# Joshi Girjadharji and Another v. Lachmanji Panth and Others

- **Citation:** [1952] 1 S.C.R. 654
- **Court:** Supreme Court of India
- **Decided:** 1950-10-13
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joshi-girjadharji-and-another-v-lachmanji-panth-and-others-57
- **Pages:** 21

## Headnote

1952
Joshi Girjadharji
and Another
v.
Lachmanji Panth
and Others.
Das/.
1952
May 26.
654
SUPREME COURT REPORTS
(1952]
mortgagees were the same in both the mortgages ..
Although in the petition of appeal to the High Court
it was alleged that the mortgagees were different and
the accounts could not be reopened from
1922,
that
ground was not specifically urged before the High
Court.
The determination of that
question
must
necessarily
involve
an investigation
into facts.
We
do not think, in the absence of a plea in this behalf
in the decree-holders' petition of objection and also in
view of their failure and neglect to raise this
question
before the High Court, it will be right for this final
court of appeal, at this stage and in the circumstances
of this case, to permit the appellants to raise this
question of fact.
The result, therefore, 1s that this appeal must stand
dismissed with costs.
:-
Appeal dismissed.
Agent for the appellants : C. P. Lall.
Agent for the respondents : N atmit Lall.
THE STATE OF BIHAR
v.
SHAILABALA DEVI
[PATANJALI
SASTRI C.J., MEHER
CHAND
MAHAJAN,
MuKHERJEA, DAs and BosE, JJ.]
Indian Press (Emergency Powers) Act (XXlll of 1931), s. 4 (I}
(a)-Constitution of India Arts. 19(1)
and
19(2)-Restrictions
imposed by s. 4(l)(a) on freedom of speech and expression-Whether fall within Art. 19 (2)-Validity of s. 4 (!)-Speeches of
political demagogues-Construction-Burden of prosecution .
. Section 4 (!) (a) of the Indian Press
(Emergency Powers)
Act (XXIII of 1931) is not unconstitutional as the restrictions
imposed on freedom of speech and expression by
the
said
sec·
tion are solely directed against the undermining
of
the security
of the State or the overthrow of it and are within the ambit of
Art. 19 (2) of the Constitution.
Romesh Thapar's case
( [1950]
\
S.C.R.
SUPREME COURT REPORTS
655
S.C.R. 594]) and Brij Bhushan's case ( [1950] S.C.R. 605) do not
1952
lay down any wide proposition that restrictions of the
nature
imposed by s. 4 (1) (a) are outside the scope of Art 19 (2) as
'fhe ~fate of
they are conceived generally in the interests of public order. At
B1har
any rate, the amendment made to Art.
19 (2) by the Constitu-
.
v.
.
tion
(First Amendment)
Act which is retrospective in operation Shatlabala Devi~
makes the matter clear.
In order to determine whether a particular document falls
within the ambit of s. 4 ( 1) the writing has to be considered as a
whole in a. fair, free and liberal spirit, not dwelling
too
much
on isolated passages or upon a strong word here and there, and
an endeavour should be made to gather the general effect
which
the whole composition would have on the minds of
the
public.
Expressions which are the stock in trade of political demagogues
and
have
no
tendency
to
excite
anybody,
and
exaggerations in languages, cannot lead to that result.
Rhetoric of this
kind might in conceivable
circumstances
inflame
passions,
as
for example, if addressed to an excited mob, but if such circumstances exist it is for the Government to establish the fact.
APPELLATE
JuRISDICTION : Case
No.
273
of
1951.
Appeal under Arts.
132(1)
and
134(1)(c) of
the
Constitution of India from the Judgment and
Order
dated 13th October, 1950, of the High Court of Judicature at Patna
(Shearer, Ramaswami
and Sarjoo
Prosad JJ.)
in Miscellaneous Judicial Case No. 220 of
1949.
S. K.. Mitra (K. Dayal, with him), for the appellant.
Basant Chandra Ghosh and Arun Chandra Mitra for
.,...
the respondent.
1952. May 26. The Court delivered judgment
as
follows:-
MAHAJAN J.-This appeal has been preferred by the
State of Bihar against the judgment of a Special Bench
of the High Court of Judicature at Patna allowing the
application of the respondent under section 23 of the
Indian Press
(Emergency Powers) Act, XXIII of 1931.
It appears that the ·petition was argued by both the
sides as it was one made under article 226 of the Constitution.
The respondent was the keeper at all relevant times
of the Bharati Press at Purulia. A pamphlet under
1952

## Text

_Characters 0–39,681 of 44,778. This is a partial read: ask again with offset=39681 for what follows._

1952
Joshi Girjadharji
and Another
v.
Lachmanji Panth
and Others.
Das/.
1952
May 26.
654
SUPREME COURT REPORTS
(1952]
mortgagees were the same in both the mortgages ..
Although in the petition of appeal to the High Court
it was alleged that the mortgagees were different and
the accounts could not be reopened from
1922,
that
ground was not specifically urged before the High
Court.
The determination of that
question
must
necessarily
involve
an investigation
into facts.
We
do not think, in the absence of a plea in this behalf
in the decree-holders' petition of objection and also in
view of their failure and neglect to raise this
question
before the High Court, it will be right for this final
court of appeal, at this stage and in the circumstances
of this case, to permit the appellants to raise this
question of fact.
The result, therefore, 1s that this appeal must stand
dismissed with costs.
:-
Appeal dismissed.
Agent for the appellants : C. P. Lall.
Agent for the respondents : N atmit Lall.
THE STATE OF BIHAR
v.
SHAILABALA DEVI
[PATANJALI
SASTRI C.J., MEHER
CHAND
MAHAJAN,
MuKHERJEA, DAs and BosE, JJ.]
Indian Press (Emergency Powers) Act (XXlll of 1931), s. 4 (I}
(a)-Constitution of India Arts. 19(1)
and
19(2)-Restrictions
imposed by s. 4(l)(a) on freedom of speech and expression-Whether fall within Art. 19 (2)-Validity of s. 4 (!)-Speeches of
political demagogues-Construction-Burden of prosecution .
. Section 4 (!) (a) of the Indian Press
(Emergency Powers)
Act (XXIII of 1931) is not unconstitutional as the restrictions
imposed on freedom of speech and expression by
the
said
sec·
tion are solely directed against the undermining
of
the security
of the State or the overthrow of it and are within the ambit of
Art. 19 (2) of the Constitution.
Romesh Thapar's case
( [1950]
\
S.C.R.
SUPREME COURT REPORTS
655
S.C.R. 594]) and Brij Bhushan's case ( [1950] S.C.R. 605) do not
1952
lay down any wide proposition that restrictions of the
nature
imposed by s. 4 (1) (a) are outside the scope of Art 19 (2) as
'fhe ~fate of
they are conceived generally in the interests of public order. At
B1har
any rate, the amendment made to Art.
19 (2) by the Constitu-
.
v.
.
tion
(First Amendment)
Act which is retrospective in operation Shatlabala Devi~
makes the matter clear.
In order to determine whether a particular document falls
within the ambit of s. 4 ( 1) the writing has to be considered as a
whole in a. fair, free and liberal spirit, not dwelling
too
much
on isolated passages or upon a strong word here and there, and
an endeavour should be made to gather the general effect
which
the whole composition would have on the minds of
the
public.
Expressions which are the stock in trade of political demagogues
and
have
no
tendency
to
excite
anybody,
and
exaggerations in languages, cannot lead to that result.
Rhetoric of this
kind might in conceivable
circumstances
inflame
passions,
as
for example, if addressed to an excited mob, but if such circumstances exist it is for the Government to establish the fact.
APPELLATE
JuRISDICTION : Case
No.
273
of
1951.
Appeal under Arts.
132(1)
and
134(1)(c) of
the
Constitution of India from the Judgment and
Order
dated 13th October, 1950, of the High Court of Judicature at Patna
(Shearer, Ramaswami
and Sarjoo
Prosad JJ.)
in Miscellaneous Judicial Case No. 220 of
1949.
S. K.. Mitra (K. Dayal, with him), for the appellant.
Basant Chandra Ghosh and Arun Chandra Mitra for
.,...
the respondent.
1952. May 26. The Court delivered judgment
as
follows:-
MAHAJAN J.-This appeal has been preferred by the
State of Bihar against the judgment of a Special Bench
of the High Court of Judicature at Patna allowing the
application of the respondent under section 23 of the
Indian Press
(Emergency Powers) Act, XXIII of 1931.
It appears that the ·petition was argued by both the
sides as it was one made under article 226 of the Constitution.
The respondent was the keeper at all relevant times
of the Bharati Press at Purulia. A pamphlet under
1952
The State of
Bihar
v.
Shailabala Devi.
Mahajan T.
656
SUPREME COURT REPORTS
[1952]
the heading "Sangram" was printed at the said press
and is alleged to have been circulated in the town of
Purulia in the district of Manbhum.
The Government
of Bihar considered that the pamphlet
contained
objectionable matter of the nature described
under
section 4(1) of the Indian Press (Emergency
Powers)
Act and required the press to furnish
security
in the
sum of Rs. 2,000, under section 3(3) of the Act by the
19th September, 1949.
On the 26th September,
1949,
the respondent applied to the High Court under section 23 for setting aside the above order.
This application was allowed by the majority of the Judges
constituting the Bench. Shearer J. was of the view
that the application should be dismissed.
Several objections were raised to the validity of the
order passed by the Bihar
Government but it is unnecessary to mention all of them. The two points
which were seriously pressed before the High Court
were that the leaflet did not contain any words or
signs or visible representation of the nature described
in section 4 ( 1) of the Act, and that the
provisions of
section 4 (1) of the Act were inconsistent with article
19 ( 1) of the Constitution and as such void under article 13.
The High Court reached the conclusion that
the pamphlet did come within the mischief of the Act.
. Sarjoo
Prosad J., with whom Ramaswami
J. concurred, on a construction of the decisions of this Court
in Ramesh Thapar v. The State of Madras('), and Brij
.Bhushan v. The State of Delhi(2), found, though with
some reluctance, that section 4 ( 1) (a) of the Act was
repugnant to
the
Constitution and
therefore
void.
Mr. Justice Shearer, however, held that the pamphlet
was a seditious libel and that there was nothing in the
two decisions of the Supreme Court referred to above
which compelled the court to hold the provisions
of
section 4 (1) (a) of the Act to be void.
In my opinion, Shearer J. was right in the view
that there is nothing in the two decisions of this Court
which bears directly or indirectly on the point at
issue in the present case and that both Sarjoo Prasad
(!) [1950] S.C.R. 594.
(2) [1950] S.C.R. 605.
""'·
-~
-'
;.
S.C.R.
SUPREME COURT REPORTS
657
1952
T.ie State of
Bilt11r
v.
and Ramaswami JJ. were in error in holding that
these decisions were conclusive on the question of the
invalidity of clauses (a) and (b) of section 4(1) of the
Act.
Towards the concluding part of his judgment
Sarjoo Prosaj J. observed as follows:-
Sluil11bala Devi.
"I am compelled to observe that from the above
discussions of the Supreme Court judgments, it follows
logically that if a person were to go on inciting murder or other cognisable offences either through the
press or by word of mouth, he would be free to do so
with impunity inasmuch as he would claim
the
privilege of exercising his fundamental right of freedom of
speech and expression.
Any legislation which seeks or
would seek to curb this right of the person concerned
would not be saved under article 19 (2) of the Constitution and would have to be declared void. This would
be so, because such speech or expression on the part
of the individual would
fall
neither under libel nor
slander nor defamation nor contempt of court nor any
matter which offends against decency or morality
or
which undermines the security of or tends to overthrow the State. I cannot with equanimity contemplate such an anomalous situation but the
conclusion
appears to be unavoidable on the authority
of the
Supreme Court judgments with which we are bound.
I, therefore, wish that my decision on the point would
sooner than ever come to be tested by the Supreme
Court itself and the position re-examined in the light
of the anomalous situation pointed out above. It seems
to me that the words used in the Constitution Act
should be assigned a wide and liberal connotation even
though they occur in a clause which provides an
exception to the fundamental right vouchsafed under
article 19( 1) (a) of the Constitution Act."
These observations-I speak with great respectdisclose a complete lack of understanding of the precise scope of the two decisions of this Court referred
to above. Section 3(3) of the Act under which the
notice was issued in the present case enacts as follows :
"Whenever it appears to the
Provincial
Government that any printing press is used for the purpose
Alllhaian J.
658
SUPREME COURT REPORTS
[1952]
1952
of printing or publishing any newspaper, book or
The State o1
other document containing any words, signs or visible
Bihar
representation of the nature described
in section 4,
v.
sub-section (1),
the
Provincial
Government may, by
Shailabala ·'FJeui: · notice in writing to the keeper of the press .... order
Mahaian f.'
the keeper to deposit with the Magistrate security ... "
Clause (a) of section 4 ( 1) deals with words or signs
or visible representations which incite to or encourage,
or tend to incite to or encourage the
commission of
any offence of murder or any cognizable offence involving violence.
It is plain that speeches or expressions
on the part of an individual which incite to or encourage the commission of violent crimes, such as
murder, cannot but be matters which would undermine the security of the State and come within the
ambit of a law sanctioned by article 19(2) of the Constitution.
I cannot help observing
that the decisions
of this Court in Ramesh Thapar's case('), and in Brij
Bhushan's case(') have been more than once misapplied
and misunderstood and have been construed as laying
down the
wide proposition that restrictions of the
nature imposed by section 4(1) (a) of the Indian Press
(Emergency Powers) Act or of similar character are
outside the scope of article 19(2) of the Constitution
inasmuch as they are conceived generally in the interests of public order.
Sarjoo Pro sad J. also seems to
have fallen into the same error.
The question that arose in Ramesh Thapar's case(')
was whether the impugned Act (Madras Maintenance
of Public Order Act, XXIII of 1949)
in
so far
as it purported by section 9 (1-A) to authorise
the
Provincial Government "for the purpose of securing
the public safety and the maintenance of public order,
to prohibit or regulate the entry into or the circulation,
sale or distribution in tJhe Province of Madras or any
part thereof any document or class of documents" was
a law relating to any matter which
undermined
the
security of or tended to overthrow the State, and it
was observed that whatever ends the impugned Act.
may have
been intended to subserve and whatever
(!) [1950] S.C.R. 594.
(2) [1950] S.C.R. 605.
."--
·-
~ . __ .,
S.C.R.
SUPREME COURT REPORTS
659
1952
The State of
Bihar
v.
aims its framers may have had in view, it:SJ application
and scope could not, in the absence of delimiting words
in the statute itself, be restricted to those eggravated
forms of preiudicial activity which are calculated to
endanger the security of the State, nor was there any
guarantee that those authorized to exercise the powers
under the Act would in using them discriminate between those who act prejudically to the security of the
State and those who do not. Section 4(1)(a) of the impugned Act, however, is restricted to aggravated forms
of prejudicial activity.
It deals specifically with incitement to violent crimes and does not deal with acts
that generally concern them.selves with the maintenance
of public order. That being so, the decision in Ramesh
Thapar's case(1) given on the constitutionality of section 9 (1-A)
of the Madras Maintenance of Public
Order Act has no relevancy for deciding the constitutional.ity of the provisions of section 4(1) (a) of
the
Indian Press: (Emergency Powers) Act.
Towards
the
concluding portion in Ramesh Thapar's Judgment(1)
it was observed as follows :-
Shailabala Devi.
- .
"We are therefore of opinion that unless a law
restricting freedom of speech and expression is directed
"
solely against the undermining of the security of
the
State or the overthrow of it, such law cannot fall
within the reservation under clause (2) of article 19,
although the restrictions which it seeks to impose may
have been conceived generally in the interests of
pub~
lie order. It follows that section 9(1-A) which authorizes imposition of restrictions for the wider
purpose
of securing public safety or the maintenance of public
ordet falls outside the scope of authorized restrictions
1
under clause (2), and is therefore void and unconstitutional."
The restrictions imposed by section 4(1) (a) of the
- Indian Press (Emergency Powers) Act on freedom of
speech and expression are solely directed against
the
undermining of the security of the State or the over-
~
~·
throw of it and are within the ambit of article 19(2)
(1) [1950] S.C.R. 594.
Mahajan/.
1952
The State of
Bihar
v.
Shailabala Devi.
Mahajan /.
660
SUPREME COURT REPORTS
[1952]
of the Constitution.
The deduction that a person
would be free to incite to murder or other cognizable
offence through the press with impunity drawn from
our decision in Romesh Thapar's case(') could easily
have
been avoided as it was avoided by Shearer J.
who in very emphatic terms said as follows :-
"I have read and re-read the judgments of the
Supreme Court, and I can find nothing in them myself which bear directly on the point at issue, and
leads me to think that, in their opinion, a restriction
of this kind is no longer permissible."
Be that as it may, the matter is now concluded by
the language of the amended article 19(2) made by
the Constitution (First Amendment)
Act which
is
retrospective in operation, and the decision of the
High Court on this point cannot be sustained.
Mr. Basant Chander Ghosh contended
that the
amendment made in article 19(2) of the Constitution
with retrospective operation was
repugnant to article 20 of the Constitution inasmuch as it declared a
certain act an offence which was not an offence at the
time when the act was committed. This contention is
untenable. The respondent is alleged to have violated
the provisions of section 4(1)(a) of the Indian
Press
(Emergency Powers) Act which was a law in force in
the year 1949 when the offending pamphlet was published. She has not been convicted of any
offence so
far and is not being again convicted for the same by
reason of the amendment in article 19(2).
Article
2(}
has no application whatever to the
present
case.
Article 19(2) empowers a legislature to make laws
imposing reasonable restrictions
on
the fundamental
rights conferred under article 19(1) of the Constitution.
It does not declare any acts which were not offences.
before as offences with retrospective effect.
Moreover,
in the year 1949 the respondent was not possessed of
any fundamental rights which
could be said to
have
been contravened by the amendment.
Though, as I have said above, the High Court 1s m
error in the finding that the provisions of section 4(1)(a)
(1) [1950] S.C.R. 594.
J.,. • ._. -,
' -
~. -·
,
_,,
.. -
..
,
'
S.C.R.
SUPREME COURT REPORTS
661
of the
Indian
Press
(Emergency Powers)
Act are
repugnant to the Constitution, its judgment has to be
maintained as it is also in error in holding that the
pamphlet in
question fell
within
the mischief of
section 4(1) (a) of the Indian
Press
(Emergency
Powers) Act.
The document is written in high-flown Bengali language and contairu; a good deal of demagogic claptrap
with some pretence to poetic flourish.
It enunciates
certain abstract propositions in
somewhat
involved
language and it cannot be followed except with considerable effort.
The High Court held that the document offended against the provisions of section 4 ( 1) (a)
inasmuch as certain parts of it contemplate a bloody
and violent revolution and that the central theme that
runs through the whole gamut of the offending pamphlet is that author is anxious
to
bring
about
a
bloody revolution and change completely the
present
order of things by causing a total annihilation of the
persons and the policies of those who according to
him are in the opposite camp.
Particular reference
was. made to the following passages in the writing
which in the opinion of the learned Judges
support
that conclusion.
The first of these passages is in these
words:-
"Oh thou foolish oppressor, you want
to
cause
abject terror in me with your red eyes and full
throated voice-do that, I am not afraid ...... My protest is against parochial national politics."
Another passage reads thus :-
"Death is my secret love ; poison i s my
drink ;
the flames of fire are my sweet breeze; the wailing of
a hundred breaved childless mothers is just a tune in
my flute ; the weeping of widows at their widowhood
is just a rhythm of my song."
The next passage referred to is in these terms :-
"I am the cremation ground.
I am the bloodthirsty goddess
Kali who lives and moves about in
the cremation ground. Plague or famine is my great
joy ...... I am thirsty, I want blood, I want revolution,
6-7 S.C.l./71
1952
T lu State •l
Bihar
v.
Shailabala Devi.
Mahajan f.
1952
The State of
Bihar
v.
Skailabala Devi.
Mahajan /.
662
SUPREME COURT REPORTS
[1952)
I want faith in the struggle. Tear, tear the chain of
wrongs; Break thou the proud head of the oppressor."
Reference was also made to a passage in which the
writer desires that his cries should be heard by people
far and near, that his call should be hearkened far far
away. across the hills, the jungles, across the rivers and
rivulets and all those who hear should come forward to
join .the ranks in destroying the oppressor and in which
he claims that he is the messenger of death, . that his
revolutionary song signals the door of each of the
listeners and signals to them to come out if they
have life, if they have health, if they have courage to
come and dash to pieces those who commit oppression
on the mother, and he says that with the blood of
those followers kt the revolution grow.
It winds up
with an invocation to the readers in these terms :-
"If you are true, if you ai:e the gift of God, if you
~re not a bastard, then come forward with a fearless
heart to struggle
against
the oppressors' improper
conduct, oppression and injustice. We should
no.t
tolerate wrongful oppression. Oh, thou the people with
the burning pain of thine heart burn the heart of the
oppressive, high-handed
oppressor.
Let all wrongs,
all high-handedness, all oppressions,
all tyrannies be
burnt in the flame."
It seems to me that the learned Judge~ of the High
Court took this writing too seriously. It did not
&serve that consideration. It is some kind of patch-up
work, with no consistency or cohesion between its
different parts. Portions of it are unmeaning nonsense
and in other parts it .talks of revolution in the abstract.
There is no appeal to anybody in particular
or
for
any known or specific cause. No mention is made of any
specific kind of oppression or injustice that is intended
to be remedied. The desire is to change the face of
the earth by ending a!J oppression, tyranny and
injustice. There is no evidence whatsoever for connecting
this pamphlet with any agitation or movement at the
time it was written in tl1at locality.
I have read
the
writing several times anc\ I tl ink that Mr. Ghosh
is
•
'
. -
·.
'
- __.
•
)
•
663
right wll;~n 4e s;iys tha,t the: paμiphkt contains merely
l~i~
empty slogans, carrying no particular 111eaning except
'[he Siqte. of
some amount of figurative expression or language \JorBihar
rowed at ranqom from various authors with a touch
v.
of poetic flourish about it.
Writings of this c:;haracter Shaila,bCifa 1)evi.
at the present moment an\} in
~he
present
backAja~ai4~ /.
ground of our country neither excite nor have ~he
tendency to excite any person from among
the
cl~ss
which is likely to reaCl a pamphlet of this naf:1Ire,
They wjll necessarily be
equ~ated, people.
Such
writings leave their reac:lers cold and nobody takes them
seriously.
People lal.:Jgh and scoff at such stuff as
they have become too famili<1r with it and such writings have lost all sting.
Any non descript person who
prom_ises tq chaJ1ge the ord<;r of things by bloody
revolution and assumes the role of a new Messiah
is
~erely the' li!4ghingcstock of hi& readers and creat~s an
a,dverse
impressio!l
against
hiμiself,
rather
than
succeeq in stirring up any excitement in the minds
of the readers.
Rhetoric of this kinq might in conceivable cin;ui;ns.van1=es inflame passions as, for example, if :i.ddressed tq an: excited mob, but if such
exceptional circumstan:ces exist it was for the State
Govemment to establish the fact. In the absence of
~y s4ch pnmf we must assume that the pamphlet
would be rea~ by educateci persons in the quietness of
~heir hotμes or in other places where the atmosphere
i~ normal..
~ wo4ld therefore hold, in the words of my
bg)tlier Bose in 8hagwati Charan Shukla v. Government
of C~ P. & J3.erar(1), that though the pamphlet in question
uses extravagant language and there is in it the usual
crude emotional appeal which is the stock-in-trade of
the demagogue as well as a blundering and ineffective
attempt to ape the poets, that is all, and there is
nothing n:mre in it. The time is long past when writings qf tpis kind can in normal circumstances
excite
people t() cotn1Uit crimes of violence or murder or tend
to ex\:ite ;μiypody to commit acts of violence. Again,
the
lap.~uage employed is full of
mysticism
and
(D I.L.R~ 1946 Nag. 865.
86
7-7 S.C.T.171
1952 -
The State of
Bihar
v.
S/Jailabala Devi.
Mahajan f,
664
SUPREME COURT REPORTS
[1952]
cannot be easily understood and it creates no impression of any kind on any person.
In order to determine whether a particular document falls within the ambit of any of the clauses
of
section 4 ( 1), the writing has to be considered as a
whole and in a fair and free and liberal spirit, not
dwelling too much upon isolated passages or upon a
strong word here and there, and an endeavour should
be made to gather the general effect which the whole
composition would have on the mind of the public. Expressions which are the stock-in-trade of political demagogues and have no tendency to excite anybody, and
exaggerations in language cannot lead to that result.
The learned Government Advocate placed reliance on
the decision of Harries C. J. in Badri Narain v. Chief
Secretary, Bihar Government(').
The learned
Chief
Justice therein held that in order to show that certain
words fall under section 4(1)(a) it is not necessary
to show that the words tend to incite or to encourage
the commission of a particular offence or offences and
that it is sufficient if they tend to incite to or to
encourage the commission of cognizable offences of
violence in general. In that case, a poem entitled
"Labourers, the mainstay of the world" began by
emphasising that labourers are the mainstay of the
present world and then proceeded to describe their
unfortunate and pitiful lot.
In a subsequent portion
the author stated that though speechless today, when
organized, the labourers will be as powerful as millions
and this portion of the poem ended with these words :
"Why are you helplessly tolerating the exploitation
of your masters."
The remaining line.s, were as follows :-
"Labourers, raise now the cry of revolution. The
heavens will tremble, the Universe will shake and the
flames of revolution will burst forth from land and
water. You who have been the object of exploitation,
now dance the fearful dance of destruction
on
this
earth ; truly,
labourers,
only
total
destruction , will
(2) A.LR. 1941 Pat. 132.
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-
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S.C.R.
SUPREME COURT REPORTS
665
create -a new world order. and that will bring happiness to the whole world."
It is quite clear that here an appeal was made to
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. Any observation made about
this
writing can have no apt application for the determination of the present case.
The learned Chief Justice
in the concluding part of the judgment very pertinently pointed out that a commonsense interpretation
must be given to the document complained of,
the
question to be answered always being, what impression will the documents or words give to a man of
ordinary commonsense. My answer to this query in
the pres,ent case is that the document read at first
sight is not intelligible unless it is explained to that
man of ordinary commonsense by a learned person
and hence it can by itself create no impression of any
kind on such a person. After the writing is explained to such a man, he will merely
laugh at it and
throw it· in the waste paper basket without taking it
seriously. He will refuse to believe that a person of
this kind can create a new world order by appealing
to a bloody revolution.
As I pointed out in my judgment in Harkrishan
Singh v. Emperor(1), the use of such words as appear
in this document creates no impression on the mind
of any reasonable
reader.
That case dealt
with
clause (d) of section 4(1), but: the principle
underlying it also applies
to the construction of writings
which are alleged to fall under section 4(1)(a). I do
not mean to suggest or to lay down as a general proposition that some of .the words used in the pamphlet
in question in the context of any other writing would
not fall within the mischief of section 4(1)(a). Certain
parts of the pamphlet, if read as isolated passages,
may have the tendency to excite
people
to commit
(I) A.LR. 1946 Lah. 22.
1952
The State ~f
Bihar
·v.
Shailabala Devi.
Mahajan f.
195~
The $we of
Bi bar
v.
Shail~~a/a l)evi.
SQP~EME COURT REPORTS
[1%2]
crimllll of viol~nc, but that is not the effect if the
pamphlet is read in its entirety.
The result is th?t I would dismiss the appeal
but
in the circumstances would make no order as to costs.
The State Government has succeeded in its contention
that section 4(1) (a) of the Act is constitutional and
that w~s the real ground on which it came to this
Q:!urt.
)?P,.T,\NJAL!
SAsTR!
<;::. J.=l ;igree with \he judgment
rnst
deli'v"ecl gy
μiy
\earnei:\ brother Mahajan J,
ancl jiav~ not44lg to add.
MuKHERJEA J.-I . concur in the jud11ment
delivered by my learned brother Mahajan J. and I wpulcl
like to say a few words, regarding the
publication
itself which led to the demand of security by
th~
Government under
th~ provision of the Indian
Press
(Emergency) Act.
Tl}, point thi!t
fNWr~s qmsideration is, whether
the wqrds contained in th, impugned publication
are
of th~ natur~ c!esgribed jμ section 4(1) (a) of the Act;
qr in other wprds whether they incite to or encourage
or tend to incite to or to encourage the commission of
any pffence of murder or any cognizable offence involving violence.
It is well settled that to arrive at a
decision on this point, the writing is to be looked at
as ;i whole: without laying stress on isolated
passages
or particular
expres~ions used here and there, and that
the court should take into consideration
what
effect
the writing is likely to produce on . the m'ind; of the
readers for whom the pμbljcation is intended. Account
shoqld alsl) be taken of the place, circumstances
and
occasion of the publication, as a clear appreciation of
the background in which the words are used is of very
great assistance in enabling the court to view them
in
t)ipir proper perspective.
·
Th~ )eaRet in question 1s entitled
"Sangam"
or
,_ -
'\ • '
--
5trμggle. It is written in high-flown Bengali prose
v
with
~ ll!rge mixture of poetic expressions borrowed
at random from the writings of some welloknown
-.
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S.C.R.
SUPREME COURT REPORTS
poets of Bengal.
The object of the writing as far as
could be gathered from the document is tq give a poetic
or idealistic picture of what is meant and eonnotated
by "struggle" or revolution. The aim and end of
"struggle", as stated in the leaflet, is to wipe out
''oppression", injustice or wrong" which is "pervading
all over the world from the past to the future"; and it
is only after all wrongs, injustice and oppression have
periilied that a new world could
be built up.
This
seems to be the main or central theme of the composition, clothed, though it is, under much incoherent
talk and seemingly meaningless
utterances.
There
is no indication throughout the writings as to
what
kind of oppression, injustice or wrong the author had
in mind. Far from referring ,to grievances of any
specific character, the writer does not even hint
at
such general causes of discontent as political inequality, economic exploitation or class warfare which
are
the subject-matter of agitation in many parts of
the
world. The leaflet does not give indication also of any
unpopular measure
or act
of
injustice
affecting
the minds of the people in the particular
area
where it was published and within which
it was
intended to be circulated. In or.e part of the document the following words are found to occur :
"If mother be true, let no disgrace spread in
the
name of the mother. If mother tongue be equal to
mother, then the said language is your most
revered
goddess. Do· not allow disgrace to spread in her name".
It is not the case of the Government and there is no
statement or affidavit to that effect, that the passages
here have any reference to the language
controversy
which agitated and probably is still agitating this
particular district. In another part of the document
the expression "narrow parochial politics"
has
been
used, but here again the Government has not made
any attempt to explain, what .this expression
could,
in the particular context, mean or refer to. As no acts
of injustice or oppression are actually mentioned
in
the document, it: is difficult to say
who the "oppressors"
a.re, whose "proud heads" the author asks his
Last.
1'/it Stou of
Biltu
••
S/J11illlbolt1 Dni.
•
1952
The State 'of
Bihar
.v.
Shailabala Devi.
668
SUPREME COURT REPORTS.
[1952]
readers to ·break. It is quite clear that the "oppressor"
mentioned here is neither the Government nor the
party in power, nor has it any relation to any
particular class or persons or a sect or community which
might be harassing others and trampling
upon their
rights. Ii may be, that to attract the operation of
section 4(1)(a) of the Indian Press Act, the incitement to murder or violence need not be specifically
directed against particular individuals or class of persons ; but when the whole talk is about injustice or
operation in the abstract, which is stated by the
author to be in existence from ,the beginning of time
and when in hyperbolic language a hope is expressed
of establishing a better and a cleaner
world
through
struggle, sweet and blood, the words used
may
not
improperly be looked upon as an effusion of poetic
fancy which, having no relation to actual facts can
have very little potency for doing mischief. I will now
proceed to examine the contents of the pamphlet in
derail.
·
The writer begins in an affected poetic vein and describes, in language, to which it is difficult to attach
any rational meaning, what "struggle" or revolution
is. The "struggle" which is personified in the article
introduces itself in the following manner :
"I am not wealth, nor popular strength, not the
people nor fame ; ... I am not joy nor a brag, nor the
timid look of the beloved's eyes .... I am not mother's
affection, nor sister's love".
If these words convey any sense, they can only mean
that the struggle or revolution which the writer wants
to depict is something different from what we ordinarily associate with our social life and happiness ; it
is a negation of all natural human ·feelings and senti-
.ments. The next paragraph says in equal enigmatical
language what "Sangram" or "struggle" actually is. "I
am old antiquated history" thus the article proceeds ;
"I am time eternal, I am the future, the present and
the past, in my heart is written the story of the past,
the problems of the present and the · voice of the
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S.C.R.
SUPREME. 'COURT REPORTS
669
future".
I do not know whether this is a poetic way
of depicting the entire life process which is said to lie
through struggle and guide our evolution in this planet.
Struggle, according to the author, is coeval with
time
and eternity.
In the next paragraph the writer passes on to say
with many repetitions of the word "wrong" that "it
is wrong which is pervading all over from the past to
the future", and it is this wrong that is to be righted
by the struggle. The struggle here is likened for reasons
best known to the author to a piece of torn grass in the
middle stream of a turbulent river, and to a grain of
dust thrown in the face of a cyclone. "It is dishonour,
unhappiness, endless pain .. "
It is again likened sue-
. cessively to the frown of the beloved, to famine, storm
and evil days. The call is sent to everybody
to come
on "where the sky is cracking and the endless rough
and thorny path is shrouded in darkness"
and assist
in building up a new world.
Many of the expressions
used here are taken verbatim from the writings of
some well-known Bengalee authors, though they sound
nothing but a rigmarole in the present context.
The next paragraph begins with the word "revolution".
Struggle is revolution and through struggle and
revolution the world is to be built anew. It is then
said that· "death is my darling and death is the only
truth in this world". If one has to die, there is no
sense in dying of illness. Let a man choose an honourable
death by
standing against
oppressors.
Quite
abruptly the author brings in the name of Sri Subhas
Chandra Bose in the midst of this talk and asks his
readers to listen "far far away across the hills, across
the jungle, across the rivers and rivulets the
call
of
Subhas Chandra Bose, the greatest revolutionary leader
of the world". The people are asked not to stop until
the objective is
attained. A.gain it is said "I am
struggle, I am revolution .... I am a Hindu, I am a
Mussalman, I am a Christian, I am a Jew, I am a
Keduin, I am severed from all religions by the fruits
of my action in previous births".
Without the least
attention to any sequence of
thought,
immediately
1952
'The State of
Bihar
v.
Shailabala Devi,
Mukherjea /.
1952
"f he State of
Bihar
v.
Shailabala Devi.
Mukherj•a /.
6'7J)
SUPREME COURT REPORTS
['1952]
afrer this, the imaginary pppressor is addressed by
the author as follows :
"Oh you foolish oppressor you want to terrify
with your red eyes, I fear not."
The author, or rather the personified "struggle"
which purports to speak, then repeats the well-known
words of poet Tagore and says 'that he does not seek
salvation through renunciation ;
he wants that salvation which lies in joy amidst innumerable dangers and
dijliculties. The idea of finding joy in all that is hated,
avoided and dreaded in this world is elaborated in the
passages that follow. "Death" it is said "is my
secret
love, poison is my drink, the flames of fire are
~y
sweet breeze, the cry of childless mothers a tune
m
my flute and the weeping of widows a rythm of my
song".
In this vein the author goes on conjuring up
all the uncanny and weird things in the world and
associating them with struggle. "I am not joy, I am
the remnant of the dying cfies ......... I am the bloodthirsty goddess Kali who lives and moves about
in
the cremation ground. I want blood .......... Break
the proud head of the oppressor.
I bathe in flames
............ Thunder is my kiss of affection .......... I do
not understand myself.
I do not know myself.
I do
not recognise
myself, still I want revolution,
still
I
want struggle". T!ie learned Judges of the High Court
laid very great stress on these passages which in their
opinion constitute a direct incitement to bloody
revolution ; and that is also the line of argument adopted
l:Jy Mr. Mitter who appeared before us on behalf of the
State. It has been argued by Mr. Ghosh appearing
for the respondent that the "struggle" which the author
has depicted and which he aims at is a non-violent
struggle and the blood that is to be shed is the blood
of those
who are called l!pon to resist oppression and
miustice.
On the other hand, it is argued on behalf
of the State that the passages quoted above can
only
mean th:i.t it is a bloody and violent revolution
which
could carry men to their desired end. In my opinion,
neither of these contentions furnish to us the proper
I)lethod ~£ approach to the
question which requires
,._
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S.CJL
SUPREME COURT REPORTS
decision in the present case. We would have to look
at the article as a whole find focus our attention on
what can be regarded to be its central theme or
purpose.
As has been said
already, what the writer
wants is to draw an ideal picture of "struggle" o:r revolution quite unconnected with any particular
place,
or any particular political or
social
environment.
Injustice or oppression exists, according to the author,
from the very dawn of time and so also does struggle
or revolution.
It is an integral part of the world process and is a sort of irrational or blind impulse.
This
is expressed by saying "I do not understand myself,
I do not recognise myself, still I want revolution". In
painting death or war, the artist would
naturally
choose some uncanny associations.
The .trappings of
revolution, as the author paints it, are all the fearful
and hideous things in this world. It is linked up
with thunder and storm, fire and devastation, cataclysm, famine, danger, destruction and death.
It is
immaterial so far as this ideal picture is concerned
whether the blood that is spoken of is the blood of the
oppressor or of the oppressed, and whether the struggle
is violent or pacific. The goddess Kali in the
Hindu
mythology is the goddess of destruction and death, but
she is the benign goddess also whose protecting hands
ward off all oppressions, danger and calamity. That
is the reason why revolution or struggle is assimilated
to this goddess.
It cannot be denied that in painting
this picture of "struggle" or revolution the author has
used very strong words ; but they would not be unnatural if it is only an ideal picture that the author
really ·desired to paint. If however, it can be shown
that under the cloud of these general enigmatical
words something concrete and tangible lies hidden,
that the "oppression" and "oppressor" are not imaginary abstractions but are real things not unknown
to
the people to whom the article is addressed' and there is
in fact a grievance agitating the popular mind, no
matter whether it is well or ill founded, against which
the author desires to inflame public opinion; then
even though he uses veiled or covert language, there
1952
Tire Statt! •f
Bihllr
v.
Skm'lahala Detli.
M111(/1erjea f,
:1952
.The State of
Bihar
v.
Shailabala Devi.
. Muk.herjea J.
.,
.
672
SUPREME COURT REPORTS
[1952]
can be no doubt that the article would come within
the purview of section 4( 1) (a) of the
Indian Press
Act.
But the difficulty is that the Government has
not made any attempt to establish any of these
facts.
Without knowing the attendant circumstances and the
actual background of the publication, it is not possible
for us to ascertain the real intention that lies behind
the writing ; and absolutely
no materials have been
placed before us by the Government which
might
enable us to find out what in reality was the substance
behind this camouflage of words, if camouflage it
actually is.
The rest of the article proceeds in the same hyperbolic and enigmatical style. There is repetition atl
nauseam of the same stock phrases and expressions.
It goes on to say "I am the messenger of death.