Full Judgment
Boys, J.
1. This is an appeal of Pandit Krishna Gopal Sharma arising out of his conviction under Section 124-A, I.P. C, and a sentence thereunder of one year's simple imprisonment. The article appeared in a paper called the 'Krantikari' published at Jhansi and is dated 8th April 1929. The article is in two portions: the first headed 'Swaraj and Death,' and the second headed 'Sham Fight.' It is admitted on behalf of the Crown that the whole article from beginning to end had already previously appeared in two other publications: one in Bombay and one in Calcutta. So far as the information before the Court goes no steps were taken in either Bombay or Calcutta to prosecute in regard to either of those publications. That is however of course no reason for holding that the article is not itself actually of a nature to bring upon persons responsible for it the consequences of Section 124-A, I.P.C.
2. No question has been argued before me on behalf of the appellant as to his responsibility or otherwise for the article. He does not appear to have at any time endeavoured to evade such responsibility otherwise than by urging that all he had done was to copy an article from other papers. The material answer in the appellant's examination before the Magistrate was to the effect that the article had already appeared in other papers and he copied it in his own as he did not think it was seditious. Manifestly the essential question is whether it was seditious. But on the question of sentence it is also very material to determine, if possible, whether the appellant thought the article to be seditious. On his behalf I have had only two arguments put to me: first that the article has only been 'copied' from another paper; and secondly that the appellant did not 'intend' to publish anything seditious. Neither of these questions are material except on the question of sentence.
3. I have however very carefully examined the article myself. So examined it becomes apparent that the second part of it, entitled 'Sham Eight,' clearly embodies the primary intention of the article, and in that portion of the article I do not find any words that the most captious person could suggest came within the scope of Section 124-A. There is a reference to the 'unjust policy' of the bureaucracy, and there is a phrase 'courting destruction for the nation.' Manifestly these phrases are harmless in the connexion in which they are used. On the other hand the primary intention of this second portion of the article is very clearly merely to point out that, while a number of persons are all declaring themselves desirous of attaining an object described as 'the main issue,' some of them hold it best to confine their activities to steps outside the councils, while others think it best to enter the councils and do what they can there. The intention of this portion of the article is clearly to induce those who are working in the councils to come out and thereby more effectively assist in the prosecution of the main issue. Had this been all I have no doubt that this prosecution would never have been instituted. But when we look to see what the 'main issue' is, to which reference is made at the end of the article, we find it in the earlier portion of the article, headed 'Swaraj and Death,' described in words which, I do not think anybody could have any doubt, must bring the person responsible for them within the consequences of Section 124-A as being, putting it briefly, guilty of publishing a seditious article. So far therefore I am of opinion that the conviction is right.
4. Coming however to the two matters to which I have already made reference as having a bearing on the question of sentence, we find, firstly, that the articles have been copied from other publications in regard to the appearance in which no prosecution followed. This consideration has already been given weight to by the learned trial Judge in giving a sentence of only one year's simple imprisonment. There is however another point to which apparently attention was not directed in the lower Court and that is the point that the primary intention of the article, by whomsoever it was written, was manifestly merely to get members who are in the council to leave it. It is fair to the accused therefore also to assume that his primary intention in publishing the article was to win over those who were within the council to readiness to leave it. The 'main issue' is disclosed in the earlier part of the article in words that are seditious, and for that the appellant must be held liable. But the fact remains that, doing my best to appreciate the merits or demerits of the case, it does appear to me that the very great probabilities are that this article would never have been published but for the primary desire to get members to leave the councils. This consideration has not been given weight to in the Court below, but I think it deserves consideration. Maintaining the conviction under Section 124-A I therefore reduce the sentence from one year's simple imprisonment to six months' simple imprisonment from the date of his surrender.