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1940 DIGILAW 186 (ALL)

Emperor v. Swami Sarupanand

1940-09-30

GHULAM HASAN, THOMAS

body1940
JUDGMENT Thomas C. J. and Ghulam Hasan, J. - This is an application in revision on behalf of the Local Government u/s 439 of the Code of Criminal Procedure, against the order of the learned Sessions Judge of Hardoi dated the 29th May, 1940, Setting aside the order of the learned District Magistrate of Hardoi binding the accused Swami Swarupanand u/s 108 of the Code of Criminal Procedure. 2. The accused Swami Swarupanand was called upon on the 28th March, 1940, to show cause why he should not be ordered to furnish a personal bond in Rs. 500 with two sureties, each in the like amount, to be of good behavior for a period of one year." The reason why this notice was issued was that he delivered' objectionable speeches at Pihani, Mallawan and Pall with the intention of disseminating seditious matters and promoting or attempting to promote feelings of hatred or enmity between different classes of his Majesty's subjects. 3. The learned District Magistrate under the provisions of Section 112 of the Code of Criminal Procedure confirmed the notice, and ordered the accused to execute a bond in Rs. 500 with two; sureties, each> in Rs. 250, to be of good behavior for a period of one year and in default to undergo rigorous imprisonment for one year. Under the provisions of Section 123 (6) of the Code of Criminal Procedure the sentence of rigorous imprisonment for one year was illegal. The imprisonment for failure to give security for good behavior shall, where the proceedings have been taken u/s 108, be simple, and the learned District Magistrate was wrong in ordering rigorous imprisonment. 4. The notice which was issued to the accused contained a list of 11 speeches alleged to have been delivered by the accused in different villages, but the prosecution at the trial put forward only three speeches, namely- 1. Ex. 4 delivered at Pali on the 6th November, 1939. 2. Ex. 3 delivered at Mallawan on the 15th November, 1939. 3. Ex. 1 delivered at Islamnagar on the 8th February, 1940. 5. The accused denied making the objectionable portions of the speeches relied on by the prosecution, and stated that he had in his speech stated that he had ID his speech stated that British rule was better than Russian or German but not as compared with that of Indians. 6. Ex. 1 delivered at Islamnagar on the 8th February, 1940. 5. The accused denied making the objectionable portions of the speeches relied on by the prosecution, and stated that he had in his speech stated that he had ID his speech stated that British rule was better than Russian or German but not as compared with that of Indians. 6. The speech of the 6th November, ' 1939, was recorded by head constable Razzaq Beg and was read over to Saghir Ahmad. 7. The speech of the 15th November, 1939, was delivered to an audience of 400 or 500 persons, and it was recorded by Khuda Yar Khan head-constable. 8. The speech of the 8th February, 1940, was recorded by Naik Wailayat Hussain and, according to his evidence, the audience numbered about 500. 9. The finding of the learned Sessions Judge with regard to the speech (Ex. 1) of the 8th February, 1940, is as follows: It appears to me that the report (Ex. 1) is merely a gist of the speech and is not a full record of it, and in the case the sentences introduced in the report are merely isolated sentences of the speech and are without the correct context in which they were uttered by the speaker.... No doubt, as I have observed above, the sentences if they be considered to be the correct statement of the speaker, would certainly bring the accused within the offence u/s 124-A, but if once I conclude that the report is not a full record and a good deal of the speech had been omitted, and if I fail to put the proper context to the sentences, I would hesitate to take any action on it...and with these considerations I do not consider it proper to accuse him (i.e. the accused) of the speech as is reported in Ex. 1. 10. It is thus clear from the above finding that the learned Sessions Judge is not satisfied, and he is of opinion that the speech recorded by the witness was not the correct speech. 11. The finding of the learned Sessions Judge in respect of the speech made at Mallawan on the 15th November, 1939, is to the effect that the speech was made by the accused and it was offensive. 12. 11. The finding of the learned Sessions Judge in respect of the speech made at Mallawan on the 15th November, 1939, is to the effect that the speech was made by the accused and it was offensive. 12. With regard to the speech of the 6th November, 1939, delivered at Pali the finding of the learned Sessions Judge is to the following effect: There are no words in it which could be said to excite disaffection against the Government or to set a class against another. The speaker simply addressed the gathering to bring up the spirit of self-sacrifice to action and to be prepared even to go to jail or die for their cause and I do not think the words as are reported in Ex 4 and discussed above would bring the accused within an offence u/s 124-A or Section I63-A I. P.C. I do not consider it to be one on which any prosecution u/s 124-A or 153-A could be possible. 13. The objectionable portion of Ex. 4 relied upon by the prosecution is as follows: O, white-skinned I We are all ready to receive bullets, go to jail and die but we want complete independence. We will bear all hardship and win the fight that is to come. Be ready. 14. The objectionable portion of the speech relied on by the prosecution delivered at Mallawan on the 15th November, 1939, is as follows: The bugles for the freedom of this country were first sounded 58 years ago. Speeches alone were not made but sacrifices were offered. In India where rivers of milk used to flow river of blood are flowing. Government delivered its first ultimatum by passing a Defence of India Act on September 1, 1939. The taluqdars and zamindars are brokers of Government and what they desire is to go on committing repression on the riots.... There remain the white face and the oblique eye. He has ruled over you for 150 years and set Hindus against Musalmans and destroyed their strength, the zamindars against Kisans and gave a fillip to crime. 15. The objectionable portions of the speech made on the 8th February, 1940, are as follows: These taluqdars are tolls of the Government and will not do anything against it. The Government has committed many cruelties since the great Mutiny upto the present day. 15. The objectionable portions of the speech made on the 8th February, 1940, are as follows: These taluqdars are tolls of the Government and will not do anything against it. The Government has committed many cruelties since the great Mutiny upto the present day. They hanged the suns of the Emperor Bahadur Shah and sent to gallows big men-Hindus and Mohammedans. They had come to trade and by deceit and treachery became the rulers. The Congress Government has inflicted a death blow on the British and they now desire to call a truce. We will continue to worry the English till we have achieved complete independence. We must gird up our loins to fight the Government. Nothing can be achieved without bloodshed. 16. There can be no doubt that this speech, if proved to have been made by the accused, is seditious and attempts to promote feelings of enmity and hatred between different classes of His Majesty's subjects, but, as we have said above, the learned Sessions Judge is of opinion that it is not a true record of what the accused said. We are dealing with an application for revision and not an appeal, and we feel ourselves bound to accept the findings of fact arrived at by the learned Sessions Judge. The accused is alleged to have delivered the speech for about 45 minutes. The note taken down by the witness consists of 17 lines. The witness stated that it was drizzling. The note appears to have been taken down with a fountain-pen and there is no blur on the paper and nothing to show that even a drop of water fell on it. We have carefully read the speech and find that no Sanskrit or Hindi words are used by the speaker, who is a Hindu. We, therefore, reject this speech from consideration. 17. With regard to Ex. 4 of the 6th November, 1939, we are of opinion that it is very doubtful whether this speech would bring the accused within the purview of Section 124-A or Section 153-A of the Indian Penal Code. We are, therefore, left with the speech of the 15th November, 1939 (Ex. 3). 17. With regard to Ex. 4 of the 6th November, 1939, we are of opinion that it is very doubtful whether this speech would bring the accused within the purview of Section 124-A or Section 153-A of the Indian Penal Code. We are, therefore, left with the speech of the 15th November, 1939 (Ex. 3). The learned Sessions Judge, as we have said, held that it was delivered by the accused and it was objectionable, but "in his opinion the commission of only one offence u/s 163-A was not to be taken to justify the proceedings u/s 108 of the Code of Criminal Procedure." 18. He was further of opinion that the element of intention on the part of the accused was not to be deduced from a solitary instance. 19. In Chandra Bhan Gupta v. King-Emperor (1934) 11 O.W.N. 26, it was held that: the provisions of Section 108 (a) Criminal Procedure Code, cannot properly be applied in respect of an isolated speech made by the accused on a special occasion and at a meeting for a special purpose and, therefore, an accused cannot be proceeded against under that section in respect of an isolated speech when there is no evidence of his having made any other objectionable speech in the past, or of his having any intention of doing so in the future. 20. There is, of course, no evidence on the record of any intention of the accused of delivering such speeches in future. 21. In the notice, as we have pointed out, 11 speeches were referred to, but, with the exception of three which formed part of the charge, the prosecution did not attempt to prove the remaining speeches, so we refuse to take them into consideration. 22. In our opinion a person who makes a seditious speech, or who is found on one occasion only circulating notices which may have the effect of promoting enmity between classes, may possibly be prosecuted u/s 153-A of the Indian Penal Code, but he cannot be proceeded against u/s 108 of the, Code of Criminal Procedure. 23. It may be pointed out that with the exception of one speech, which was made on the 8th February, 1940, all the speeches were made in November, 1939, and there is nothing on the 'record to show why no action was taken against the accused till the, 14th March, 1940. 23. It may be pointed out that with the exception of one speech, which was made on the 8th February, 1940, all the speeches were made in November, 1939, and there is nothing on the 'record to show why no action was taken against the accused till the, 14th March, 1940. It may be on account of his speech of the 8th February, 1940. 24. It is not necessary for us to consider whether action should not have been taken against the accused under Sections 124-A and 153-A of the Indian Penal Code. 25. We are therefore of opinion that the order of the learned Sessions Judge is correct and we dismiss the application.