1. Mr. C.R. Das.-A portion of the order, viz., " andthe officers of the said Government recruited in England" is not inaccordance with sec. 4 under which the order is made. The section refers to aclass in British India. The officers referred to in the order may or may not bein India. So the class set out is either narrower or wider than the classstated in sec. 4, cl. (c), and in passing this order therefore, so far as thatportion is concerned, the Government of Bengal has not complied with theprovisions of sec. 4, cl. (c).

Authored By : Mookerjee, J.G. Wooddroffe, Ernest EdwardFletcher, Mookerjee, J.G. Wooddroffe, Mookerjee, J.G. Wooddroffe, Mookerjee,Ernest Edward Fletcher, Ernest Edward Fletcher, J.G. Wooddroffe, J.G.Wooddroffe, Mookerjee, Ernest Edward Fletcher

Mookerjee, J.

The order may be set aside on the ground that the words arenot of the nature described in see. 4 (1), therefore the Court is bound toexamine and determine further, irrespective of what the Government order maysay, whether the words used are of the nature described in sec. 4 (1).]

2. Mr. Das - What has been, described in the order is notprovided for in the section and if is the order I ask your Lordships to setaside. Secs. 17 and 19 have to he taken together. If your Lordships leave outthe order altogether and merely consider whether the words did or did not comeunder sec. 4 (1) that would not he correct.

3. The law which is contained in sec. 4 (1) is exactly thesame as is the law in sec. 124A of the Indian Penal Code and is the same asEnglish law.

4. The language of the two sections are practicallyidentical. If yon leave out the clause " any class of His Majestyssubjects in British India," the rest of the section is the same as sec.124A. The three explanation are taken bodily from there, the only differencebeing that the word "disapproval" occurs in sec. 4, Expln. II,whereas the word "disapprobation" occurs in sec 124A, Expln. II.Their Lordships of the Privy Council in Besant v. Advocate-General of Madras(2) 35 T.L.R. 500 : s.c. 23 C.W.N. 986 (1919) say "sec. 124A, Penal Code,has been the subject of careful consideration in the case of Queen-Empress v.Tilak I.L.R. 22 Bom. 112 (1897). these judgments are of considerable assistancetoward the consideration of sec. 4." This shows that they are practicallythe same thing, although the language is not precisely the same.

5. It is clear from the words of the see. 4 that thequestion of intention is material. It is not possible to consider the words"attempt to excite" (which occur in see. 4, Expln. II), withoutconsidering the question of intent. In Besant v. Emperor I.I.R. 39 Mad. 1085(1916)itis held that see. 4, Expln. II, requires that the writer must intend to excitehatred, contempt or disaffection if his writings are to be brought within cl.c. [MOOKERJEE, J.--YOU say Expln. II implies intent, but it does not seem torefer to bringing into hatred or contempt a class or section of His Majestyssubjects.]

6. Mr. Das.--I submit, the question of intention arises inthat case also because the Privy Council in Besant v. Advocate-General andCrown Prosecutor of Madras 35 T L. R. 500 : s.c. 23 C.W.N. 986 (1919). had heldthat even without the explanation the question of intention is material fromthe wordings in the section itself, for it says "it is perhaps not easy tosec how Expln. II with its qualifications adds to or detracts from the direct languageof para. c." Their Lordships were considering the question as the ordinarylaw of sedition in which seditious intent is a necessary ingredient. Accordingto their Lordships judgment the question under sec. 1 (c) comes to this : Arethe passages such as to excite or do they disclose an attempt which impliesintent to excite hatred... towards Government or any class of His Majestyssubjects. It is clear from this that their Lordships are not thinking of theexplanation as the reference to a class is not to be found in the explanation.You can look at it from another point of view, if to repeal a particularmeasure is my primary intention and if in doing that I have to attack andspecially point out the people who are dealing with the Government, properlysneaking that would be a class, but I am entitled to protection because what Isay is put forward merely as ground for my asking for a radical change in thesystem of administration, and therefore I had no seditious intent.

7. Their Lordships again say " in judging the questionof intent...." thereby meaning that question of intent has got to bejudged. Tendency alone is not sufficient without there being seditious intent.The very use of the word "tendency" shows what is aimed at is thementality of the thing. When you use the word " tendency " you arelooking at the effect which may be produced in other peoples minds and youalso consider the intention.

J.G. Wooddroffe, J.

8. We take your contention to he that if the Court comes tothe conclusion that there was no seditious intent, then the fact that thearticles had the tendency mentioned in the Section would not he sufficient.

Mr. Das.-Yes.

9. Mr. Das--Seditious intent defined in Art. 93, StephensDigest, in the same way as the offence of sedition in sec. 124A. The secondparagraph of the articles tells you what is not sedition and these are thethings which form part of the Explns. II and III to sec. 124A of the IndianPenal Code and Expln. II, see. I. of the Press Act. It now follows that, evenfor the purpose of the Press Act, the proprietors of any paper cannot be saidto have been guilty of sedition unless there is Seditious intent. The statementin Stephens Digest has been adopted by eminent Judges as sound principle.

10. Mr. Das referred to Halsburys Laws of England, Vol. IX,p. 463, see. 909, p. 460, Fraser on Libel, 5th Edn., p. 334, Russel on Crimes,Vol. I (pp. 302-310, Reg. v. Sullivan 11 Cox. Cr. C 44 (1863). and Reg. v. Burn16 Cox. Cr. C.355 (1886).

11. Mr. Das.- As to the method of construction of thearticles, I submit, your Lordships should take them as a whole and shouldattach no importance to isolated passages or instances of harsh or stronglanguage. You must read the articles in a fair, generous and liberal spirit, andalso you should look to them from the view of the actual politics of the day.Your Lordships cannot expect the accuracy and the precision of a lawyer or aman of science in the writings, of journalist. Your Lordships will alsoconsider the persons or class of persons who read the Amrita Bazar Patrika andhaving considered these, questions, it is for your Lordships to say whetherthey are or are not of the nature such as described in sec. 4 (c).

12. Mr. Das referred to Reg. v. Burn 16 Cox. Cr. C. 355 (1886),R. v. Aldred 22 Cox. Cr. C. 1 (1909), Reg. v. M Hugh [1901] 2 I.R. 569 at p.585, Queen-Empress v. Tilak I. L. R. 22 Bom 112 at p. 142 (1897), ManomohonGhosh v. Empress (21) and Besant v. Advocate-General of Madras 35 T.L.R. 500 :s.c. 28 C.W.N. 986 (1919). on the question of construction of the articles.

13. Mr. Das.--All these that I have submitted go to showthat your Lordships will have to go into the evidence and I summarise the headsof evidence on which I intend to rely. They are--

(1) General policy of the paper,

(2) Documentary evidence of (a) different charters, (b)proclamations, (c) official despatches, (d) statements made by Ministers of theCrown from 1833 to the present day,

(3) Documentary evidence of different reforms proposed by theGovernment from time to time but defeated by the activity of Governmentofficials, e.g., Ilbert Bill, Minto-Morley Reforms,

(4) Industrial Commission Report to show how industries werenot allowed to be developed by the officials and these were sacrificed for theinterest of Manchester,

(5) Public Services Commission Report,

(6) Present Reform Scheme--What it is and how it is soughtto be killed by the officials here,

(7) Illustration of the practical independence of adependency. In our constitution the responsibility of this Government is toParliament through Secretary of State for India, but in reality Parliament hasnot exercised any control and the officials are not responsible, to anybody,

(8) Documentary and oral evidence as to state of publicfeeling and of events which have happened in the Punjab,

(9) Oral evidence as to (i) effect of these articles on thepeople, (ii) class of persons who read the Amrita Bazar Patrika.

14. Mr. Das then analysed the first, article under thefollowing heads :-

(a) Compact between England and India that England shouldgovern India on righteous principles, i.e., as equals.

(b) Reference to Parliamentary Statutes and officialdespatches in proof of that.

(c) Is India governed by England It answers the question inthe negative.

(d) The system of Government is not for the good of thecountry and then it proceeds to give reasons :--

(i) Those allowed to govern look after themselves.

(ii) It is a kind of lease to them.

(iii) Comparison with leases to indigo planters.

(iv) Government so conducted is despotic, un-British andbarbarous.

(v) Comparison with Japan.

(e) Result is seething discontent.

(f) This would not have happened if England directly ruledIndia.

(g) Therefore the present mode of administration must beradically changed.

Ernest Edward Fletcher, J.

15. What is meant by measures in Expln. II They are primofacie "legislative measures."

16. Mr. Das--That presents no difficulty to my case. Thesystem of administration is under the Government of India Act and my commentsare in connection with contemplated change. I am asking for it for I cannot getany reform unless by an act of Parliament Government of India Act is repealedor amended.

Mookerjee, J.

17. What is the difference between measures andadministrative actions

18. Mr. Das.--Measure there means something which ispermanent that which has continuous effect and therefore there is room foralteration, but an administrative action is an action which has done itseffects.

J.G. Wooddroffe, J.

19. We should like to hear the Advocate-General whetherevidence is admissible or not.

20. Advocate-General.--The act has no relation to seditionper se. The act was passed for a special purpose, namely, better control of thepress. Secondly, the governing words of sec. 4, namely, " which are likelyor may have a tendency" are not found in the Penal Code. Then these wordsexclude intention. Expln. II deals with measures of Government which meanlegislative measures and acts of Government. If on a fair interpretation of thearticles your Lordships are of opinion that they are comments expressingdisapproval of measures of Government, then the question is whether it excitesor attempts to excite hatred, etc. If it does not excite, then there is nooffence, if it does not attempt to excite, then also no offence. If it excitesthen the matter is concluded--it is an offence. If it attempts to excite, thenthe question of intention comes in. But the framers of the act never intendedthat evidence other than that contemplated in sec. 20 should be given.

Mookerjee, J.

21. Sec. 20 deals with newspapers. Sec. 4 has a wider scope,it deals with newspapers, books or other documents containing any words, signsor visible representations. Now, suppose the question arose with reference to amatter contained in a book or document and that it had reference to a sign orvisible representation and the question as to the meaning of that sign, thenwhat would happen.]

22. Advocate-General.--I think the Court might very properlycall evidence as to the meaning of that.

J.G. Wooddroffe, J.

23. If intention is not material it might be argued that theapplicant might produce evidence under sec. 20 for the purpose of the nature ortendency.]

24. Advocate-General.--I submit that sec. 20 enables theGovernment only to give evidence and not the applicant.

Mookerjee, J.

25. The applicant can say that I put in a dozen others whichclearly negative what they say. Would it not be open to the applicant to put inother issues of the paper to contradict evidence Nature or tendency of wordsis the matter to be proved. The Court has to decide between two conflictingcontentions.]

26. Advocate-General.--Evidence can only be given in aid ofthe proof of the nature or tendency, but not to disprove the nature ortendency.

27. The first article is neither a comment on measures ofGovernment nor of the administrative or other actions of the Government.

28. It is an attack on a class and on Government. It comesunder sec. 4 (c) and not under Expln. II.

29. Mr. Das replied.--Apart from Expln. II the actiondescribes something which requires seditious intent. I draw your attention tothe word "purpose" in sec. 4. Purpose of what The purpose is ofprinting or publishing something which is likely or may have a tendencydirectly or indirectly to result in say a, b, or c. Purpose means intent, itconnotes some kind of mentality.

Ernest Edward Fletcher, J.

30. The word "purpose", has no reference toprinting press.

31. Mr. Das.--But the printing press does not use itself forthat purpose. It is used by somebody for a purpose. The purpose must be thepurpose of somebody else. The words likely or may have a tendency havebeen taken from decided cases which had decided that the seditious intent, isnecessary. Sec. 20 only deals with such evidence as is not admissible under thegeneral law. Under sec. 20 the newspaper itself is regarded as an organicentity, whereas under sec. 14, Evidence Act, it is not. Sec. 20 is a statutoryenactment which enables me to give evidence as much as it entitles theprosecution to give evidence. The only question is whether sec. 20 was intendedto shut out evidence which may be admissible under the Evidence Act. I submitthere is no bar by reason of sec. 20. If there is the question of intent thenevidence is admissible.

Ernest Edward Fletcher, J.

32. What is the evidence that can be relevant, if thequestion of intention is not relevant]

33. Mr. Das.--I shall claim to put in evidence as to time,place, surrounding circumstances and occasion to show that under thecircumstances they are not likely to have that tendency. Evidence as to generalpolicy of the paper, and to sources as to the meaning of the words used wouldalso be admissible.

J.G. Wooddroffe, J.

34. Have you got any case in which there was evidence as tothe state of feeling in the country ]

35. Mr. Das.--I find from the Bangabashi case [Queen-Empressv. Jogendra Chandra Bose (22)] that Mr. Jackson was allowed to (22) I L. R. 19Cal. 35 (1891).cross-examine prosecution witnesses to elicit the state offeeling and so on. I submit that question of intent, is material and evidenceis admissible.

36. Here the Court intimated that evidence upon the questionof intention was inadmissible, and so far as evidence by sec. 20 was concernedit would be considered when tendered.

37. The following issues of the Amrita Bazar Patrika weretendered and they were all rejected :--

15th February 1917, 7th April 1917, 18th April 1917, 24thMay 1917, 4th June 1917, 25th September 1917, 27th September 1917, 21st August1918. 23rd August 1918, 16th August 1918, 8th January 1919, 10th January 1919,18th January 1919, 9th February 1919, 26th March 1919, 10th July 1917, 13thJuly 1919, 14th July 1917, 3rd August 1919, 1st, April 1919, 2nd April 1919,4th April 1919, 7th April 1919, 8th April 1919, 9th April 1919, 10th April1919, 11th and 12th April 1919, 23rd, 24th, 26th, 27th, 28th, 29th and 30th May1919, 7th November 1918, 15th June 1919, 24th August 1917, 14th December 1911.

38. The Advocate-General was not called upon to reply.C.A.V.

J.G. Wooddroffe, J.

39. This is an application by the Keeper of the Amrita BazarPatrika Press and of the Amrita Bazar Patrika Co., Ltd., under sec. 17 of thePress Act I of 1910, asking that this Court may, under sec. 19, set aside theorder of forfeiture which was passed by the Government of Bengal in respect andin consequence of two articles published in the Amrita Bazar Patrika newspaperon the 10th and 12th April 1919, which are reproduced as annexures to thepetition. The grounds of the forfeiture are that the first article was, in theopinion of the Governor in Council, likely and had a tendency, directly orindirectly, by influence, suggestion, implication or otherwise, to bring intohatred and contempt the Government established by law in India, and theofficers of the said Government recruited in England and to excite disaffectiontowards the said Government, and that the second was likely and had a tendency,directly or indirectly, by inference, suggestion, implication, or otherwise, tobring into hatred the Government established in British India and to excitedisaffection towards the said Government. The Government therefore acted underthe provisions of sec. 4, cl. (c).

40. I will deal at once with a contention of Mr. C.R. Das,Counsel for the Applicant, that the order was bad in so far as it does notstate that the officers of the said Government recruited in England "were in India. It would have been more formally correct if this had beenexpressly stated. It is however obvious that the reference is to officers inIndia and not as suggested to officers in Mesopotamia, England or elsewhere.Further, whatever the order may say, we have (as pointed out by my brotherMookerjee, J., during the argument), in disposing of the application, to seewhether the article is not obnoxious to the provisions of sec. 4 which include,amongst others, attacks upon any class or section of His Majestys subjects in BritishIndia. Further again under sec. 22 of the Press Act the only ground upon whichthe Court can set aside a forfeiture is that the matter which is the subject ofit does not contain words of the nature described in sec. 4. sub-sec. (1). Noobjection can be taken against the forfeiture itself, but it may be set asideunder sec 19. I hold, therefore, that this objection fails.

41. The substantial question is whether the articles oreither of them fall within the provisions of sec. 4, cl. (c), or are excludedtherefrom, on the ground that they are comments expressing disapproval of themeasures of Government with a view to obtain their alteration by lawful means,or of the administrative or other action of the Government established inBritish India without exciting or attempting to excite hatred, contempt ordisaffection towards the said Government, or hatred and contempt towards aclass or section of His Majestys subjects in British India, viz., the officersof the said Government in India recruited in England.

42. No one I think reading these articles could come to theconclusion that they were not likely and had not a tendency to excite hatredand contempt towards the Government and class against whom they were directed.But it is urged for the Applicant that even if, standing by themselves, thearticles have this effect, it is open to the Applicant to show and he offers byevidence to show that they were written without seditious intent. He then saysthat if he can show this alleged absence of seditious intent the forfeituremust be set aside. The argument involves the following considerations :--

43. Is the question of intention immaterial in any, or is itmaterial in every, case coming under sec. 4 If the answer is in the negativeto both propositions, then as regards what provision of sec. 4 is intention tobe investigated, and do the articles in question come under that provision ornot

44. If I were dealing with the matter as res integra andwithout reference to two of the decisions to which I later refer, I should havebeen disposed to hold that the intention of the legislature was that the Courtshould look at the articles and say whether the meaning of them was such thatthey were likely or had a tendency to have the effect mentioned in cls. (a) to(f) of sec. 4, and that, upon a consideration of this Question, the enquiryinto what was the intention of the writer or publisher was not material, thoughin judging the nature or tendency of the words used, evidence of the particularcharacter mentioned in sec. 20 might, if it were necessary, be admissible.

45. Here I may interpose to point out that the word intention is often loosely used. Thus we hear the expression "intentionof a document. A document cannot have an intention nor a motive nor can it"attempt " to do anything. Intention, motive, attempt have referenceto persons and denote psychological facts of which a document may be evidence.The so-called " intention of a document " as distinguished from thestate of mind of its author is nothing but its meaning. So far as the documentis concerned, its so-called "intention" is its meaning. The PressAct in my opinion was framed to enable the Government and the Court to dealwith the meaning of documents and not with the intentions of their authors andpublishers. It is the criminal law of sedition which deals with the latter. Soon an application to set aside a forfeiture it was intended, I believe, thatthe Court should (apart from sec. 20) look at the document and ascertain on a fairreading what was its meaning and should then say whether the words used, whenproperly understood, were of the nature or tendency mentioned in cls. (a) to(f) of sec. 4. If it is not shown that they are not of this character then theforfeiture is upheld. If, however, on the true construction of a document theCourt is of opinion that it is a disapproving comment on the measures oractions of Government or the administration of justice, which is not likely andhas no tendency to excite the hatred, contempt on disaffection referred to incl. (c), that is, if it is a temperate and allowable criticism of such measuresor actions then the forfeiture is to be set aside. The Court in every case is;in this view, concerned with the meaning of the writing and not with theintentions of its writer. Intention is in this view the subject of criminalproceedings for direct sedition against persons under sec. 124A or indirectsedition under sec. 153A of the Penal Code and not of forfeiture of securitygiven and document issued by a printing press.

46. It is true, however, that the wording of Expln. II tosee. 4 does raise a difficulty, for it uses words winch have been relied on,and have been held, to show that the question of intention is, in certaincases, material; that is, the Applicant may in the case of disapprovingcomments on the measures (which in my opinion means legislative measures) oradministrative or other action of Government, or the administration of justice,show that in the making of such comments there was no attempt (which impliesintention) to excite the hatred, contempt or disaffection mentioned in cl. (c)of the section. Not improbably, the wording of this explanation is due to careless drafting, the draughtsman overlooking the fact that he was importing intoa section dealing with documents of a particular nature or tendency anexplanation taken from sec. 124A of the Penal Code which deals with an offenceby individuals for the establishment of which a seditious intention isnecessary. This was pointed out by Abdur Rahim, J., Besant v. Emperor L.L.R. 39Mad. 1085 at p. 1120 (1916)., in his observation that the explanation importedthe question of intention, while cl. (c) of sec. 4 to which the explanation isattached is not concerned with the intention of the writer of the wordscharged. It may be as was argued on behalf of the Crown in Besants case (1)that " attempting to incite " is a loosely worded equivalent, of"tending to excite," but this construction was overruled and we must,as Abdur Rahim, J., says, read Expln. II as we find it.

47. However this be, this view of the section is no longeropen, for it has been held by the Madras High Court in the case cited thatwhilst intention is immaterial so far as cls. (a) to (f) of sec. 14 are concerned,it is material if the case falls within Expln.. II, when the Court is judgingwhether there was an attempt to excite hatred sad contempt by comments comingunder that section. It follows, therefore, that intention is only material ifwe have to deal with comments on the measures or actions of Government or theadministration of justice, and it is not otherwise material. These commentsagain are not protected if they in fact excite or attempt to excite hatred,contempt and disaffection, but are protected if the disapproving comments onthe measures of Government are made with a view to obtain their alteration bylawful means, or if they are made on the actions of Government oradministration of justice, and if in both cases there is no attempt to excitehatred, contempt or disaffection. As "attempt " implies intention, anenquiry Whether there has or has not been such an attempt involves, it has beenheld, a consideration of the question of intention.

48. This view must be taken to have been approved by thePrivy Council which in the appeal from the decision of the Madras High Courtobserved as follows :--" Upon careful perusal of the several judgmentstheir Lordships find that weight has been properly given to the severalportions of the section. They do not find that the section has beenmisconstrued." [Mrs. Annie Besant v. The Advocate-General of theGovernment of Madras 35 T. L. R. 500 s c." 23 C.W.N. 986 (1919).].

49. Mr. C.R. Das has argued that the Privy Council overruledthe distinction which the Madras High Court drew between the operative part ofsec. 4 and the explanation to cl. (c). I am unable to accept this contention.It is true that their Lordships say that it is not easy to see how Expln. IIadds to, or detracts from, the direct language of cl. (c), but it does nottherefore follow that the question of intention which is material in theparticular cases mentioned in the explanation is thereby made material asregards either other cases under cl. (c), or all other clauses of sec. 4. I think,however, a legitimate argument may be raised as regards the subsequent passageof the judgment of the Judicial Committee which commences with " Insubstance the question under cl. (c) of sec. 4 " and which is relied on bythe applicant to show that the Privy Council did not draw any distinctionbetween an attack on the Government as such and comments on its measures andactions, and that it treated an attack on a class as involving intention thoughno mention is made of a class in Expln. II, and though, as the JudicialCommittee later point out, the words in cl. (c) which refer to the hatred orcontempt of a class or section are not limited by Expln. II. On the other handthe judgment of the Madras High Court, which is affirmed, clearly holds (p.1120) that sec. 4 allows less scope to criticisms of the measures ofGovernment, and that (as already stated) the operative portion of sec. 4 doesnot make the intention of the writer material when considering whether thewords are not of the nature described in sec. 4. Attacks on a class or sectionare not mentioned in Expln. II, and the Judicial Committee point out that thewords in cl. (c) which refer to the hatred or contempt of a class or sectionare not limited by Expln. II. Finally they say that "the section has notbeen misconstrued" by the High Court of Madras which very clearlydistinguishes between the cases where intention is, and is not, material. Mr.C.R. Das has suggested that the Judicial Committee in making the lastobservation was referring to the manner in which the Madras High Court hadapplied the section, but this is not so, as the Judicial Committee then go onto deal with the application in detail of the principles of the law to thelanguage of the various articles then before the Court.

50. These observations are sufficient to dispose of theargument that the question of seditious intent is material in every case comingunder cls. (a) to (f) of the body of the section. But as the point is ofimportance and has been argued at great length I will further examine it.

51. Put in the most condensed form, the contention of theApplicants Counsel is, that before the Press Act can be pot into operation inany case, it must be shown that the offence of sedition has been committed, orto put the matter more accurately with reference to the terms of secs. 17 and19, the forfeiture must be set aside if the Applicant shows that no seditionhas been committed through the matter which is the ground of the forfeiture. Inthis view of the case the Act would mean that the Government may judge whetherthe offence of sedition has been committed and if it thinks that there has beensuch an offence, then it may make an order of forfeiture. Then the Applicantmay come in and show that, there has-been no sedition, and the hearing of theapplication would take the form of a criminal trial, with this difference thatthe burden of proving that an offence had been committed would lie not on theCrown, but on the party whose property was forfeited, and the penalty would notbe imprisonment of any person, but a forfeiture of security and copies of thenewspaper. In such a trial all evidence would be admissible which wasadmissible in a criminal trial.

52. I do not think that such was the intention of thelegislature.

53. It may be said that proceedings under the Press Actpartake of a criminal character in so far as they involve forfeiture. It mayalso be that the matter forfeited might make the party responsible for it,liable to a criminal charge of sedition or charge under sec. 153A of the PenalCode; but the Act itself was not enacted for the punishment of such offences,but as its title and preamble shows for the better control of the Press. It isessentially a preventive measure : a measure with the view to prevent crime,that, is crime imperiling the existence of the State, the safety of itsofficers, public order and the like. It is to be observed that under see. 21the procedure, until the framing of Rules by the High Court, is ordered to bethat of the practice of the Court in proceedings other than suits and appeals.The only evidence for which direct provision is made by the Act is theadmission of other copies of the newspaper in aid of the proof of the natureand tendency (sec. 20) and sec. 21 states that nothing contained in the Actshall be deemed to prevent any person from being prosecuted under any other lawfor any act or omission which constitutes an offence under this Act. An offenceunder this Act is not sedition as such, but the printing or publishing ofmatter of the nature and tendency mentioned in sec. 4, which attracts to itselfthe penalty of forfeiture. If the Crown is desirous in any case of proceedingagainst any party for sedition it will doubt less do so under the provisions ofthe Penal Code and according to the ordinary Criminal Procedure. Something maybe said for Mr. C. B. Dass contention on the ground of thoroughness, for itmay be argued either that intention is material in every case or in no case butthe other circumstances I have mentioned are in my opinion against it and thequestion is concluded by precedent.

54. We must then, in my opinion, follow the decision as tothe interpretation of the section given by the Madras High Court and affirmed,as I understand it, by the Judicial Committee.

55. The question then is, are the articles before us merelydisapproving comments on the measures or actions of Government If they arenot. that, that is, if they are not such comments at all, or if, besides beingin part such comments, they are also an attack on the Government itself, or ona class, then in so far as they are not such comments no question of intentionarises. For it is to be observed that a writing may in part constitute anattack on the Government itself and in another part be a comment on itsmeasures and actions. If it is the former, and of the nature specified in cl.(c) or if it is an attack on a class, then it is not covered by theExplanation, which alone, according to the Madras decision, imports theconsideration of intention.

56. The first article in the order of forfeiture is allegedto be likely or to have a tendency to bring into hatred and contempt theGovernment established by law in British India and the officers of the saidGovernment recruited in England and to excite disaffection against the saidGovernment. I am unable to hold that this article does not contain words of thenature described seeing that it alleges, amongst other things, that England inbreach of her pledges farmed this country out to English officers, who governthe people of India according to their own sweet will, on principles which areabsolutely despotic and some of them un-British and barbarous, who servethemselves first and then only their mother country and increase their own paylooking down upon the people as mere human sheep, created only to minister totheir (the officers) own comforts and material prosperity, the officersfattening themselves out of the country, whilst the Indians decay; the officersagain governing India as their own property in such a way that, from being oneof the richest of countries; it has become the permanent abode of famine,plague and malaria.

57. The second article is alleged in the order of forfeitureto be likely and to have the tendency to bring into haired, and to excitedisaffection towards the Government. This article may be said to be in part acomment on the action of Government with respect to the proceedings taken withreference to the recent riots and there is a reference to the so-called RowlattAct which has robbed the people of many of the elementary rights of humanbeings." But it is more than this, as it is an attack upon the Governmentitself which is described as a " Common Enemy." It suggests that thepeople were provoked to violence, that on some pretence or another the policepicked up a quarrel, that the people were shot at like eats and dogs. Thearticle then speaks of unprovoked aggression and says we believe theGovernment of India will treat this awful incident with the same apathy as theyhave done with regard to the outrage at Delhi." Towards its close it saysthat as a result of what is said in the article the masses have at last beenroused to realise that the reign of law is gone and people can be shot down atthe sweet will of the Executive." I am unable to hold that this articledoes not contain words which are of the nature above described.

58. On this part of the case dealing with "nature ortendency" (corresponding to the words "are likely or may have atendency" in sec. 4) certain evidence was tendered under sec. 20 of theAct. It may be a question whether the provisions of that section are equallyavailable to the Crown and the accused. It speaks only of evidence in aid ofthe proof, and not disproof, of the nature and tendency of the words complainedof. But this contention was overruled by the Madras High Court, and in theabsence of any words of direct exclusion of evidence, it is fairer to assumethat if an article is ambiguous or doubtful and therefore the Crown requires tosupplement it by the evidence of other articles from the same newspaper, theperson against whom the order of forfeiture is passed should have, the right togive evidence in rebuttal. I am, however, of opinion that the section onlyapplies where, if the article stood alone, there may be doubt or ambiguity asto the character, nature or tendency of the words used, and not when themeaning of the article is apparent on its face, as is the case here.

59. Besides other leading articles in the newspaperextending from the year 1917 to 1919 a number of extracts from the newspaperwere tendered which in my opinion do not in any case come within the scope ofthe section, namely, reports of events from press or private correspondents;proceedings in council, His Excellency the Viceroys speech, the Bishop ofCalcuttas sermon, Mr. Jinnahs (former member of Council) letter on hisresignation, the Bight Honourable Mr. Montagues speech in introducing theReform Bill and on the Mesopotamian Commission, Message of His Majesty theKing-Emperor, letter of resignation of Moulvie Mazurul Huq, dissentient minuteof Sir Sankaran Nair on a Government despatch, a speech of Mr. B. Chakrabartiand the dissentient minute on the Industrial Commission. All such matters we rejected,whether it is claimed that they are admissible under sec. 20 of the Press Actor otherwise. We also rejected (after first fully reading them) the variousleading articles tendered. In my opinion they do not aid in proof of the natureor tendency of the words used which are quite intelligible on their face. Norare they admissible as evidence of policy of the paper, for policy is a matterof intention and for the reasons given such evidence is not admissible. Nor ifthey were admitted, would they, in my opinion, have helped the Plaintiffs caseor affected my judgment as to the nature and tendency of the articles whichhave been selected by the Applicant as supporting his case.

60. The articles tendered are many and lengthy and I giveonly their essential gist. Issues tendered in connection with the firstarticle, the subject of these proceedings, profess the following sentiments:--In the first place there are expressions of loyalty to the Throne sacred asthe symbol of the collective life and of loyalty to the true or Ideal empire,wholly different from the reality, namely, the present British Empire which isthe product of the conscious pursuit of lower ends and a determined effort torepudiate the true ideal of Empire (24th May 1917). At present there is only a"White imperialism," a confederacy of white men for the exploitationof the non-White members of the present Empire (ibid.). Independence is notsought, but Home Rule within the Empire, that is a combination of Nationalfreedom with Imperial subjection. Many passages insist on the fact and this isthe general tenor of the articles as a whole, that the obstacle in the way ofIndian Political well-being is the self-interested hostility of the bureaucracyor Indian Civil Service which one issue (20th January 1919) says means theGovernment of India. All this is the " Psychology of selfishness "(27th September 1917) which the writer says has produced a dangerous discontentin the masses (ibid.). The Viceroy, it is said, has protected the interests ofthe foreign bureaucracy and foreign exploiters (19th February 1919). In oneissue (26th March 1919) it is oven suggested that the Government is provokingsome sort of physical conflict (26th March 1919). The foreign bureaucracy whichgoverns India is striving to retain then powers (3rd August 1917). Thisabsolute power of the alien official must be broken (14th July 1917) in orderthat there may be a transfer of power from the alien bureaucracy to the people.But loyalty to the Crown and the "Ideal Empire" is professed andanything but constitutional methods of agitation are discouraged.

61. There is no allegation in the order of forfeiture ofdisloyalty to His Majesty the King-Emperor. What is alleged is that thearticles are likely, and have a tendency to bring into hatred and contempt theGovernment established by law in British India and to excite disaffectiontowards the said Government, and, as regards the first article, that itcontains words which are likely or have the tendency to bring into hatred andcontempt the officers of the said Government recruited in England. It has beenheld that the words "Government-established by law in India " in sec.4 are not to be construed as indicating only the supremacy of the British Crownin India and the British connection with it, as opposed to independence, Besantv. Emperor I. L R. 39 Mad. 1085 (1016). For the rest the articles tendered donot assist the Applicant, or disprove the alleged nature or tendency of thewords used, the meaning of which is plain on their face. Because on previousoccasions language has been used which was either not obnoxious to the sectionor was, under the circumstances, passed over by the Government, does not in anysense disprove the nature or tendency alleged in this case. What, however, theydo show is that for about two years previous to the first article in question,the paper has been writing against the so-called bureaucracy, which it speaksof as being the Government and which that article has now attacked in terms whichhave led the Government to make the forfeiture, although there was, accordingto one of the previous issues (27th September 1917), a deep, widespread, anddangerous discontent in the masses in this country which should have led thepaper to be careful of what it said and published.

62. Some further articles tendered deal with the recentgrave riots in this country. The "Delhi outrage" is described (2ndApril 1919) as a wanton outrage. It speaks of the enormity of the police actionin shooting unarmed people like sparrows : of the hecatombs in which nativeswere victims, of the resultant disappearance of "natives" from, thearena of their unfortunate "native" land. It points out that theunarmed people of this country are neither Germans nor Turks. Mr. C, EL Dassays as to this that no enquiry was held and that this explains the referenceto the " apathy " of the Government of India in the second article inquestion. An article on the "Delhi Tragedy," 4th April 1919, speaksof grave provocation. The issue, however, of the 11th April 1919 exhorts thepublic to behave with composure which the writer is sure that they will do.There is nothing in all this which disproves the alleged nature and tendency ofthe words of the second article in question. What they do show is that for twoyears the paper has been strongly criticising the so called bureaucracy and fora short time previous to the second article also the action taken as regardsthe recent riots without any intervention by Government. When, however, violentand inflammatory language was used at a time which, owing to the late riots,was one of public danger, then the Government felt itself compelled to takeaction under the Press Act with a view to prevent the spread of furtherdisorder.

63. These findings dispose of the application, but I willnow deal with the case on the assumption that evidence of intention was (asargued for the applicant) relevant and will record and deal with the evidencetendered on his behalf on this part of the case. The argument was that, overand above nature and tendency of the words used, the Court must be satisfiedthat there was a particular seditious intention, otherwise the order offorfeiture must be set aside.

64. Evidence was tendered of "time, place circumstanceand occasion of the article." On this head we were invited to enter intoan extensive historical enquiry from the year 1833 to the present time with aview to show the rights of the Indians as set forth in charters, proclamations,official despatches and statements made by Ministers of the Crown, that fromtime to time various reforms had been proposed by the Government such as LordRipons Local Self-Government Act, and the Minto-Morley proposals, substantialas they left England, which are said to have been defeated or obstructed by theactivity of Government officials in this country. It was proposed to tender thePublic Service and Industrial Commissions reports to show that the developmentof the country had been prevented by Government officials and the industrialinterests of India had been scarified to Manchester. Promises made had thus, itis said, not been allowed to be fulfilled. We were invited to receive evidenceof the questions agitating the mind of the public and of the general "politicalenvironment." Secondly, evidence was offered of the state of the countryand of public feeling. It was argued that evidence, oral and documentary, ofpolitical questions agitating the people and their feelings in general and ofrecent events in the Punjab was relevant to show that it was necessary in theinterests of Government itself that, such an alleged state of things should bebrought to its notice. It was argued that the object being to ventilate agrievance a seditious intention was negatived. Thirdly, evidence was offered ofthe character and description of that part of the public who might be expectedto read the article. Mr. Das proposed to call evidence to show what effect thereading of the articles in question had upon the readers and then to show theclass of persons who read the Amrita Bazar Patrika. These are said to be (andevidence was offered to show it) the politically-minded class amongst educatedpersons who were all engaged in bringing about a lawful change in theadministration, which change had been practically promised. Fourthly, evidenceof the previous general policy of the newspaper. Fifthly, evidence from othersources of the meaning of the whole articles. To explain the articlesapplicants Counsel desired to refer to various legislative enactments,Government resolutions and utterances of Ministers of the Crown and otherstatesmen. Mr. C.R. Das in response to the question of the Court "Whatwere the passages in the articles, the subject of these proceedings, which hesaid that these documents explain " replied that they were tendered toexplain the whole of the articles, and any point made in them, and on therejection of the above-mentioned evidence closed his case.

65. In the first place it is to be observed that the truthof the facts alleged is no answer. Even if there were the compact andpromises alleged, and even if they were broken, and even if this was due to thealleged self-interested hostility of the class to which the first articlerefers, this would be no answer.

66. We must then distinguish between the meaning of anarticle and the intention of its writer. The construction of a document is aquestion of law to be determined by grammar or logic, the primary organs ofinterpretation aided when necessary by evidence to make the words which areused fit the external things to which the words are appropriate [Evidence Act,sec. 92 proviso (6)] and by evidence of the character mentioned in secs. 95-98of the Evidence Act. Where the words of the document are (as in my opinion isthe case here) plain and unambiguous we must look to the document alone.Extrinsic evidence to explain a document is not admissible because not neededin such a case. In my opinion there is no ground in this case for the admissionof explanatory evidence. Passing then to evidence of intention, this should begathered from the language employed. When the meaning of a document has beentruly ascertained, that document itself is evidence of the intention of thewriter. Intention is a psychological fact and can be proved under sec. 14 ofthe Evidence Act when the existence of intention is in issue or relevantprovided that the collateral fact is not too remote. If then intention wasrightly in issue in this case, that is if; for instance, the existence ofintention were, relevant in the case of an attack on a class under cl. (c) ofsec. 4, though under that clause intention is not material, and though theexplanation to that clause which imports intention has no reference to wordsdirected against a class, then speaking generally evidence of intention wouldbe, according to the Madras decision, admissible. Seshagiri Ayyar, J., theresaid,." It is true that in the vast majority of cases the intention mustbe gathered from the language employed, but it is possible to show that whatprimo facie appears objectionable should not be given the meaning attributableto the words employed. The difference is very thin no doubt, but I think thatthe legislature was contemplating in Expln. II the possibility of proof by theperson proceeded against that the intention to create disaffection was not inthe mind of the writer." Besant v Emperor I.L.R 39 Mad 1086 at p. 1152(1916). If, then, it be assumed, for the purpose of this judgment, thatevidence of intention was relevant, then in my opinion such evidence as hasbeen offered to us and tendered would not, if admissible, and in admitted, haveestablished the applicant claim to relief. Let it be assumed (with outadjudging it to be so) that political promises have not been kept, but havebeen thwarted by either the Indian Government or its officials or both, andthat the motive of the writer or writers of the articles was as alleged, tocarry out the reforms said to have been promised, and to change the presentpolitical system, thus putting as end to the power of the Indian Civil Se vice,even then that would not justify the use of language likely or tending tocreate hatred, contempt or disaffection. Whether, notwithstanding suchlikelihood tendency, there was or was not an actual intention to create hatred,contempt or disaffection must be primarily determine upon a perusal of thewritings themselves. As the Judicial Committee say, in judging the questionof intent the publisher must be deemed to intend that which is the naturalresult of the words used." The words used in these articles are in myopinion likely to produce hatred, contempt and disaffection. This must then bepresumed to have been intended until the contrary is shown. If the words upontheir true construction do not show the nature or tendency alleged, then thereis no need to enquire into the existence of seditious intention which the trueconstruction of the words negatives. If on the other hand the words usednaturally clearly and indubitably have such tendency, then it must be presumedthat the publisher intended that which is the natural result of the words usedand no other evidence is (to say the least) likely to rebut the existence ofsuch intention. If, however, the words used have the nature and tendency indoubt, it is not likely that Government action would be taken thereon, but ifit did, it is not likely again that the Court would uphold the forfeiture, orthat it would do so at any rate in the absence of strong evidence of seditiousintent. Once therefore seditious intent is clearly inferred from the languageused, other evidence on the question of actual intention becomes in practice oflittle moment,. As suggested by the passage cited from the judgment ofSeshagiri Ayyar, J., the distinction between intention inferred from thedocument and as otherwise existing is there. However this may be, and dealingwith the particular facts of this case, nothing of the political history andargument and other matter which have been opened to us and offered as evidencein this case would if accepted as evidence have shown that if the existence ofthe particular intention was necessary, that intention was not present. Ifintention is necessary, then I. think it is shown to exist.

67. To sum up :--In my opinion whatever else there is in thearticles we are also dealing with a case outside Expln. II which it has beenheld imports intention. For there is here in both cases an attack on theGovernment itself, and not merely a comment on the measures or actions ofGovernment, and in the first article there is also an attack on a class whichis not covered by Expln. II. An enquiry into intention is therefore notmaterial and it cannot be said that the words used are not of the naturedescribed in sec. 4, sub-sec. (7), cl. (c). If. however, intention werematerial, then some of the evidence tendered is inadmissible and even if allthat was opened to us and proffered in evidence had been admitted, it would nothave rebutted the intention to be gathered from the articles themselves. Thewriter or writers must he deemed to have intended that which is the naturalresult of words used, namely, the hatred, contempt and disaffection alleged.

68. The application therefore must be missed. As I see noreason in this case departing from the usual rule that an unsuccessful partyshall pay the costs, the order will be that the applicant do pay Governmentscosts of these proceedings as of a hearing on Scale No. 2.

Mookerjee, J.

69. On the 10th April 1919. the "Amrita Bazar Patrika"published an article beaded " To Whom does India belong." Two dayslater, the paper published another article headed " Arrest of Mr. Gandhi,mere outrages." On the 15th April, the Governor of Bengal in Council tookaction under sec. 4, sub-sec. (1) the Indian Press Act 1910 and the Keeper ofthe printing press where the paper was printed was thereupon served with anotice in the following terms :--

Whereas it appears to the Governor in Council that theprinting press known as the Amrita Bazar Patrika Press Limited located at Nos.19 and 20, Bagbazar Street, Calcutta, in respect of which security to theamount of Rs. 5,000 has been deposited in accordance with the provisions ofsec. 3 (2) of the Indian Press Act, 1910, has been used for printing and publishingthe issues of the newspaper called the Amrita Bazar Patrika" bearingdate 10th April 1919 and 12th April 1919, and whereas the said issue of thesaid newspaper, dated 10th April 1919, contains an article entitled "ToWhom does India belong" the whole tenor of which article and in particularthe passage from the words " England having acquired India" to thewords "they increased their own pay " are in the opinion of theGovernor in Council likely and have a tendency directly or indirectly by inference,suggestion, implication or otherwise to bring into hatred and contempt theGovernment established by law in British India and the officers of the saidGovernment recruited in England and to excite disaffection towards the saidGovernment and whereas the said issue of the said newspaper, dated 12th April1919, contains an article entitled " Arrest of Mr. Gandhi-- More outrages" the whole tenor of which article and in particular the passage "The masses have at last been roused to realise that the reign of law is goneand people can be shot down at the sweet will of the Executive are in theopinion of the Governor in Council likely and have a tendency directly orindirectly by inference, suggestion, implication or otherwise to bring intohatred the Government, established in British India and excite disaffectiontowards the said Government.

Now therefore take notice that the Governor in Council inpursuance of sec. 4 (2) of the Indian Press Act, 1910, declare the security ofRs. 5,000 deposited in respect of the Amrita Bazar Patrika Press Limited,Calcutta, and all copies of the issues of the newspaper called the "AmritaBazar Patrika having date of 10th April and 12th April 1919 wherever found tobe forfeited to His Majesty.

70. The security thus forfeited had been deposited pursuantto a notice issued on the 29th May 1913 under sec. 3, sub-sec. (2) in respectof an article which appear in the paper on the 12th April 1913. On the 13thJune 1919 the Keeper of the Press applied to this Court to set aside the orderof forfeiture made on the 15th April. The application was heard by a SpecialBench constituted under sec. 18 and we have now to determine the matter incontroversy. Under sec. 19, sub-sec. (1), the High Court is competent to setaside the order of forfeiture on one ground and one ground alone, namely, thatthe words contained in the newspaper in respect of which the order in questionwas made, were not of the nature described in sec. 4, sub-sec. (1). In view ofthe elaborate arguments addressed to the Court, it is necessary to examine thescope of the relevant sections of the Indian Press Act.

71. The preamble states that the provisions were enacted,because it was necessary to provide for the better control of the press, andsec. 1, sub-sec (2) makes it clear that in the opinion of the legislature suchnecessity extended to the whole of British India. Sec. 2 contains theinterpretation clause and defines a newspaper as a periodical work containingpublic news or comments on public news. Sec. 3 provides for the deposit ofsecurity by Keepers of printing presses. The first sub-section refers todeposits to be made at the time of the declaration under sec. 4 of the Pressand Registration of Books Act, 1867. The second sub-section refers to pressesin respect of which a declaration had been made prior to the commencement ofthe Act; in this class of cases, a deposit may be demanded only if it appearsto the Local Government that the press is used for any of the purposesdescribed in sec. 4, sub-sec. (1). It was under this provision that security tothe maximum amount (Rs. 5,000) was exacted from the Amrita Bazar Patrika Pressin 1913. We now come to sec. 4 which invests the Local Government withauthority to declare the security as also copies of the offending newspaperforfeited in certain cases. The section is in these terms:--

(1) Whenever it appears to the Local Government, that anyprinting press in respect of which any security has been deposited as requiredby sec. 3 is used for the purpose of printing or publishing any newspaper, bookor other documents containing any words, signs or visible representations whichare likely or may have a tendency directly or indirectly whether by inference,suggestion, allusion, metaphor, implication or otherwise--

(a) to incite to murder or to any offence under theExplosive Substances Act. 1908, or to any act of violence, or

(b) to seduce any officer, soldier or sailor in the Army orNavy of His Majesty from his allegiance or his duty, or

(c) to bring into haired or contempt His Majesty or theGovernment established by law in British India or the administration of justicein British India or any Native Prince or Chief under the suzerainty of HisMajesty, or any class or section of His Majestys subjects in British India, orto excite disaffection towards His Majesty, or the said Government or any suchPrince or Chief, or

(d) to put any person in fear or to cause annoyance to himand thereby induce him to deliver to any person any property or valuable securityor to do any act which he is not legally, bound to do, or to omit to do any actwhich he is legally entitled to do, or

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

(f) to convey any threat of injury to a public servant, orto any person in whom that public servant is believed to be interested, with aview to inducing that public servant to do any act or to forbear or delay to doany act connected with the exercise of his public functions, the LocalGovernment may, by notice in writing to the Keeper of such printing pressspiting or describing the words, signs or visible representations which in itsopinion are of the nature described above, declare the security deposited inrespect of such press and all copies of such newspaper, book or other documentwherever found to be forfeited to His Majesty.

Explanation I.--In cl. (c) the expression"disaffection" includes disloyalty and all feelings of enmity.

Explanation II. Comments expressing disapproval of themeasures of the Government or of any such Native Prince or Chief as aforesaidwith a view to obtain their alteration by lawful means, or of theadministrative or other action of the Government or of any such Native Princeor Chief or of the administration of justice in British India without excitingor attempting to excite hatred, contempt or disaffection do not come within thescope of cl. (c).

(2) After the expiry of ten days from the date of the issueof a notice under sub-sec. (1), the declaration made in respect of such pressunder sec. 4 of the Press and "Registration of Books Act. 1867, shall bedeemed to he annulled.

72. It is plain that the power to declare the securityforfeited can be exercised only with regard to a press in respect of whichsecurity has been deposited under either of the two sub-sections of sec. 3. Inrespect of such presses, the provisions of the section may be utilised, when itappears to the Local Government that the press is used for the purpose ofprinting or publishing any newspaper, book or other document which contains anywords, signs or visible representations which are likely to produce the effectsmentioned in cls. (a) to (f) or which may have a tendency, directly orindirectly, whether by inference, suggestion, allusion, metaphor, implicationor otherwise (that is. in any other way or by any other process) to produce anyof the effects mentioned in the six clauses. Notwithstanding the able argumentof Mr. Das, I am not convinced that a question of intention at all arises withregard to that portion of sub-sec. (J) of sec. 4 which precedes the sixclauses. A faint attempt was, indeed, made to deduce intention as a materialelement from the use of the word "purpose," but there was obviouslyno force in that contention. The press is used for the purpose of printing andpublication: that clearly does not indicate that intention is a material factorin the determination of the question of the legal effect of the words, signs orvisible representations contained in the newspaper, book or other document.Reliance was next placed upon the expression " tendency," but clearlyintention and tendency are entirely different things. Intention has referenceto the state of the mind of the actor; tendency, on the other hand, hasreference to the possible result of the act. The "tendency" of an actmay, in fact, be exactly the reverse of the result which the actor intendedshould follow from the measure taken by him. Intention is one of the decisive elementsin determining the moral character of an act and is an essential element inmany a criminal offence. The tendency of an act implies that the act may tendto cause a particular result, but may or may not actually lead to that effect.I can discover no solid ground for the contention that the use of the word" tendency " shows that intention is an essential element in thedetermination of the true character of the words, signs or representations. Wehave next to consider the six clauses, but before we proceed to them, we maynote that in the introductory words of this clause, the legislature has usedevery conceivable expression which could widen its scope. Thus, the legislaturewas not, content with the word "likely," but used as an alternativethe expression " may have a tendency, directly or indirectly, whether byinference, suggestion, allusion, metaphor, implication or otherwise." Ofthe six clauses, we are concerned primarily with cl. (c) in the case before us.This clause contemplates five classes of possible effect :--

(i) To bring into hatred or contempt or to excitedisaffection towards His Majesty;

(ii) To bring into hatred or contempt or to excitedisaffection towards the Government established by law in British India;

(iii) To bring into hatred or contempt the administration ofjustice in British India;

(iv) To bring into hatred or contempt or to excitedisaffection towards any Native Prince or Chief under the suzerainty of HisMajesty;

(v) To bring into hatred or contempt any class or section ofHis Majestys subjects in British India.

73. If the words, signs or visible representations containedin a newspaper, book or other document are likely to produce any of theseeffects or may have a tendency to produce any of these effects, the question ofintention is immaterial; we are concerned, not with the intention of theauthor, but with the effect which they tend to produce or are likely toproduce. In my opinion, if the section had stopped with the first paragraph ofwhat is now sub-see. (1), the question of interpretation would thus have beenfairly simple; the sub-section includes, however, two explanations which mustbe taken into account; the second of these has formed the subject of muchdiscussion and comment.

74. The object of the second explanation is to exclude fromthe scope of cl. (c) comments of certain classes which may be enumerated inthree groups as follows :--

(i) Comments expressing disapproval of the measures of theGovernment or of any Native Prince or Chief under the suzerainty of His Majesty:

Provided that such comments are made with a view to obtaintheir alternation by lawful means

Provided also that such comments are made without excitingor attempting to excite hatred, contempt or disaffection;

(ii) Comments expressing disapproval of the administrativeor other action of the Government or of any Native Prince or Chief under thesuzerainty of His Majesty :

Provided that such comments are made without exciting orattempting to excite hatred, contempt or disaffection;

(iii) Comments expressing disapproval of the administrationof justice in British India :

Provided that such comments are made without exciting orattempting to excite hatred, contempt or disaffection.

75. In each of these cases, the question of intention ismaterial; in the first case, we have to ascertain the purpose with which thecomments have been made, and in all the three cases, we have to determinewhether an attempt has been made to excite hatred, contempt or disaffection. Inthe language of Stephen (Digest of Criminal Law, Art 50), an attempt to commita crime is an act done with an intent to commit that crime and forming part ofa series of acts which would constitute its actual commission if it were notinterrupted. To put the matter differently, attempt is an act done in partexecution of a criminal design, amounting be more than mere preparation, butfalling short of actual consummation, and, possessing except for failure toconsummate, all the elements of the substantive crime, in other words, anattempt consists in the intent to commit crime, combined with the doing of someact adapted to but falling short of its actual commission; it may consequentlybe defined as that which if not prevented would have resulted in the fullconsummation of the act attempted [Reg. v. Collins L. L. C. 471; 9 Cox. 497(1861)]. The effect of the second explanation thus is to exclude from theoperation of cl. (c) three classes of comments, subject to the qualificationsformulated above. Consequently, where a case is alleged to fall within thescope of the second explanation, it is incumbent on the Court to examine thequest ton of intention. But even though the question of intention is found infavour of the person whose security has been forfeited, he cannot obtain thebenefit of the explanation, if the comments do in fact excite or constitute anattempt to excite hatred, contempt or disaffection; The stringent provisions ofthe substantive portion of the subjection are consequently; relaxed only to avery limited extent: comments of the character mentioned in the secondexplanation may be permissible, even though they are likely or may have atendency to produce the corresponding result mentioned in cl. (c), hut theymust not excite or constitute an attempt to excite hatred, contempt ordisaffection. The difference, between the clause and its explanation thusconsists, in the main, of the recognition of the distinction between likelihoodand tendency on the one hand and realisation or attempt on the other hand;this, though appreciable in theory, is likely to be valueless in practice tothe person concerned. The exception to the all-comprehensive general rule,contained in the so-called explanation, still further loses its effect, when itis borne in mind that comments may in one portion be protected by the secondexplanation, but may, in another portion, fall within the scope of cl. (c). Insuch an event the passage as a whole must plainly be deemed obnoxious. Sec. 17authorises the person against whom an order of forfeiture has been made undersec. 4 to apply to the High Court within two months from the date thereof toset it aside on the ground that the newspaper, book, or other document inrespect of which it was made did not contain any words, signs or visiblerepresentations of the nature described in sec. 4, sub-sec. (1). Sec. 18provides for the hearing of the application by a Special Bench of the Court.Sec. 19, sub-sec. (1), provides that the Special Bench shall set aside theorder of forfeiture if it appears to the Bench that the words, signs or visiblerepresentations contained in the newspaper, book or other document in respectof which the order in question was made were not of the nature described insec. 4, sub-sec. (1). Two propositions indisputably result from theseprovisions, namely, first, that the validity of the order of forfeiture can bequestioned only on the ground, namely, that the words. signs or visiblerepresentations in question are not of the nature described in sec. 4. sub-sec.(1), and, secondly, that although the order may have been made by the LocalGovernment on the ground that the words, signs or visible representations wereof the nature described in one or other of the six clauses of sec. 4, sub-sec.(1), the High Court can set aside the order of forfeiture only if satisfiedthat they do not fall within any of those clauses. In this connection, nquestion of burden of proof was raised in the course of argument and referencewas made to the decisions in Protab v. Empress 11 C E. R. 25(29)(1882),Rohimuddi v. Queen-Empress I. L. R. 20 Cal. 353 (357) (1892) and Milan Khan v.Sagar Bepari I. L. R. 23 Cal. 347 (319) (1895) to show the true functions of aCourt of Criminal Appeal These cases affirm the doctrine that a Court of CriminalAppeal should approach the case before it with a View to determine whether theconviction can be sustained on the materials on the record. That principleclearly has no application to a hearing under sec. 18 of the Indian Tress Act.An order is made by the Local Government in exercise of the powers conferred bythe statute. The person affected thereupon applies to the High Court to setaside the order on the allegation that the words, signs or visiblerepresentations are not of the nature described in sec. 4, sub-sec. (1). It ismanifest that the Court does not approach the case with the presumption thatthe order is erroneous: the burden lies upon the Petitioner to establish thevalidity of his contention. If he fails to satisfy the Court that the words, signsor visible representations are not of the nature described in sec. 4. sub-sec.(1), the application must be dismissed. There is no force in the contentionthat this interpretation compels the Petitioner to prove a negative; theargument is based on a superficial view of what must take place at the trial.The Court is invited by the Petitioner to examine the true nature of the words,signs or visible representations; he expounds his version before the Court; ifhe is able to persuade the Court to accept his exposition as the correctinterpretation. the construction adopted by the Local Government standsdisplaced, with the result that the order of forfeiture is cancelled. Theburden of proof thus clearly lies upon the Petitioner. We have next to considersec. 20 which is in these terms : "On the hearing of any such applicationwith reference to any newspaper, any copy of such newspaper published after thecommencement of this Act, may be given in evidence in aid of the proof of thenature or tendency of the words, signs or visible representations contained insuch newspaper which are alleged to be of the nature described in sec. 4,sub-sec. (1)." There has been considerable discussion at the Bar as to theobject and meaning of this section. In my opinion, the object of the sectionwas to widen, for a specified purpose, the rule of evidence embodied in sec. 14of the Indian Evidence Act. Illustration (e) to that section shows that when Ais accused of defaming B publishing an imputation intended to harm the reputationof B, the fact of previous publications by a respecting B showing ill-will onthe part of A towards B is relevant as proving As intention to harm Bsreputation by the particular publication in question. Sec. 20 of the IndianPress Act lays down a more comprehensive rule in the case of newspapers,inasmuch as it allows any copy of the newspaper, published after thecommencement of the Act, to be given in evidence in aid of the proof of thenature or tendency of the words, signs or visible representations. Sec. 14 ofthe Indian Evidence Act, on the other hand, would not make the evidencerelevant, unless the existence of a state of mind or state of body or bodilyfeeling was in controversy. It must be observed, however, that the wider ruleembodied in sec. 20 of the Indian Press Act does not apply to publicationsother than newspapers; in other words, if a question arises as to the nature ortendency of the words contained in a book, previous books by the author cannotbe given in evidence under sec. 20. But it has been argued that sec. 20 has, atthe same time, a restrictive effect in two directions, namely, first, thatevidence of the type contemplated by sec. 20 can be adduced only on behalf ofthe Crown, and, secondly, no evidence other than what is admissible under sec.20 can be adduced at the trial either by the Petitioner or by the Crown. I amconvinced that these propositions are not well-founded. The first, contentionis based on a very narrow interpretation of the expression " in aid of theproof of the nature or tendency." In my opinion the matter before theCourt is the determination of the question of the nature. or tendency of thewords, signs or visible representations. The parties come forward with counterallegations, and each side relies upon copies of previous issues of thenewspaper in support of the construction favoured by it. If the copies producedare relevant, plainly the language of the section is not unduly strained whenwe hold that the materials produced, whether by the one side or by the other,constitute evidence "in aid of the proof" of the nature or tendency.Besides, this is a manifestly just interpretation. The contrary view whichseeks to confine the privilege production of evidence under the section to theCrown alone would lead to a position so obviously unjust that I cannot persuademyself to believe that such a departure could really have ever been intended bythe legislature, to be achieved indirectly by the disguise, as it were, of sec.20. I hold accordingly that sec. 20 may be utilised by the person affected bythe order of forfeiture precisely in the same manner as by the Crown. [AmarSingh v. Emperor [1915] 15 P. R. Cr.; [1915] 33 F. W. R. Cr and Ghulam v.Emperor [1814] 87 P. W. R; [1914] 211 P.L.R.1. The second contention is equallygroundless. If the legislature had intended that no evidence of any descriptionwhatever, other than what is contemplated by sec. 20, should be admissible atthe trial, an express provision to that effect might no doubt have been easilyframed. Besides, cases can be imagined without difficulty, where evidence otherthan what is admissible under sec. 20 might be indispensable to enable thatCourt to discharge the duty imposed upon it by sec. 19. To take one instance :if the order of forfeiture relates to signs or visible representations,evidence may be essential to enable the Court to determine their meaning beforetheir tendency could be adjudged. Again, where the order of forfeiture relatesto words, they may, it is not inconceivable, belong to a language not known tothe members of the Special Bench; or their tendency to produce a specifiedeffect may be by suggestion, allusion or implication which may stand in need ofexposition by evidence. It is not necessary for our present purpose to attemptan exhaustive enumeration of the classes of evidence which might be admissible;but what appears to me to be clear is that sec. 20 was not enacted with a viewto exclude all evidence other than what is rendered admissible thereby.

76. Sec. 21 requires the High Court to frame rules toregulate the procedure in the case of applications under sec. 17, the amount ofthe costs thereof and the execution of orders passed thereon and until suchrules are framed, the practice of the Court in proceedings other than suits andappeals are to apply so far as may be practicable. The requisite rules havebeen framed by this Court, and are set out in the Volume of Rules and Ordersedited by Mr. Hechle. Sec. 22 provides that, every declaration of forfeiture,purporting to be made under the Act, shall, as against all persons, beconclusive evidence that the forfeiture therein referred to has taken place,and no proceeding purporting to be taken under the Act shall be called inquestion by any Court except the High Court on such application as aforesaid,that is, the application mentioned in sec. 17. This section makes thedeclaration of forfeiture conclusive evidence of the factum of forfeiture;further the legality of the forfeiture can be questioned, only by the methodmentioned in sec. 17 and to the extent provided thereby. To take oneillustration; when an order of forfeiture has been made in respect of a book,the order, if not set aside in a proceeding under sec. 17, is conclusiveevidence of the fact in a civil suit between the publisher and the author. Sec.26 provides that nothing contained in the Act shall be deemed to prevent anyperson from being prosecuted under any other law for any act or omission whichconstitutes an offence against the Act. Consequently, the fact that an order offorfeiture has been made under the Indian Press Act, does not stand in the wayof a possible prosecution for sedition under the Indian Penal Code, in respectof selfsame writing.

77. I have so far analysed the relevant provisions of theIndian Press Act without the aid of judicial decisions. The object of thelegislation was to secure control over presses, publishers and means ofpublication, as also the suppression of seditious or objectionable newspapers,hooks or other documents wherever found. It might legitimately have beenexpected that the provisions in a statute of this character, so comprehensivein its application and so far reaching in its consequences, would carefully becouched in language which leave no possible room for doubt as to their meaningand legal effect. The fact, however, is otherwise, and reference hasconsequently been made to judicial pronouncements on the subject, whichthemselves are not always easy to reconcile [In re Mahomed Ali (9), Purusottamv. Government of Bihar (10), Besant v. Emperor (1) and Besant v.Advocate-General of Madras 35 T.L.R. 500 : s. o. 23 C.W.N. 984 (1919)]. Theviews expressed in In re Mahomed Ali [1919] Pat. 65; 4 P.L.J. 174 (1919) were,on many vital points, not accepted by the Madras High Court in Besant v.Emperor I.L.R. 89 Mad. 1085 (1916) and as the latter decision has now beenapproved by the Judicial Committee, the decision in In re Mahomed Ali I.L.R. 41Cal. 466 : s c. 18 C.W.N. 1 (1913) can no longer be treated as binding in sofar as it is inconsistent with the decision of the Judicial Committee. I do notwish to examine minutely the judgment of the Judicial Committee as if it were astatute, but it is worthy of note that there are passages in it, which are, inappearance at least, of contradictory import. One of the controverted questionis, whether the second explanation covers the whole of cl. (c) and therebymakes intention an essential factor in all cases comprised in the clause. Thereare four passages in the judgment of the Judicial Committee which bear directlyon this point :-

(i) It is perhaps not easy to see how Expln. II, with itsqualifications, adds to or detracts from the direct language of para. (c). Asimilar observation might be made upon sec. 124A of the Penal Code. The utmostthat can be said is that the addition of the explanation with its apparentrepetition of the positive enactment, in the guise of a qualification of theexplanation shows an almost meticulous care by the legislature to balance thetwo considerations." (Consideration of freedom of argument andconsideration of the preservation of law and order or of harmony).

(ii) "In substance, the question under cl. (c) of sec.4, sub-sec. (1) comes to this Are the passages such as in fact to excite or dothey disclose an attempt (which implies intention) to excite hatred, contemptor disaffection towards the Government or of any class or section of HisMajestys subjects in India."

(iii) " It must be remembered that those words in cl. (c)which refer to the hatred or contempt of a class or section are not limited byExpln. II, and that there has been, in this respect, some departure from thepolicy of the Penal Code, which superadded a qualifying explanation which hasnot found place in the Press Act."

(iv) "All the (Madras) Judges thought that severalpassages were calculated to bring the Government in hatred and contempt, andthis after giving due weight to Expln. II."

78. Nothing would be gained by an endeavour to harmonisethese passages, but taken together and read with the judgments of the MadrasHigh Court, in which, according to their Lordships, they do not find that thesection has been misconstrued, the Judicial Committee may be taken to haveaffirmed the view that no question of intention arises under sec. 4, sub-sec.(1), apart from the second explanation which does not cover all the casescomprehended in cl. (c). In this view find myself unable to accept thecontention, pressed by Mr. Das with much learning and ingenuity, that we shouldinterpret sec. 4 as if it were a re-enactment of the Indian and English Law ofSedition. I do not overlook that, towards the conclusion of their judgmenttheir Lordships of the Judicial Committee describe the proceedings as a"Criminal case": nor am I unmindful that in an earlier passage, theyrefer to the cases of Queen-Empress v. Tilak I.L.R 22 Bom. 112(1897), Tilak v.Queen-Empress L.R. 26 I. A. 1 : s.c. I. L.R. 22 Bom. 528 (1897), Queen-Empressv. Ramchandra I. L. R. 22 Bom. 152 (1807) and Queen-Empress v. Ambaprasad I. L.R. 20 All 55 (F. B.) (1897)., wherein see. 124A of the Indian Penal Code wasconstrued, and proceed to observe that these judgments are of considerableassistance towards the construction of sec. 4 but they also point out, in that,very passage, that the language of sec 124 A is not precisely the same as thelanguage in the Press Act, and in another passage, they add that there has beenin the Press Act some departure from the policy of the Penal Code. It may hepointed out further that, in the Indian Penal Code. the provision in respect ofsedition is contained in sec. 124A, which finds a place in the sixth Chapter ofthe Code, devoted to offences against the State, whereas see. 153A, whichrelates to cases of promoting enmity between clases, finds a place in theeighth Chapter devoted to offences against private tranquillity. In the PressAct, on the other hand, what corresponds to but is not identical with the Lawof Sedition is contained in sec. 4, sub-sec. (1) but what might havecorresponded to sec. 153A does not at all find a place in cl. (c); as a matterof fact the provision was in the Bill as first published, but was omitted fromthe final version. We cannot also overlook what indeed is obvious on acomparison of the terms of sec. 124A of the Penal Code and sec. 4 of the PressAct. that the two provisions cannot be completely assimilated, far less canthey be treated as identical.

79. The scope and purposes of the two legislations arefundamentally different, and however helpful the decisions on sec. 124A of thePenal Code may be, we cannot import into sec. 4 of the Press Act a meaning notjustified by its language. No useful purpose would thus he served by anexamination of the principles enunciated in the cases of R.v. Duffy 2 Cox. C C.45; 9 Ir. L. R. 329 (1846)., R.v. Sullivan 11 Cox. Cr. C. 44 (1868), R.v.OBrien 16 Cox. C. C. 180; 12 Ir. L.R. 29 (1883), R.v. Burns 16 Cox. Cr. C. 355(1886), Reg. v. MHugh [1901] 2 I.R. 669. and R.v. Aldred 22 Cox. Cr.C.l (1909)which were relied upon by Mr. Das with a view to enumerate the elements of aseditious intention under the Law of England (Stephens Digest of Criminal Law,6th Ed., Art. 98). It would indeed be against all recognized canons ofinterpretation to import into the Press Act the provisions of the Law ofSedition as enacted in the Indian Penal Code or as administered in England. Ifthe legislature had intended to make sec. 4 an exact reproduction of the Law ofSedition, the section might have been materially shortened; the purpose wouldhave been served if a simple provision had been framed to the effect that anorder of forfeiture might be made wherever a newspaper, book, or other documentwas found to contain matter such as would justify a conviction under see. 124Aor see. 153A. I cannot consequently accede to the contention that the test ofthe validity of an order of forfeiture under see. 4 is whether the offendingarticle justifies a conviction under sec. 124A.

80. A preliminary point must next be noticed before thesubject-matter of the offending articles is scrutinised. It has been arguedthat the terms of the notice of forfeiture are defective, inasmuch as sec. 4,sub-sec. (1), cl. (c) refers to " hatred or contempt of any class orsection of His Majestys subjects in British India," whereas the noticementions " the officers of the Government recruited in England." Itcannot he disputed that this variance between the language of the statute andthe terms of the order should have been avoided, and there is no reason why thenotice should not have adhered to the exact language of the section. Thisvariance, however, even if it were treated as material, cannot be made a groundfor cancellation of the order of forfeiture. There is one ground and one groundalone on which the validity of the order can be attacked under sec. 17. whichcan be set aside only under sec. 19; a defect in the form of the notice undersec. 4, sub-sec. (1) is not included in such ground. The articles mustconsequently be now examined with a view to determine whether the words are notof the nature described in sec. 1, sub-sec. (1).

81. It is necessary to keep before us the precise issuewhich requires investigation. because the question of the admissibility of theevidence tendered under see. 20 or under the general law must be decided fromthe point of view of its relevancy.

82. The questions, then, are as follows :--

(i) Are the words contained in the newspaper likely toproduce or have they a tendency to produce any of the five categories ofconsequences mentioned in cl. (c) as analysed above;

(ii) If the answer is in the affirmative, do the articlesfall within one or more of the three classes of comments enumerated in thesecond explanation as analysed above.

83. As regards the first question, the opinion I have formedis that both the articles, read without elucidation, have a tendency to bringinto hatred or contempt or to excite disaffection towards the Governmentestablished by law in British India. Besides this, the first article has also atendency to bring into hatred or contempt a class or section of His Majestyssubjects in British India, namely, the officers of that Government recruited inEngland. The language of the articles is plain and unambiguous and does not standin need of, possibly does not admit of, a commentary and exposition. There isin both the articles an open and incisive attack, of the most direct andstraight forward character imaginable, on the Government established by law inBritish India; in addition to this, the Anglo-Indian officers are described inthe first articles as the lease-holders of India who serve themselves first,then their mother country, and next the three hundred and fifteen millions inIndia who are governed by them at their sweet, will on principles which areabsolutely despotic and some of them un-British and barbarous. I shall notattempt a summary or an analysis, because in the process of condensation, manya choice phrase and expression would be left out; to appreciate fully thearticles, they must be read in their entirety. In my judgment, when they are soread, there can be no doubt as to their tendency. But Mr. Das has made aningenious attempt to adduce evidence to elucidate their probable effect and toprove that their real tendency is the reverse of their apparent tendency. Heforeshadowed the classes of evidence he would tender for this purpose :--

(1) Documentary evidence contained in charters,proclamations, official despatches, pronouncements by Ministers of the Crown, from1833 to 1919 on the subject of the methods of administration of India;

(2) Documentary evidence to prove that various reforms inthe mode of administration, proposed or inaugurated from time to time by theGovernment, have not been realised or have been delayed or restricted by reasonof the activity of Government officials in India, such as the LocalSelf-Government Scheme of the Marouis of Ripon, the Morley-Minto Reforms, andthe Motague-Chelmsford plan for responsible Government;

(3) Reports of Royal Commissions inclusive of dissentientminutes, such as the Industrial Commission and the Public Service Commission,in order to show how the development, of Indian industries has been retarded,if not sacrificed and how the pledges of successive sovereigns for the goodgovernment of India have remained unfulfilled;

(4) Documentary evidence to show that the British Parliamenthas exercised little effective control over the affairs of the IndianGovernment with the result that officials in this country have been responsibleneither to the Parliament nor to the people;

(5) Oral and documentary evidence of events in the Punjabmentioned in the second article and the public feeling created thereby;

(6) Oral evidence to prove the actual effect, produced on theminds of those who have read the offending articles;

(7) Evidence as to the general policy of the paper.

84. The ostensible object with which this evidence wastendered was to establish the tendency of the articles in question, but thereal purpose was two-fold, namely, first, to prove the absence of seditiousintent, and, secondly, to establish the truth of the allegations made in thearticles. Now, as I have already explained, the absence of seditious intent isnot a material factor in the determination of the very specific issues we arecalled upon to try; an article may well be beyond the bounds of the IndianPenal Code: but may yet be drawn into the net of the Indian Press Act. We arethus concerned here with the tendency of these articles. That, tendency ismanifest to every reader of ordinary intelligence. The evidence of witnesses oneither side stating the impression produced on their minds by a perusal of thearticles would, even if it were admissible, be of little assistance; the Courthas to determine for itself, in a case like the present (where there is nodoubt or ambiguity as to the meaning of the words), what effect they are, bytheir nature, likely to produce on the normal average reader understanding thenin their plain natural meaning. Nor would it be useful, even if it werepermissible, to investigate what class of people subscribe to the newspaper,for the actual readers may well be assumed to be far more varied and numerousthan the subscribers themselves. The evidence to prove the truth of theallegations made in the articles is equally irrelevant. Justification cannot bepleaded to take the case out of the operation of sec 4, sub-sec. (1); and inone of the numerous cases cited by Mr. Das himself, R. v. MHugh (19), aneminent Irish Judge Lord OBrien, L.C.J., pointed out that there were caseswhere the maxim prevailed "the greater the truth, the greater thelibel." Consequently, the historical documents, formidably arrayed, whichMr. Das offered to put in evidence (and which, by the way, are familiar to allstudents of British Indian History) were inadmissible, for the simple reason thatthey were irrelevant for the determination of the question of tendency of thetwo articles. Nor was evidence of intention admissible, on this part of thecase, for as already explained the question of intention does not arise inrelation to (19) [1991] 2 I. R. 569. that portion of sec. 4, sub-sec. (1),which precedes the explanation. We are thus left with the evidence tendered byMr. Das under sec. 20, namely, copies of the " Amrita Bazar Patrika "published after the commencement of the Indian Press Act. Such evidence couldbe given only in aid of the proof of the nature or tendency of the words whichare alleged to be of the nature described in sec. 4. Here, again, the evidencemust be tested from the standpoint of relevancy. Some prima facie connection mustbe made out between the offending articles and the matter contained in thecopies of the newspaper tendered in evidence; if no such connection isestablished, the evidence must be rejected. On this ground, we rejected,forthwith, extracts which embodies a sermon by the late Bishop of Calcutta,speeches by the Secretary of State on the Reform Bill and the MesopotamiaCommission, Minutes of dissent by Pandit Madanmohan Malaviya and Sir SankaranNair, letters of resignation by Additional Members of the Imperial LegislativeCouncil, such as Mr. Mazurul Huq and Mr. Jinnah, speeches by His Excellency theViceroy, reports of public meetings and speeches delivered there, reports frompress correspondents and like matters. They had no relevancy whatever to thedefinite question under investigation, namely, the true nature and tendency ofthe two articles. The same remark is applicable to the other numerous articlespublished in the paper during the last two years on a variety of politicaltopics. They Had no bearing on the question of nature or tendency of theArticles under consideration; some of them might Have been of assistance, ifthe question of seditious intent had been material, but it must not be assumedthat all of them would have Tended in" favour of the newspaper.

85. The position thus is that although evidence of the kindcontemplated by sec. 20 was admissible in aid of the proof of the nature andtendency of the articles, and other evidence, if available, might conceivablyhave been used for the same purpose, the evidence actually tendered was whollyirrelevant for the determination of the question of nature and tendency, I holdaccordingly that, apart from the second explanation, the words contained inboth the articles have a tendency to bring into hatred or contempt or to excitedisaffection towards the Government established by law in British India, andthe words used in the first article also tend to bring into hatred or contempt& class or section of His Majestys subjects in British India, namely, theofficers of the Government recruited in England. This leads us on to the nextquestion.

86. The second question raises the issue, whether thearticles in their entirety fall within the scope of the second explanation andare thus excluded from the operation of cl. (c). It must be stated at theoutset that in so far as the first article has a tendency to bring into hairedor contempt a class or section of His Majestys subjects in British India, itcannot be rendered immune by the operation of the second explanation. Acomparison of the five categories included in cl. (c) with the three comprisedin the explanation, makes it abundantly clear that the fifth category in cl.(c) has no counterpart in the explanation. With regard to this aspect of thefirst article, then, no question of intention can possibly arise, and this byitself would be sufficient to justify the refusal of the application withregard to that article. We have next to examine whether, apart from this, thetwo articles can be deemed to consist exclusively of comments of one or more ofthe three types mentioned in the explanation. The answer must be in thenegative. As regards the first class of comments, namely, those expressive ofthe disapproval of the measures of the Government, it is plain that the term"measures" was intended to apply to legislative measures; theanalysis of the explanation set out above shows that the comments were regardedby the legislature in three aspects, namely, tie legislative, theadministrative and the judicial functions of the State. Mr. Das has contendedthat the articles contained comments expressing disapproval of the legislativemeasures as also the administrative acts of the Government. If it be assumedthat some of the comments may fairly be regarded in this light, it is obviousupon a perusal of the articles that they contain a great deal which cannotpossibly be deemed as comments of this description. On this part of the case,according to the Judicial Committee, the question of intention is material. Consequently,evidence would be admissible to prove the intention; but the evidence tenderedis irrelevant. No portion of that evidence had any bearing upon the question ofintention of the author of the articles. The question of intention comes in, aswe have seen, from the use of the expressions "with a view to obtain"and "attempting to excite." These expressions are hardly applicableto "Comments"; but the explanation is ill-expressed, and in view ofthe decision of the Judicial Committee as to the materiality of intention inthis connection, it would be fruitless to speculate as to the real intention ofthe framers of the Act. But, as the Judicial Committee point out, in judgingthe question of intent, the publisher must be deemed to intend that which isthe natural result of the words used, having regard, among other things, to thecharacter and description of that part of the public who are to be expected toread the articles. From this point of view, there can be little doubt as to theintention. The articles themselves speak of "the seething discontent thatprevails from one end of India to the other" and state that "now thewhole country is ablaze; it is not the educated Indians alone who are indignantat these gross outrages, but the masses as well." If this be a correctdescription of the condition of the people, and the writer of the articles ismost emphatic in his assertion, the effect of comments of the charactercontained therein would plainly be to excite hatred, contempt and disaffection.The position then is that even if the two articles had not contained an attackupon Government, and had consisted exclusively of comments expressingdisapproval of the measures of the administrative action of the Government, theexplanation would have been of no avail, inasmuch as they constitute an attemptto excite, even if they do not actually excite, hatred, contempt anddisaffection amongst a people who, on the unimpeachable testimony of thewriter, were already in a state of excitement. But, as I have stated before,even if some of the passages can be treated as disapproving comments on thelegislative measures and administrative actions of the Government, they containa great deal not comprehended in that description. The result consequently isthat the nature and tendency of the articles taken as a whole bring them withinthe operation of sec. 4, sub-sec. (1), cl. (c), and they cannot be excludedtherefrom by the application of the second explanation.

87. In this view the conclusion follows that the applicationunder sec. 17 fails and must be dismissed with costs, as directed in thejudgment of Woodroffe, J.

Ernest Edward Fletcher, J.

I agree with the judgment of Mr. Justice Woodroffe.

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In Re: The Amrita Bazar Patrika Press Ltd. (28.07.1919 - CALHC)