CASE ANALYSIS

Submitted by: Rajveer sharma

SAP ID: 81012019119

Emperor vs Sadashiv Narayan Bhalerao on 25 January, 1944

Equivalent citations: (1944) 46 BOMLR 459
Bench: N Wadia, Weston
IN THE HIGH COURT OF BOMBAY

Facts of the Case

The accused Sadashiv Narayan Bhalerao. The accused had been charged under Rule
38(5) of the Defence of India Rules, 1939, for having on January 26, 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) of the Defence of India Rules,
1939.

The accused admitted having published and distributed copies of the leaflet, but
contended that in doing so he had committed no offence. He alleged that he had published
the leaflet on behalf of the Hindi Communist Party which had been making efforts to
check the activities of Fifth Columnists in the country, to dissuade people from
committing acts of sabotage, to prevent antisocial activities such as hoarding of food-
grains, and to urge the people to take part in the defence of the country against the
Japanese.

Judgment

The learned Magistrate after considering the passages in the leaflet, which were objected
to by the prosecution, came to the conclusion that there were no words in the leaflet
which amounted to incitement to or a suggestion to resort to the use of force or to
incitement to public disorder, or which could be regarded as justifying a reasonable
anticipation or likelihood of public disorder. He held, following the recent judgment of
the Federal Court in Niharendu Dutt Majumdar v. The King Emperor [1942] F.C.R. 38
that as there was nothing in the leaflet which would justify the inference that they were
distributed by the accused in order to incite the public to disorder and since, according to
the judgment of their Lordships of the Federal Court "public disorder, or the reasonable
anticipation or likelihood of public disorder, is the gist of the offence, and the acts or
words complained of must either incite the disorder, or must be such as to satisfy
reasonable men that that is their intention or tendency ", the accused had committed no
offence under Rule 38 of the Defence of India Rules. He, therefore, acquitted the accused.

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4. It has been contended before us by the learned Advocate General who appears for the
Government of Bombay that it has been laid down by this Court, by other High Courts
and by their Lordships of the Privy Council that incitement to violence is not a necessary
ingredient of an offence under Section 124A of the Indian Penal Code, and that it is not
therefore necessary to establish under that section or under Rule 38 that the words
complained of were such as were likely to incite to disorder or create a reasonable
anticipation or likelihood of such disorder.

5. Rule 34(6)(e) which defines the offence for which the accused is principally charged is
in practically the same language as Section 124A of the Indian Penal Code, Section
124A runs as follows :

Whoever by words, either spoken or written, or by signs, or by visible representation, or

otherwise, brings oil attempts to bring into hatred or contempt, or excites or attempts to
excite disaffection towards, Her Majesty or the Crown Representative or the Government
established by law in British India, or British Burma, shall be punished with
transportation for life or any shorter term, to which fine may be added, or with
imprisonment which may extend to three years, to which fine may be added, or with fine.

The first Explanation to the section says " The expression ' disaffection' includes
disloyalty and all feelings of enmity." Rule 38(1) provides that no person shall, without
lawful authority or excuse do any prejudicial act, and "prejudicial act" is defined in Rule
34(6)(e) as any act which is intended or is likely 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 Majesty's dominions. The
offences dealt with by the two provisions are therefore practically identical, and their
Lordships of the Federal Court themselves emphasize this point. In the course of their
judgment in dealing with "prejudicial act" under Rule 34(6)(e) they say (p. 48):-

It will be observed that the first of these acts is described in precisely the same language
as is used to describe the offence of sedition in Section 124A of 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 things 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 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.

6. The learned Advocate General has relied on certain decisions of this Court and of other
High Courts and of the Privy Council as regards the interpretations, of Section 124AI of
the Indian Penal Code in which it has been held that incitement to violence is not a
necessary ingredient of an offence under that section. In Queen-Empress v. Bal
Gangadhar Tilak (1897) I.L.R. 22 Bom. 112 Mr. Justice Strachey in his charge to the jury

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dealt with Section 124A as it stood at the time (1897) before the amendment made by Act
IV of 1898. The section was as follows :

Whoever by words, either spoken or intended to be read, or by signs, or by visible

representation, or otherwise, excites or attempts to excite feelings of disaffection to the
Government established by law in British India, shall be punished with transportation for
life or for any term, to which fine may be added, or with imprisonment for a term which
may extend to three years, to which fine may be added, or with fine.

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 Section 124A, 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 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 rebellion 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. 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 this case an application for leave to appeal
was made to the Privy Council and one of the grounds on which the leave to appeal was
asked for was that the Judge had misdirected the jury as to the meaning of Section 124A :
Bal Gangadhar Tilak v. Queen-Empress (1897) I.LR. 22 Bom. 528 P.C. (528). One of the
grounds urged in the argument of the learned Counsel who appeared for the petitioner
was that the Judge had directed the jury that " disaffection" meant ill-will in any form, to
the Government, and had stated that he agreed with the definition given in Queen-
Empress v. Jogendra Chunder Bose (1891) I.L.R. 19 Cal. 35 where the Chief Justice of
Bengal had taken the word to mean the absence of affection. It was argued that this might
vary in degree from indifference to extreme hostility, that the term was vague, and that
the word " sedition " used in English law and explained as " disloyalty in action" was
more clear. In refusing to grant leave their Lordships of the Privy Council approved the
charge delivered to the jury by Strachey J. and said that taking a view of the whole of the
summing-up, which was at great length, there was nothing in that summing up which
called upon them to indicate any dissent from it or necessity to correct what was therein
contained.

In Mrs. Besant v. Emperor (1916) I.L.R. 39 Mad. 1085, S.B. which was a case Under
Section. 3, 4, 17, 19, 20 and 22 of the Indian Press Act of 1910, the Madras High Court
took the same view as regards the meaning of Section 4 of that Act, the language of
which was very similar to the language used in Section 124A of the Indian Penal Code
and Rule 34(6)(e) of the Defence of India Rules, Section 4 of the Indian Press Act of
1910 empowered the Local Government to make an order of forfeiture with regard to a

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press when it appeared to the Local Government that the press had been used for printing
or publishing any newspaper containing any words " which are likely or may have a
tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor,
implication or otherwise-

(a) to incite...to any act of violence, or....

(c) to bring into hatred or contempt His Majesty or the Government established by law in
British India...or any class or section of His Majesty's subjects in British India, or to
excite disaffection towards His Majesty or the said Government ....or

(e) to encourage or incite any person to interfere with the administration of the law or
with the maintenance of law and order,..

In this case it was contended that the words " hatred and contempt" used in Section 4 of
the Act mean only such hatred and contempt as would lead to the commission of the
crimes referred to in the other clauses of the sub-section, namely, murder, violence,
resistance to the law, intimidation of public servants and others. In dealing with this
question Ayling J. referred to the charge of Strachey J. in Queen-Empress v. Bal
Gangadhar Tilak, referred to above, and pointed out that that charge contained an
exhaustive discussion of the law of sedition, and that he was selecting it and relying on it
with more confidence because it was substantially approved by their Lordships of the
Privy Council. This case went up in appeal to the Privy Council (Besant v. Advocate-
General of Madras (1919) I.L.R 43 Mad. 146 : s.c. 21 Bom. L.R. 867, P.C.) Their
Lordships observed that though the language of Section 4 of the Indian Press Act, 1910,
was not precisely the same as that of Section 124A of the Indian Penal Code, it was
closely similar to the language of that section, and they pointed out that Section 124A of
the Indian Penal Code had been,the subject of careful consideration in the case of Queen-
Empress v. Bal Ganga-dhar Tilak (1897) I.L.R. 22 Bom. 112, 528 and in other cases.

10. The two decisions referred to above are fairly old, the decision in Tilak's case being of
1897 arid that in Mrs. Besant's case of 1919. The learned Advocate General also drew our
attention to a more recent ruling of the Privy Council in Wallace-Johnson v. The King
[1940] A.C. 231. That was a case from West Africa and dealt with the interpretation
of Section 326 (later Section 330) of the Criminal Code, 1936, of the Gold Coast. The
case turned on the meaning of the words " seditious words or writing " occurring in that
section. Sub-section (8) of the section defined "seditious intention" as an intention (1) to
bring into hatred or contempt or to excite disaffection against the person of His Majesty,
his heirs or successors or the Government of the Gold Coast as by law established, or...
(4) to bring into hatred or contempt or to excite disaffection against the administration of
justice in the Gold Coast, In interpreting these words their Lordships said (p. 240) :

Nowhere in the section is there anything to support the view that incitement to violence is
a necessary ingredient of the crime of sedition. Violence may well be, and no doubt often
is, the result of wild and ill-considered words, but the Code does not require proof from
the words themselves of any intention to produce such a result, and their Lordships are
unable to import words into Section 330 which would be necessary to support the
appellant's argument.

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 The submission that there must be some intrinsic evidence of intention, outside the words
themselves, before seditious intention can exist, must also fail, and for the same reason. If
the words are seditious by reason of their expression of a seditious intention as defined in
the section the seditious intention appears without any intrinsic evidence. The Legislature
of the Colony might have defined ' seditious words' by reference to an intention proved
by evidence of other words or acts. It is sufficient to say they have not done so."

In the argument before their Lordships in this case it had been contended by counsel for
the appellant that the prosecution could not succeed unless the words complained of were
themselves of such a nature as to be likely to incite to violence and unless there was
positive intrinsic evidence of seditious intention. In dealing with this contention their
Lordships said (p. 239) :

The foundation for these submissions was sought in the summing up by Cave J. in Reg. v.
Burns and Ors. (1886) 16 Cox 355 quoted at length in Russell on Crimes, 9th ed., vol. i,
pp. 89-96. Reference was also made to a number of cases on the law of sedition in
English and Scottish Courts, which, it was said, supported the statement of the law by
Cave J. Their Lordships throw no doubt upon the authority of these decisions, and if this
was a case arising in this country, they would feel it their duty to examine the decisions in
order to test the submissions on behalf of the appellant. The present case, however, arose
in the Gold Coast Colony.

After referring to the fact that there was a close correspondence on some points between
the terms of the section in the Code and the statement of the English law of sedition by
Stephen J. in the Digest of Criminal Law, 7th ed., Articles 123-126, quoted with approval
by Cave J. in his summing-up in Reg. v. Burns, their Lordships said (p. 240):

The fact remains, however, that it is in the Criminal Code of the Gold Coast Colony, and
not in English or Scottish cases, that the law of sedition for the Colony is to be found.

If we were to apply these principles to the case before us the accused's act in printing,
publishing and distributing the leaflet would, in my opinion, amount to an offence under
Rule 38. I agree with the learned Magistrate that the leaflet contains no words of actual
incitement to violence, nor does it contain any words which would create a reasonable
anticipation of likelihood of violence. But there are undoubtedly passages in the leaflet
which hold up the Government to hatred or contempt by attributing to it various evils and
misfortunes suffered by the people, by imputing to it base motives, and by accusing it of
hostility or indifference to the welfare of the people.

In the judgment of the Federal Court, referred to above, however, a different view has
been taken. Their Lordships have held that public disorder, or the reasonable anticipation
or likelihood of public disorder is the gist of the offence under Rule 34(6)(e) and
under Section 124A, and 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. Again in
another passage in the judgment their Lordships say (p. 51) :

There is an English saying that hard words break no bones; and the wisdom of the
common law has long refused to regard as actionable any words which, though strictly

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and literally defamatory, would be regarded by all reasonable men as no more than mere
vulgar abuse. Abusive language, even when used about a Government, is not necessarily
sedition, and there are certain words and phrases which have so long become the stock in
trade of the demagogue as almost to have lost all real meaning... But we cannot regard the
speech, taken as a whole, as inciting those who heard it, even though they cried " shame,
shame " at intervals, to attempt by violence or by public disorder to subvert the
Government for the time being established by law in Bengal or elsewhere in India.

Although in the report of the case heard by the Federal Court the judgments of the Privy
Council, referred to by me above, have not been mentioned, either in the arguments or in
the judgment of their Lordships, I presume that they were present to their minds, and in
spite of this their Lordships have taken a different view holding that incitement to
violence was the gist of the offence and mere abuse would not be enough.

. The learned Advocate General asks us to hold that the view taken by the Federal Court
is in conflict with the view expressed by the Privy Council on more than one occasion
and is not therefore binding on us. I am not prepared to do so. Under Section 212 of the
Government of India Act the decisions of the Federal Court are binding on us. The Privy
Council decision in Tilak's case is more than forty-five years old, and that in Mrs.
Besant's case twenty-three years old, and both of them do not deal with the Defence of
India Rules with which we are concerned in this case; and although the decision in
Wallace Johnson's case is a very recent one, that again is a decision on an entirely
different Act and in a case arising in a different part of the Empire. The decision; of the
Federal Court is on the very rule (34(6)), which we are asked to interpret, and was given
after full consideration of the changes in the law of sedition which have taken place in the
course of time. Although in the absence of the decision of the Federal Court I would have
had no hesitation in holding that the Magistrate's view in this case was wrong, I am not
prepared to say, as the learned Advocate General wants us to, that the decision of the
Federal Court is not binding on us. The accused had also been charged with having
committed a prejudicial act within the meaning of Rule 34 (6)(g), that is by doing an act
which was intended or likely to cause fear or alarm to the public or to any section of the
public. The learned Magistrate has acquitted the accused on that charge also. The learned
Advocate General has stated before us that the object of the Government appeal was to
get the question of the proper interpretation to be put upon Rule 34(6)(e) decided and that
he does not press the charge under Rule 34(6)(g).

The appeal must therefore be dismissed.

Weston, J.

And later after setting out the definition of ' seditious intention ' (p. 240):-

Nowhere in the section is there anything to support the view that incitement to violence is
a necessary ingredient of the crime of sedition. Violence may well be, and no doubt often
is, the result of wild and ill-considered words, but the Code does not require proof from
the words themselves of any intention to produce such a result.

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No reference appears to these decisions in the judgment of the Federal Court in
Majumdar's case as reported.

The learned Advocate General, while conceding that under Section 212 of the
Government of India Act the law declared by the Federal Court is binding upon us, points
Out that under the same section the law declared by any judgment of the Privy Council is
binding upon us. He claims that when conflict exists, as he says it exists on the meaning
of sedition, between the law declared by the Federal Court and by the Privy Council, it is
the decision of the Privy Council, to which in certain circumstances appeal lies from the
Federal Court, by which we should consider ourselves bound.

I can see neither advantage nor propriety in embarking upon a critical comparison of the
decision of the Federal Court with those of the Privy Council. If these decisions are at
variance, resolution of the conflict lies with one or other of those tribunals. Whereas here
the latest pronouncement is that of the Federal Court, and this pronouncement is exactly
in point on the facts of the present case, I think our duty lies in following this
pronouncement.

I think therefore the Magistrate was right in his conclusion and that the appeal must be
dismissed.

The learned Advocate General has asked us to certify for the purpose of Section 205 of
the Government of India Act that the case does not involve a substantial question of law
as to he interpretation of the Government of India Act or any order in Council made
thereunder. We certify that the case does not involve any such question.

Analysis

Lawfulness of Section 124A alongside Section 505 of the IPC came up for thought under
the steady gaze of Supreme Court for the situation of Kedar Nath Singh v. Territory of
Bihar, 1962 the Court had held, "it is just when the words, composed or spoken, and so
on, which have the noxious inclination or expectation of making public issue or unsettling
influence of the rule of law, that the law steps in to forestall such exercises in light of a
legitimate concern for public request."

It had been reasoned that Section 124A should find some kind of harmony between
person central right and the interest of public request. In the background of legitimate
position adumbrated over, the discussion contained in the sound cut, would not comprise
any of the offenses asserted against the solicitor. The Bench noticed: "There is no
material to show any criminal connivance between the solicitor and Nissar Ahmed Khan
to submit rebellion or earlier show or accord to submit the offenses with which both have
been charged by the police."

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 Without a doubt, the solicitor had belittled the Indian Forces and praised the military of
Khan, which bring into scorn the Government set up by law in India, yet except if the
discussion had the propensity or expectation of making public problem or aggravation of
public harmony by instigation to an offense, the equivalent would not be subversion to
draw in the materialness of Section 124A or besides Section 153A or 153B IPC.

Regardless of whether FIR can be enrolled for commission of offenses under Section
124A, 153A, 153B, 505(2) and 120-B IPC without earlier authorization of the skillful
authority as conceived in Section 196 of the Code of Criminal Procedure? From a
scrutiny of Section 196(1), it very well may be unfolded that the offenses culpable under
Area 124A and Section 153A of the IPC couldn't be taken perception of by the Court
besides with past assent of the Central Government or of the State Government. It is,
hence, clear that,

The bar made by the arrangements of Section 196 CrPC was against taking of awareness
by the Court and there was no bar against enrollment of FIR or examination by the
police if data got by the police unveils commission of cognizable offense.

In the moment case every one of the offenses, with which the candidate had been
charged, were cognizable. It was, subsequently, all around settled and past any pale of
uncertainty that the arrangements of Area 154 CrPC were not constrained by the
arrangements of Section 196 and both work at various marks of time and at various
phases of a criminal case.