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Mufti Fakkhrul Islam vs Emperor

High Court Of Judicature at Allahabad|17 December, 1942


JUDGMENT Iqbal Ahmad, C. J.
1. This is an application in revision by Mufti Fakhrul Islam against his conviction under Rule 38(1)(a) and (5) read with Rule 34(6)(e) of the Defence of India Rules. The facts that led to the prosecution of the applicant are as follows : With a view to celebrate "Pakistan Day", public meetings were organised and held on 23th March 1941, at numerous places under the auspices of the Muslim League, and one such meeting was held in Mohammad Ali Park in the city of Allahabad. Mufti Fakhrul Islam, the applicant who is a lawyer by profession and is the president of the local Muslim League, delivered a speech at the meeting in the course of which he warmly advocated the Pakistan scheme sponsored by the Muslim League and made certain observations, one. of which is the subject of consideration in the present case.
2. A shorthand report of the speech was taken down by a shorthand reporter who was deputed to, and was present at, the meeting and on the basis of that report information was laid before a Magistrate of the first class of Allahabad against the accused on 24th April 1941, with respect to an offence under Rule 38(1) (a) and (5), Defence of India Rules. Altogether five passages in the speech were made the subject, of charge against the applicant. The trial Magistrate held that four of the passages did not, either singly or taken together, constitute the offence of exciting communal hatred and alarm within the meaning of Rule 34, Sub-rule (6) (f) and (g), Defence of India Rules and he, accordingly, acquitted the applicant with respect to those passages. He, however, held that one of the passages, to be presently quoted, constituted the offence of sedition within the meaning of Rule 38(1) (a) and (5) read with Rule 34, Sub-rule (6)(a), Defence of India Rules, and accordingly convicted the applicant with respect to that passage and sentenced him to rigorous imprisonment for six months and to a fine of Rs. 200. On appeal the Sessions Judge of Allahabad, maintained the conviction of the applicant, but reduced the sentence to three months' simple imprisonment and Rs. 100 fine. The passage that was the subject of the charge of sedition, as reported by the shorthand reporter, runs as follows :
But the British, whose policy has all along been to divide and rule, always sided with the Hindus, showed favours to them and encouraged them, for which reason the Hindus always thought against the Muslims, in every way tried to trample over their rights and always encouraged the schemes of shuddhi of which you saw an example during the Congress regime. No source was left untapped in order to show cruelty to the Muslims. For this very reason the Muslims were forced to make Pakistan their goal.
3. At the trial the applicant challenged the accuracy of the shorthand reporter's report, and furnished to the Court his own version of this portion of his speech which reads as follows :
The strictness and high-handedness practised against the Muslims during the Congress regime are still fresh in the memory of everyone. The British Government whose policy it has been not to let the two big communities in India unite and who have been acting according to the principle 'divide and rule' continued to look on quietly at the Congress high-handedness. The Government continued to show partiality to the Hindus and both of them applauded each other. Had the Governors used the powers granted to them with respect to the minorities, such high-handedness could never have been possible. This encouraged the Hindus and made them bold, while the rights of the Muslims continued to be trampled upon. Schemes, of which you have seen examples during the Congress regime, were enforced during the period of their Government. The Muslims were forced to fix Pakistan as their goal.
4. It would be noted that there is not much difference in the trend and general effect of the two passages quoted above as both sub-stantially impute to the Government the principle of "divide and rule" as its guiding policy. The cardinal question that arises for consideration in the present case, therefore, is whether the passages quoted above established the charge of sedition against the applicant. With regard to the circumstances in which the speech was delivered and its general effect upon the audience and the intention of the accused in making the same, the Sessions Judge, in substantial agreement with the trial Magistrate, made the following observations :
It appears that the utterance did not actually arouse any particular enthusiasm. In fact the whole speech seems to have 'fallen rather flat.' But that is not directly the point. The point is what was the probable effect? The learned Magistrate has found that there was no intention on the part of the appellant to excite disaffection etc., and I agree that it has not been shown that there was any such specific intention on his part. The appellant has not been found to have committed an offence under Rule 34(6)(f) though he was charged with such an offence. It appears to me that the trend of his speech was communal rather than anti-Government. This criticism of the Government's policy was incidental rather than direct, and subsidiary to his main theme, which is the safeguarding of the rights of Musalmans by the adoption of Pakistan, the sovereign remedy against anticipated oppression by the Hindus.
5. Now, it is well settled that the essence of the crime of sedition consists in the intention with which the language is used, and that such intention has to be judged primarily by the language used. In arriving at its conclusion as to the intention of the accused in making a speech, the Court must obviously have regard to the class of audience to which, and the circumstances in which, the speech was made, and must then decide as to the probable effect of the speech. It has been laid down in a number of cases that the speech must be read as a whole, "in a fair, free and liberal spirit" and that one "should not pause upon an objectionable sentence here or a strong word there." They should be dealt with "in a spirit of freedom" and "not viewed with an eye of narrow criticism." The ease should be viewed "in a free, bold manly and generous spirit" towards the accused. In Reg v. Burns (1864) 16 Cox. C. C. 355, Cave J., in his charge to the jury observed that sedition embraces everything, whether by word, deed, or writing which is calculated to disturb the tranquillity of the state, and lead ignorant persons to endeavour to subvert the Government and laws of the empire.
6. In the recent case in (1942) 5 F.L.J.F.C. 47, (Federal Report), Sir Maurice Gwyer C. J., after pointing out that the offence under sub-para, (e) in Rule 34(6) of the Defence of India Rules is the same as the offence of sedition as defined in Section 124A, Penal Code, has observed as follows:
Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.
7. In the light of the authorities quoted above I find it impossible to affirm the conviction of the applicant. The ideas underlying the passages quoted above are unfortunately in substance, if not in form, current in the political controversy in the country. I am far from holding that the language current in the political controversy of a country can never be made the subject of a charge of sedition; at the same time, I cannot overlook the fact that similar criticism of the Government as is contained in the above passages has, in the past, been made on thousands of occasions without exciting public disorder or inciting subversive activities. The dominant intention of the applicant in making the speech was to advocate the scheme of Pakistan and not to bring into hatred or contempt or to excite disaffection towards the Government established by law in British India. It is no doubt a fact that in support of the scheme advocated by the applicant he used an argument which caused a reflection upon the Government. The argument may be fallacious and its logic may be open to question, but this alone cannot justify the conviction of the applicant. The question to be considered is whether the intention of the accused in advancing the argument was to create a feeling of hatred and disaffection against the Government or to incite the audience to commit public disorder. I cannot but answer these questions in the negative. For the reasons given above, I would allow this application, set aside the conviction of, and the sentence passed on, the applicant and cancel his bail bond. The fine, if paid, will be refunded.
Dar, J.
8. The facts of this case are fully stated in the judgment of my Lord the Chief Justice and it is only necessary for me to shortly state them to bring out the point upon which I wish to make a few observations. The accused Mufti Fakhrul Islam made a speech in a public meeting in the city of Allahabad on 23rd March 1941 in which he somewhat warmly advocated a scheme for the political partition of India which has come to be popularly known as the "Pakistan." In the course of his speech he stressed the familiar argument that the scheme was necessary as a counter measure or as a balance of power to prevent Hindu misrule in those provinces where the Hindus are in a majority and to illustrate the danger of Hindu misrule he instanced the recent Congress Government of these provinces, and charged it with gross oppression of Mahomedans and also stated that the British Government whose policy is to divide and rule in pursuance of that policy, did not stop that oppression. The speech which the accused made was a long one; it contained many passages which might be regarded as exciting communal feelings; its main theme, however, was the actual or possible oppression of Mahomedans by the Hindus and its object was the assertion of Mahomedan right and not an attack upon the British Government. And as a part of general argument and subsidiary to the main theme of the speech occurred two passages which cast a reflection upon the Government.
9. Now the accused has not been convicted for an offence of exciting communal feelings, but he has been convicted of exciting disaffection and hatred against the Government. The offence of sedition as defined in Section 124A, Penal Code -- and, in this respect, there is no difference between the offence under the Code and under the Defence of India Rules -- consists in using language with intent to cause disaffection and hatred against the Government or to bring it into (contempt. It will thus be seen that both the intention of the accused and his language play a vital part in the commission of the offence and the intention of the accused is to be judged from the writing or speech as a whole and not from isolated passages and the effect of the language is to be judged having regard to the times and the conditions in which it is spoken or written and having regard to the effect which it produces or is likely to produce in the society to which it is addressed. In a recent case, (1942) 5 F. L. J. F. C. 47, decided by the Federal Court, Sir Maurice Gwyer C. J., has thus explained on page 57 the essentials of the offence ,of sedition :
Public disorder, or the reasonable anticipation or likelihood o£ public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.
10. There are no doubt two passages in the speech of the accused which east an aspertion upon the Government. But, unfortunately, the imputation which is conveyed by these passages is a part of the current political controversy of the country. And though I do not say that language current in the political controversy of a country can never be made the subject of a charge of sedition for something may turn upon the occasion on which it is used, the context in which it occurs and on the surrounding circumstances of the case, but ordinarily it should be difficult to found a charge of sedition upon ideas, sentiments and expressions which have become a part and parcel of normal political life of the country, and which do not excite people to disorder. There remains now the question of the intention of the accused. The dominant and manifest intention of the accused was to make out a case for "Pakistan") and not to create any anti-British feeling. In support of his theme he has employed an argument which casts a reflection upon the Government. It may be that the argument is unfounded in fact and its logic is open to doubt and challenge. But it cannot be said that the intention of the accused in using the argument was to create a feeling of hatred and disaffection against the Government or to bring it into contempt. Nor can it be said that the tendency and effect of his language necessarily was to incite his audience to disorder. In my opinion, this case does not come within the principles laid down in Niharendu Dutt v. Emperor ('42) 29 A.I.R. 1942 F.C.22 and the accused must be acquitted.
11. The application is allowed, the conviction of and the sentences passed on the applicant are set aside and the applicant is acquitted. The bail bonds are cancelled. The fine, if paid, will be refunded to the applicant.
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Mufti Fakkhrul Islam vs Emperor


High Court Of Judicature at Allahabad

17 December, 1942