Full Judgment
Siadat Ali Khan, J.
1. This is reference No. 318/6/1954-55 by the Sessions Judge, Hyderabad & Secunderabad, dated 21-6-1954. We have heard the arguments of the learned advocates of the parties.
2. The facts alleged are that the Commissioner of Police, Hyderabad City, lodged a complaint against Mrs. Saadat Jahan Razvi, Editor, Printer, Publisher of an Urdu daily 'Tazyana' on the ground that several publications, specified In the complaint, contain objectionable matters as denned in Section 3 Sub-sections (V) & (VI), Press (Objectionable Matter) Act, 56 of 1951. The Sessions Court tried the complaint with the help of the 'Jurors.
The jurors gave their unanimous verdict that all the publications did not contain any objectionable matter. The Sessions Court agreed with them regarding 4 articles, but differed in respect of the article published in the issue of 16-7-1953 and referred the case to this Court for suitable orders under 8, 21(2) of the Act. It is on this reference that we heard the arguments of the learned advocates of the parties.
3. The article of 16-7-1953 is headed 'the boat of oppression is bound to sink'. A summary of it is given in paras. 8-12 of the judgment of the-Sessions Court. Briefly it speaks of the oppression, of the Muslims by the majority community, accuses the Government that in spite of subversive activity and disturbances it has maintained silence and, therefore, it is clear that the atrocities perpetrated on the Muslims by the majority community are done according to a plan with the-help and connivance of the Government.
Then, it goes on to say that the Congress volunteers should not consider the Muslims helpless, for days are not always the same, and no false and spurious power can stand against right and truth and the days of the Muslims will also-come. It ends by praising the Prime Minister of India for his valuable efforts against communalism and advises the Muslims to strengthen his hands as he is the only person of whom the Muslims can be proud.
4. It is this article that is considered objectionable under Section 3(V), Press (Objectionable Matter) Act of 1 951. That provision reads as follows:
3. In this Act the expression 'Objectionable matter' means any words signs or visible representation which are likely to.
(v) promote feelings of enmity or hatred between different sections of the people of India'.
It was argued by the learned advocate for the respondent that the above article does not come within the mischief of the sub-section referred to above, as it does not exceed the bounds of comments made in disapprobation and criticism of the policy and administrative action of the Government with a view to obtain its alteration, and redress by lawful means. On the other hand it was urged by the learned Advocate-General that it exceeds the bounds and is therefore objectionable. He emphasised what we have to see is whether the words are likely to promote feelings of enmity or hatred between the different sections of the people of India.
The contention of the learned advocate for the respondent was that unless the complaint; proves also the attending circumstances in which it was likely that feelings of hatred and enmity between the two communities can be endangered, the sub-section under consideration does not come-into operation. He relied on State of Bihar v. Shailabala Devi, : 1952 CriLJ1373 . The learned Advocate General, however, contended that the attending circumstances need not be proved. What the court has to consider is simply whether the article itself Is likely to create the feelings mentioned. He relied on Tilokchand Gopaldas v. State, 1954 Ajmer 19 (AIR V 41) (B), & the Supreme Court judgment mentioned above.
5. We carefully considered the above contentions of the learned advocates and examined the record carefully. It appears to us that under the wording of Explanation 1 to Section 3 of the Act under consideration the impugned article is innocuous. The Section provides that 'objectionable matter' means any words etc., which promote feelings of enmity or hatred between different sections of the-people of India but Expln. No. 1 explains this in the following words:
No. 1. Comments expressing disapprobation or criticism of any law or any policy or administrative action of the Government with a view to obtain its alteration or redress by lawful means, and words pointing out, with a view to their removal, matters which are producing, or have a tendency to produce, feelings of enmity or hatred between different sections of the people of India, Shall not be deemed to be objectionable matter within the meaning of this Section.
The whole tenor of the article is that the Muslims are being oppressed and the Government is silent about it in spite of knowing that the Muslims were being oppressed. The article treats this as rank communalism, tolerated or even sponsored by the Government. It, therefore, says that oppression based on communalism will not do and should be stopped. It ends by saying that the only person who can put an end to it is the Prime Minister of India.
An appeal is made to him to end it and to the Muslims to look up to him for this end. In our opinion, this article though expresses a disapprobation and criticism of what the author considers to be the communalist policy or administrative action of the Government in strong words yet this is done with a view to obtain its alteration or redress by lawful means; hence, even though the words may have a tendency to produce the feelings of enmity or hatred between the different sections, they cannot be deemed to be objectionable matter within the meaning of this Section.
The invective against oppression, the denunciation of evil acts and the praise of Right and truth with condemnation of communalism, and the statement that the Prime Minister disfavours communalism and the Muslims should strengthen his hands to end it, means clearly that redress by lawful means alone is sought. There is no incitement to violence in the whole article. Thus in this way the article comes under the very words of Expln. No. 1 of the Act, and is thus not objectionable. The reference, therefore, fails on this very ground.
6. But the learned Advocate General read to us : 1952 CriLJ1373 in support of his contention that what we have to see is whether the impugned words in the article are likely to promote the feelings of hatred and that it is not necessary that any attending circumstances have to be proved by the complainant. We perused the Judgment more than once to see whether we can agree with him. In both the judgments delivered in the case emphasis is laid on the attending circumstances. No doubt the first judgment quotes the words of the learned Chief Justice of the Patna High Court in Badri Narain Singh v. Chief Secy, to Govt. of Bihar, 1941 Pat 132 (AIR V 28) (SB) (C) to the effect that:
it is not necessary to show that the words tend to incite or to encourage the commission of a particular offence or offences and it is sufficient if they tend to incite or encourage the commission of cognizable offences of violence.
but it is also observed that:
it is quite clear here that an appeal was made to the labourers inciting and encouraging them to commit acts of violence. The words used certainly tended to achieve that result. They were no empty slogans or abstract propositions. It had one consistent and coherent purpose i.e., to excite labourers and to bring them into action.
And it laid down that: -
Any observation made about this writing can have no application for the determination of this present case.
And it is laid down further that:
there was no evidence whatsoever for connections of this pamphlet with any agitation or movement at the time it was written in the locality.
It was remarked further that:
Rhetoric of this kind might in conceivable circumstances inflame passions, but if such exceptional circumstances exist it was for the State Government to establish the fact.
7. These are very clear words and they show that the State Government had to establish the attending circumstances as a fact. Similarly in. the other judgment at para 18 towards the end of p. 334 it was observed that: -
the difficulty is that the Government had not made any attempt to establish any of these facts. Without knowing the a tending circumstances and the actual back ground of the publication it is not possible to ascertain the real intention that lies behind and no material has been placed by the Government which might enable us to find out what in reality was the substance behind this camouflage of words.
These again, are very clear words and show that the attending circumstances have to be established by the State Government so that the intention of creating enmity or hatred between the different sections can be inferred.
8. In the Ajmer case in para 10 it is held by the learned Chief Justice that:
all that I have to see is not what actual effect this article had, but what effect it was likely to have in the circumstances stated above.
9. But in the preceding paragraph i.e., para 9 of this very judgment, the learned Chief Justice gives effect to the Expln. No. 1 and holds that:
in my view, the words pointing out matters which are producing, or have a tendency to produce, feelings of enmity or hatred are not to-be deemed objectionable matters, if this pointing, out of the matter is done with a view to their removal of the causes which are producing the undesirable effects.
10. It should be noted that though the word 'likely' is used in Section 3(V) of the Act, yet in the Supreme Court judgment emphasis is laid on the attending circumstances. And though the Ajmer judgment considered the likelihood of the impugned word's to produce enmity or hatred sufficient yet not even a reference to : 1952 CriLJ1373 is to be found in this judgment.
We are clearly of the opinion that, in any case, as the article ends with an appeal to the Prime Minister of India and to the Muslims to strengthen the hand of the Prime Minister to end the communalism, the article appears to be a criticism or disapprobation of the communalist policy of the State Government, as it conceives it to be. Therefore, as it is a criticism, though in unnecessarily strong words, with a view to end communalism through lawful means it does not come within the mischief of Section 3(V) read with the Expln. No. 1 to it. The jury also took the same view.
11. The revision filed by the State and the reference are, therefore, dismissed.
Palnitkar, C.J.
12. I agree in the result that this reference should be rejected. The jury was of the opinion, that the alleged offence has not been proved, against the accused. I don't find any cogent reason to disagree from that view. This reference is therefore rejected.