jacksons contention is that only the speaker of the words or the composer ofthe sentences is liable under the section. I do not think that contention isborne out by the words of the section. The offence is attempting to excitedisaffection by words intended to be read, and I think that whoever thecomposer or the writer might be, by whomsoever the writing or the printing wascomposed, the person who used them for that purpose within the opinion of theJury was guilty of an offence under Section 124-A.

6. Mr. Jackson.--I would ask to have the point reservedunder Section 25 of the Charter.

William Comer Petheram, C.J.

7. declined to reserve the point.

8. (Mr. Jackson, in proceeding to address the Jury, referredto the case of Reg. v. Sullivan 11 Cox. Cr. Ca., 52 for the purpose of showingthat both the law and the facts were for the consideration of the Jury, itbeing for them to determine the whole question of law and fact, whether thiswas a seditious libel or not. He referred to the history of the Press in India,and proceeded to call the attention of the Jury to the interpretation which thesection had received from Sir James Stephen and others. And on this pointcontinued]:

9. Originally the section was Section 113 of MacaulaysPenal Code, but was for some reason omitted from the Code itself. Sir J.Stephen, when the matter came to be considered in the year 1870, referred toSir Barnes Peacock, who on looking at his notes, said he thought the sectionhad been omitted by mistake, but had no positive recollection (vide Gazette ofIndia, August 6th 1870, Supp. 1019, 1311). There was on that occasion adiscussion as to Section 113, and Sir J. BARNES PEACOCK proposed a sectionwhich was thought to be too severe, and no corresponding section was enacted.Sir. J. STEPHEN in introducing the present section explained what the law ofEngland then was, and stated that he proposed that Section 124-A should bepassed into law, because if there were no provision in the law of India, theoffence would fall under the common law of England, and would be more severelypunishable; and he most distinctly asserted that there must be an intention toresist by force or an attempt to excite resistance by force before the offencecould be brought under the present section. The peculiarity of the law oftreason in England is that it considers every thought of the heart criminal,which is to be punished as soon as it is manifested by any overt act, but theclause as it stands insists on a distinction between disaffection anddisapprobation. A person may freely say what he pleases about any Governmentmeasure or any public man as long as it is consistent with a disposition to renderobedience to the lawful authority of Government. In connection with thissubject Sir J. Stephen has clearly said that the freedom of the press would notbe curtailed so long as the principle above laid down was adhered to. Sir J.STEPHEN has pointed out that articles far more violent than the ones which havebeen made the subject of this prosecution had appeared in the Englishnewspapers in India and had passed unnoticed. [Mr. Jackson then referred toLord Hobhouses minutes of the 18th May 1875 and the 10th August 1876 inconnection with the discussions on the Vernacular Press Act, and also referredto Lord Lyttons and Sir A. Arbuthnots speeches in Council, adopting these aspart of his argument to show the view which those authorities then took as tothe scope and meaning of the present section--vide Gazette of India, Supp.Vol., 1878, pages 457 to 481.] The interpretation then put upon the section bythose competent to do so must be taken as the right interpretation. The Juryhave a right to take into account the opinion of such men as Sir J. STEPHEN,and up to the year 1878 there was but one opinion as to the meaning of thesection. When the Vernacular Press Act was repealed in the year 1882, it wasagain expressly laid down that the freedom of the native press was to beinterfered with only on very special occasions--Gazette of India Supp. 1882 90.

10. [Mr. Jackson then went through the articles in greatdetail, and argued chat they contained no direct incitement to rebellion or theuse of force, and did not exceed the bounds of legitimate criticism, whenallowance was made for the difference between European and native methods ofthought and the conservative character of the paper. He also referred to thearguments for and against the Age of Consent Bill.]

William Comer Petheram, C.J.

11. Charged the Jury as follows:

12. The four accused are charged with an offence underSection 124A of the Penal Code, and inasmuch as the offence in question istreated and defined by that section, I have thought it desirable that youshould have the section itself in your hands whilst I explained the law to you,and also whilst it was being discussed by Mr. Jackson. There are really twoquestions for you to consider. First, you must clearly understand what it is thathas been made into an offence by the section, and when you understand that, youhave to consider whether the evidence before you proves that such an offencehas been committed by the prisoners. The section is divided into two parts, andis as follows: "Whoever, by words either spoken or intended to be read, orby signs, or by visible representation, or otherwise, excites or attempts toexcite feelings of disaffection to the Government established by law in BritishIndia, shall be punished with transportation for life or for any term, to whicha fine, may be added, or with imprisonment for a term which may extend to threeyears, to which fine may be added, or with fine."

Explanation.--Such a disapprobation of the measures of theGovernment as is compatible with a disposition to render obedience to thelawful authority of the Government, and to support the lawful authority of theGovernment, against unlawful attempts to subvert or resist that authority, isnot disaffection. Therefore the making of comments on the measures of theGovernment with the intention of exciting only this species of disapprobationis not an offence within this clause.

13. Mr. Jackson contended that the words"disaffection" and "disapprobation" wore synonymous words,and had one and the same meaning. If that reasoning were sound, it would beimpossible for any person to be convicted under the section, as every class ofwriting would be within the explanation. But you, gentlemen of the Jury, arethoroughly acquainted with the English language, and must know that there is avery wide difference between the meaning of the two words disaffection anddisapprobation. Whenever the prefix dis is added to a word, the word formedconveys an idea the opposite to that conveyed by the word without the prefix.Disaffection means a feeling contrary to affection; in other words, dislike orhatred. Disapprobation means simply disapproval. It is quite possible todisapprove of a mans sentiments or action and yet to like him. The meaning ofthe two words is so distinct that I feel it hardly necessary to tell you thatthe contention of Mr. Jackson cannot be sustained. If a person uses eitherspoken or written words calculated to create in the minds of the persons towhom they are addressed a disposition not to obey the lawful authority of theGovernment, or to subvert or resist that authority, if and when occasion shouldarise, and if he does so with the intention of creating such a disposition inhis hearers or readers, he will be guilty of the offence of attempting toexcite disaffection within the meaning of the section, though no disturbance isbrought about by his words or any feeling of disaffection, in fact, produced bythem. It is sufficient for the purposes of the section that the words used are calculatedto excite feelings of ill-will against the Government and to hold it up to thehatred and contempt of the people, and that they were used with the intentionto create such feeling. The second question for you, gentlemen of the Jury,then, will be whether, upon the evidence before you, you think that thearticles circulated by the prisoners were calculated to create such feelings inthe minds of their readers, and if so, whether they intended to create suchfeeling by their circulation.

14. Having taken this explanation of the section from me, itnow rests with you to decide whether the accused by the words of the articleswhich were intended to be read have been guilty of an attempt to excitedisaffection against the Government. You will have to bear in mind the class ofpaper which is being prosecuted and the class of people among whom itcirculated, taking into consideration the articles which have been made thesubject of the indictment and the others which have been put in during thecourse of the trial. Those articles are not addressed to the lowest or mostignorant mass of the people. You will see from the article referring to jutethat they were not addressed to the cultivating classes. They are addressed topeople of the respectable middle class who can read and understand theirmeaning--more or less the same class as the writers. You will have to consider,not only the intent of the person who wrote and disseminated the articles amongthe class named, but the probable effect of the language indulged in. Then youwill have to consider the relations between the Government and the people, andhaving considered the peculiar position of the Government, and the consequenceto it of any well-organized disaffection, you will have to decide whether thereis an attempt or not to disseminate matter with the intention of exciting thefeelings of the people till they become disaffected. British India is part ofthe British Empire, and is governed like other parts of the Empire by personsto whom the power is delegated for that purpose. There is a great differencebetween dealing with Government in that sense and dealing with any particularadministration. Were these articles intended to excite feelings of enmityagainst the Government, or, on the other hand, were they merely expressing,though in strong language, disapprobation of certain Government measures Youwill bear in mind that the question you have to decide has reference to theintention; and, in fact, the crime consists of the intention, for a man mightlawfully do the act without the intention. The evidence of the intent can onlybe gathered from the articles. The ultimate object of the writer may be onething, but if, in attaining that object, he uses as the means the exciting ofdisaffection against the Government, then he would be guilty under Section124A. If you think that these people, with the object of procuring the repealof the Age of Consent Act, or of increasing the sale of their paper,disseminated these articles intending to excite feelings of enmity, you will bebound to find a verdict of guilty. As to the evidence of intent, the articlesare the only evidence. The charges are based on the five articles which are thesubject of the indictment. Other articles have been quite properly put induring the progress of the trial, but no charges are laid in connection withthe latter. They were put in, some by the prosecution and some by the defence,to prove that their view of the intent of the articles charged was indicated inthe others. These articles have been read and re-read to you, gentlemen, sofrequently, that I do not consider it necessary to discuss them in detailagain. I will simply touch on their bearing on the case, and as to whether theydisclose an intent to cause disaffection or disapprobation only.

15. [His Lordship then proceeded to refer to the articlesand afterwards continued-]

16. It will be for you to come to a decision on the tone ofthese articles. You must not look to single sentences or isolated expressions,but take the articles as a whole, and give them a full, free, and generousconsideration as Lord FITZGERALD has said; and even allowing the accused thebenefit of a doubt you will have to say whether the articles are fair commentsand merely expressions of disapprobation, or whether they disclose an attemptto excite enmity against the Government.

17. In leaving the matter to your consideration, gentlemenof the Jury, I would ask you, and ask you earnestly, to dismiss from your mindsall questions of prejudice, and look at this matter in as impartial a spirit aspossible. The only question is that of the intent; you have nothing to do withthe policy of the Government in instituting this prosecution, or the policy ofthe Government in passing the Consent Act, or what has been called the GaggingAct; you have nothing to do beyond dealing with the evidence in this case; andif you allow anything else to influence you in your decision upon the questionbefore you, you will be failing in your duty.

18. Your opinion should not be influenced by the opinions ofany person however eminent. The opinions of many great men have been quoted toyou, and you have been requested to accept those opinions as your own inarriving at a correct, decision in this case. I would repeat that you are notto accept the opinion of any one, be he ever so eminent; if you do so, youwould not be doing your duty; you are to judge of this case, and give yourverdict only on the evidence in the case. The only question for you to decideis, were the articles intended, and were they likely, to cause disaffection.The defence urge that the articles only expressed disapprobation of Governmentmeasures: the prosecution say they were deliberate attempts to incite thepeople to disaffection. I have now dealt with the whole matter, and having toldyou what is the law to guide you, I now ask you to consider your verdict on theevidence before you.

19. The Jury then retired to consider their verdict. Ontheir return the Clerk of the Crown asked them if they were agreed upon theirverdict.

20. The Foreman of the Jury stated that the Jury were notagreed, and that there was no chance of their returning an unanimous verdict.Upon which His Lordship said that he would not take any verdict that was notunanimous in this case.

21. The Jury were then discharged, the case being ordered toremain as a remanet for next Sessions, the accused being enlarged on bail.

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Queen-Empress vs.Jogendra Chunder Bose and Ors. (25.08.1891 - CALHC)