Judgement Law Rep. 74 Ind. App. 89 ( 1946- 1947) King-Emperor V. Sadashiv Narayan Bhalerao 57 Appeal (No. 49 of 1946) by special leave from a judgment of the High Court (January 25, 1944) which had affirmed an order of Mr. S. D. Adhav, Magistrate of the First Class, Jalgaon City (June 22, 1943), acquitting the respondent who had been charged under r. 38, sub-r. 5, of the Defence of India Rules for having, on January 26, 1943, made, published and distributed copies of a leaflet which contained prejudicial reports within the meaning of r. 34, sub-r. 7 read with r. 34, sub-r.6 (e) and (g) of the Defence of India Rules, and having thus con travened r. 38, sub-r.1 (c). The following facts and statutory provisions are taken from the judgment of the Judicial Committee. The Defence of India Rules, which were made by the Central Government under s. 2 of the Defence of India Act, 1939 (XXXV of 1939)—so far as material—provided as follows "34. (6) prejudicial act means any act which is intended or is likely— "(e) to bring into hatred or contempt, or to excite disaffection towards, His Majesty or the Crown Representative or the Government established by law in British India or in any other part of His Majestys dominions; "(g) to cause fear or alarm to the public or to any section of the public; "34. (7) prejudicial report means any report, statement or visible representation, whether true or false, which, or the publishing of which, is, or is an incitement to the commission of, a prejudicial act as defined in this rule; "38. (1) No person shall, without lawful authority or excuse— "(c) make print, publish or distribute any document containing, or spread by any other means whatsoever, any prejudicial report; "(5.) If any person contravenes any of the provisions of this rule, he shall be punishable with imprisonment for a term which may extend to five years or with fine or with both." The document which formed the subject-matter of the charge was admittedly made and published by the respondent at Jalgaon City on January 26, 1943, and he admittedly distributed printed copies thereof. It consisted of a leaflet addressed. It consisted of a leaflet addressed. To all the patriots and it will be sufficient to quote some of the statements in the leaflet “Unprecedented calamity has befallen our nation and the whole of our country has been undergoing sufferings. The Imperialists have by their barbarous policy turned the entire country into a cremation ground. When we were in great need of the national leaders for the purpose of the national defence, the bureaucracies has declared the National Congress unlawful and have detained all the leaders in jail. "By reason of firings and arrests several villages in Khandesh have been made desolate and on account of this great calamity the people are losing their moral courage (day by day) and the whole of the country is putting on moribund appearance. The people in Khandesh have been harassed by the inequitable collective fines. As the Government is unable to solve the food problem, the cry of hunger is heard everywhere; and a situation has arisen everywhere in which serious food riots are expected. By depriving the mills of the coal fifty thousand families Law Rep. 74 Ind. App. 89 ( 1946- 1947) King-Emperor V. Sadashiv Narayan Bhalerao 58 of the workers have been thrown into the ditch of hunger. "But the Imperialists do not stop even at this. They are w making ceaseless efforts to create a split between the people and the patriots. They have been trying to strengthen their hold by creating disputes and differences among the people by various ways such as creating a split between the owner and the worker on the question of dearness allowance and coal, between the merchants and consumers on the question of food grains and between the Muslims and the non-Muslims on the question of collective fines. The disunion among the people is their last resort. "If we blindly carry on sabotage activities simply because the Imperialists are not transferring power to us the Japanese Imperialism may dominate over Rs. Therefore in order to face both these calamities we must achieve this great task of bringing about unity on the burning questions before the public such as national defence and self-determination and must take over the control of national defence. After a trial, the learned magistrate acquitted the respondent. Therefore in order to face both these calamities we must achieve this great task of bringing about unity on the burning questions before the public such as national defence and self-determination and must take over the control of national defence. After a trial, the learned magistrate acquitted the respondent. He pointed out that it was nowhere suggested in the leaflet that the work of national 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 world-wide 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 Niharendu Dutt Majumdar v. King-Emperor (1). On appeal by the Crown the decision of the magistrate was affirmed by the High Court (Wadia and Weston JJ.) and the appeal was dismissed; the learned judges held themselves bound by the decision of the Federal Court in Niharendus case (1). The charge of having committed a prejudicial act within the meaning of r.34, sub-r.6 (g), was not pressed and may be disregarded. The learned judges, at the request of the Crown, certified for the purpose of s. 205 of the Government of India Act, 1935, that the case did 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 connexion 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.” 1947. Jan. 20, 21. Sir Walter Monckton K.C. and Wallach for the appellant. Each of the judges in the High Court-stated in his judgment that he would have convicted the respondent but for the judgment of the Federal Court on the same rule, r. 34, sub-r.6 (e), in Niharendu Dutt Majumdar v. King-Emperor ([ 1942] F. C. R. 38.). Jan. 20, 21. Sir Walter Monckton K.C. and Wallach for the appellant. Each of the judges in the High Court-stated in his judgment that he would have convicted the respondent but for the judgment of the Federal Court on the same rule, r. 34, sub-r.6 (e), in Niharendu Dutt Majumdar v. King-Emperor ([ 1942] F. C. R. 38.). Where a judgment of the Federal Court is inconsistent with the ratio decidendi of decisions of the Judicial Committee of the Privy Council the latter are binding on the courts in India. We are anxious to establish that the old principle which has prevailed for fifty years in India, and which has been approved by this Board—that incitement to actual violence is not an essential ingredient in the offence under the rule—is still right. It is submitted that the decision in Niharendus case (Ibid. 50.) was incorrect; it was there said that the acts or words complained of must either incite to disorder "or must be such as to satisfy reasonable men that that is their intention or tendency (2)." The decision in Niharendus case ([ 1942] F. C. R. 38.) is inconsistent with the ratio decidendi of the judgments of the Privy Council in the following cases Wallace-Johnsn v. The King ([ 1940] A. C. 231.), where the language of the section there in Law Rep. 74 Ind. App. 89 ( 1946- 1947) King-Emperor V. Sadashiv Narayan Bhalerao question is identical in material respects with the rule in this case, and it was held that incitement to violence is not a necessary ingredient of the crime of sedition, and also that there being a statutory definition one was precluded from considering what sedition was under English and Scotch law (Ibid. 239.). Queen-Empress v. Amba Prasad (( 1897) I. L. R. 20 A. 55, 58.) deals with s. 124A of the Indian Penal Code, as it originally stood, in which the offence of sedition is described in the same terms as in sub-r.6 (e) of r. 34 of the Defence of India Rules. 239.). Queen-Empress v. Amba Prasad (( 1897) I. L. R. 20 A. 55, 58.) deals with s. 124A of the Indian Penal Code, as it originally stood, in which the offence of sedition is described in the same terms as in sub-r.6 (e) of r. 34 of the Defence of India Rules. In Queen-Empress v. Jogendra Chunder Bose (( 1891) I. L. R. 19 C. 35.) it was said that " it is sufficient for the " purposes of the section [s. 124a] that the words used are " calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the " people, and that they were used with the intention to create " such feeling (Ibid. 44.)." Again, in his summing-up to the jury in Queen-Empress v. Bal Gangadhar Tilak (( 1897) I. L. R. 22 B. 112, 135). Strachey J. said that "the offence consists in exciting or attempting to excite" in others certain bad feelings towards the Government. "It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small.” That case came up to the Board by way of application for special leave to appeal, and the Board, in refusing leave, approved Strachey J.s summing up (( 1897) L. R. 25 I. A. 1, 8.). Besant v. Advocate-General of Madras (( 1919) L. R. 46 I. A. 176, 194.) dealt with Tilak’s case (I. L. R. 22 B 112.) with approval. It is submitted that the decision in Niharendu’s case (1) was wrong, that incitement to violence is not an essential ingredient of the offence, and that the appeal ought to be allowed. The respondent should have been convicted under r. 38, sub-r.5, of the Defence of India Rules. The respondent did not appear and had not filed a case. 1947. Feb. 18. The judgment of their Lordships was delivered by LORD THANKERTON, who stated the facts and statutory provisions set out above and continued The purpose of this appeal is to challenge the soundness of the decision in Niharendus case ([ 1942] F. C. R. 38.) which their Lordships will therefore consider in some detail. 1947. Feb. 18. The judgment of their Lordships was delivered by LORD THANKERTON, who stated the facts and statutory provisions set out above and continued The purpose of this appeal is to challenge the soundness of the decision in Niharendus case ([ 1942] F. C. R. 38.) 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 r. 34, sub-r.6, sub-paras, (e) and (k), of the 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 r. 34, sub-r.6 (e). The Federal Court did not deal with sub-para, (k) of r. 34, sub-r. 6. The judgment of the court was delivered by Gwyer C.J., who said, in reference to sub-para, (e), that the prejudicial act was "described in precisely the same language as is used to describe the offence I of sedition in s. 24Aof the Indian Penal Code. We were invited to say that an offence described merely as a prejudicial act in the Defence of India Rules ought to be regarded differently " from an offence described as sedition in the Code, even " though the language describing the two filings is the same. " We cannot accept this argument. Sedition is none the less "sedition because it is described by a less offensive name; " and in our opinion the law relating to the offence of sedition as defined in the Code is equally applicable to the prejudicial act defined in the Defence of India Rules. We do not think that the omission in the rules of the three Explanations appended to the section of the Code affects the matter. " These are added to remove any doubt as to the true meaning " of the legislature; they do not add to or subtract from the " section itself; and the words used in the rules ought to be interpreted as if they had been explained in the same " way (Ibid. " These are added to remove any doubt as to the true meaning " of the legislature; they do not add to or subtract from the " section itself; and the words used in the rules ought to be interpreted as if they had been explained in the same " way (Ibid. 48.)." The learned Chief Justice then proceeds to con sider the meaning of sedition in English law, as defined and explained by decision of the courts, and state the principle to be derived therefrom as follows Public disorder, or the reasonable anticipation or likelihood of public disorder, is " thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency (Ibid. 50)." The learned Chief Justice then applied that test to the appellants speech, and found that it contained no Law Rep. 74 Ind. App. 89 ( 1946- 1947) King-Emperor V. Sadashiv Narayan Bhalerao 60 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. Their Lordships agree, for the purposes of the present appeal, that there is no material distinction between r. 34, sub-r. 6, sub-para, (e), and s. 124A of the 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. The word "sedition" does not occur either in s. 124A or in the Rule; it is only found as a marginal note to s. 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. 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. Their Lordships are unable to find anything in the language of either s. 124A or the Rule which could suggest that " the " acts or words complained of must either incite to disorder " or must be such as to satisfy reasonable men that that is " their intention or tendency." The first explanation to s. 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 Niharendus case ([ 1942] F. C. R. 38.) proceeded on a wrong construction of s. 124A of the Penal Code and of sub-para, (e) of r. 34, sub-r.6, of the Defence of India Rules. 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. In the High Court three decisions of this Board were referred to, but the learned judges preferred the decision of the Federal Court in Niharendus case ([ 1942] F. C. R. 38.) as the same sub-paragraph of r. 34, sub-r. 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 Niharendus case ([ 1942] F. C. R. 38.), and it is regrettable that the Federal Court did not pay attention to these cases, two of which are Indian. In Queen Empress v. Bal Gangadhar Tilak (( 1897) I. L. R. 22 B. 112; L. R. 25 I. A. 1.) the charge was under s. 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 (I. L. R. 22 B. 135.) " The offence consists in " exciting or attempting to excite in others certain bad feelings " towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. If the " accused intended by the articles to excite rebellion or " disturbance, his act would doubtless fall within s. 124A, 14 and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or Law Rep. 74 Ind. App. 89 ( 1946- 1947) King-Emperor V. Sadashiv Narayan Bhalerao 61 forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebel-" lion or forcible resistance to the Government. In my " opinion, that view is absolutely opposed to the express " words of the section itself, which as plainly as possible makes " the exciting or attempting to excite certain feelings, and not " the inducing or attempting to induce to any course of action " such as rebellion or forcible resistance, the test of guilt. In my " opinion, that view is absolutely opposed to the express " words of the section itself, which as plainly as possible makes " the exciting or attempting to excite certain feelings, and not " the inducing or attempting to induce to any course of action " such as rebellion or forcible resistance, the test of guilt. " I can only account for such a view by attributing it to a " complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope.” In refusing leave to appeal, inter alia, on the ground of misdirection as to the proper construction of s. 124A, the Board expressly approved of the charge (L. R. 25 I. A. 1, 8.) It is sufficient for their Lordships to adopt the language of Strachey J. as exactly expressing their view in the present case. In Besant v. Advocate-General of Madras (( 1919) L. R. 46 I. A. 176.) it was pointed out by the Board that s. 4 of the Indian Press Act of 191.0, which was under consideration in that case, was closely similar in language to s. 124A of the Penal Code, which had been the subject of careful consideration in Tilaks case (3) above referred to. In Wallace-Johnson v The King ([ 1940] A. C. 231.) under sub-s.8 of s. 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. In conclusion, their Lordships will only add that the amend ments of s. 124A in 1898, the year after Tilaks case (I. L. R. 22 B. 112; L.R. 25 I. A. 1.), by the inclusion of hatred or contempt and the addition of the second and third explanations, did not affect or alter the construction of the section laid down in Tilaks case (I. L. R. 22 B. 112; L. R. 25 I. A. 1.), and, in their opinion, if the Federal Court, in Niharendu’s case ([ 1942] F. C. R. 38.) had given their attention to Tilaks case (I. L. R. 22 B. 112; L. R. 25 I. A. 1.), they should have recognized it as an authority on the construction of s. 124A by which they were bound. 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 r. 34, sub-r.6, of the 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.