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Judgment
Jenkins, J.—The accused is charged, first, with defamation under sec. 500, I. P. C., and secondly, with printing defamatory matter under sec. 501, I. P. C. The charges as set forth in the indictment are 18 in number. (Here His Lordship explained the various charges in the indictment to the Jury). It will appear from the charges that the counts Nos. 1 to 8 refer to offences committed against Kusum Kumari Maitra, Nos. 9 to 16, those against Heramba Chandra Maitra, as the husband o Kusum Kumari Maitra, while Nos. 17 and 18 refer to offences committed against both Kusum Kumari Maitra and Heramba Chandra Maitra, as members of the Sadharan Brahmo Samaj.
Sec. 500, as explained by sec. 499 of the Indian Penal Code, stands thus:--
Sec. 499. "Whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputations concerning any person, intending to harm, or knowing or having reason to believe that such imputations will harm the reputation of such person, is said, except, in the cases hereinafter excepted, to defame that person."
Explanation 4.--"No imputation is said to harm a person''s reputation, unless that imputation, directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or his calling or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."
Sec. 500. "Whoever defames another shall be punished with simple imprisonment, &c, &c."
Sec, 501 runs thus:--
Whoever prints or engraves any matter knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment, &c, &c.
The offences with which the accused is charged are the creation of the Indian Penal Code, and consequently the English cases to which reference has been made afford little or no assistance in determining the nature of the offences charged. The essential elements of the offence under the Indian Statute under sec. 500, are 1st, that the words which form the subject matter of the alleged defamation were intended to be read; 2ndly, that by these words an imputation was made concerning a person; 3rdly, that the imputation, directly or indirectly in the estimation of others lowered the moral or intellectual character of that person.
Under sec. 501, 1st, that the accused printed the defamatory matter; 2ndly, that the intention of the accused was to harm the person, or that he had reason to believe that it would so harm the person. A person is said to have known or to have sufficient cause to believe what the results of his action would be, when, as a matter of fact, it results as a natural consequence of his action.
In considering the offence with which the accused has been charged, it is necessary to examine what the relations between the complainant and the accused were both previous and subsequent to the poem appearing in the Hitabadi.
A brief history of the case. In 1836, the Brahmo Samaj came into existence. It is divided into three sects, the Adi, the Navabidhan, and the Sadharan Brahmo Samaj. The last of these was the result of a secession in 1878, and the complainant is a prominent member of that Samaj; he is also a promoter of the Social Purity movement.
In December 1894, there was a meeting of the National Congress at Madras, which was attended by the accused and the complainant; they both travelled on board the same steamer from Calcutta to Madras, in company with others, who proposed attending the Congress, and in the course of the voyage a discussion arose about the desirability of a certain gentleman who has been described as A. B., attending the Congress meetings. As a result, a protest was signed by several of the delegates on board the steamer, and amongst the signatories were the accused and the complainant. On arriving at Madras, some of these gentlemen, including the accused, withdrew their protest. Nothing further was heard of the protest till the second day of the Congress, when A. B. was about to address the meeting, and then objection was raised to his taking part in the proceedings, by an English lady, who, on her objections being overruled, withdrew from the meeting, and was followed by several sympathisers, the complainant being one of them. This led to an article on the 4th January 1895, in the Hitabadi, of which the accused is the Editor. In explanation of this and the succeeding articles it should be stated that the complainant is interested in the newspaper Sanjibani. It is contended on behalf of the prosecution that this article shows the hostile attitude of the accused towards the Brahmos, and that the expressions "flag bearers of taste," "Savants of taste." "Perversion of taste," point to an identity of purpose, if not an identity of authorship between the articles in question, and the poem, which is the subject-matter of this prosecution. The defence maintains that the attack in the article as also in the poem is not against the Brahmos, but is directed against "Purists." It is for you to decide which of these contentions should prevail. The next event is the article in the Hitabadi of the 18th January 1895. In this, it is alleged, that the complainant with another was present at an incestuous marriage whilst at Madras. This article does contain a reference to the Brahmos. The expression "Savants of taste" occurs in this article. It is said by the prosecution that there is a reference to the Brahmo doctrine of repentance in the following sentence :--" On (his) uttering one or two words of repentance, then he will perhaps become a God in the judgment of the Sanjibani, " and they contend that the doctrine of repentance is referred to in connection with the Brahmos as opposed to the Orthodox Hindus, and that the poem makes a similar reference in ridiculing the Brahmos. It is for you to determine the sense in which the passage had been used.
Then comes the article in the Hitabadi of the 26th June 1896, which also is relied on by the prosecution as an attack on the Brahmos. This article appeared shortly after the Provincial Conference held at Krishnaghur, which the complainant with another gentleman is alleged to have refused to join on the ground that a certain gentleman acted as the Secretary of the Reception Committee. In this article the complainant is referred to by name. It refers to a community and to the complainant, and contains the following sentence; --"Think of the character of certain men and women of your community also, while repeating "Om Tatsat." The only community mentioned in the article is the Brahmo community, and it will be for you to consider whether it refers to any other community.
In the article of the Hitabadi of the 10th July 1896, the Editor says, "Without saying anything to day regarding any speaker &c." The prosecution alleges that this was by way of prelude to the poem appearing in the Hitabadi of the 26th July 1896, it is further said that the accused, if the story put forward by him regarding the manuscript be believed, actually had it in his hands when writing the article which contained the aforesaid passage.
In the meantime a meeting of the Indian Association had taken place on the 3rd July 1896, and at this meeting the name of the accused had been proposed as a member of the Committee of that Association for the ensuing year. The complainant opposed the proposal, and his name was withdrawn. From the evidence of the Hon''ble Surendra Nath Banerji, it appears that the fact of this opposition by the complainant had been reported to the accused within a week of this meeting.
On the 24th July 1896, the poem, which is the subject-matter of the prosecution, was published. This issue of the Hitabadi contains also another paragraph, which the prosecution says shows the animus of the accused towards the complainant. It is said that the word "anutap" is here intended as in the poem to refer to the Brahmos, and that this article make it clear that the poem was directed as an attack against the Sadharan Brahmo Samaj, and that the writer had in view this section of the Brahmos when writing the poem. It is for you to judge whether that is so or not. On the 28th July 1896, correspondence passed between the attorney of the complainant and the accused.
In the reply sent by the accused, we have the first intimation of the attitude he took after the publication of the poem. Perhaps, this letter was not couched in language, most consonant with the attitude, it might be reasonable to expect would be assumed by one who had unintentionally injured the feelings of another, but it must not on that ground be taken as necessarily indicative of the accused''s guilt. On the 29th, the complaint was lodged in the Police Court.
In the Hitabadi, dated the 7th August, appeared an article containing what has been called the "Plum story:" the prosecution have laid some stress on this, but I think it right to warn you that you must not, from the production of this story, necessarily draw an inference adverse to the Defendant, however much you may deprecate his conduct.
Evidence has been given of the complainant''s marriage with a lady named Kusum Kumari. It has also been sworn by two witnesses for the prosecution that at one time it was remoured, though apparently without foundation, that this lady was engaged to Upendra Lal Mozumdar. There is no evidence, however, to show that this rumour ever reached the ears of the accused.
Regarding the poem itself, it is said by the defence, that the whole poem is not directed against any individual nor against the Brahmo community, but only a satire on ultra purists.
The attitude of the defence will appear from the following statement made on the 16th September 1896, by the accused in the Police Court.
That the abovenamed Srimati Kusum Kumari Maitra, through her husband, has complained in this Court, that I have defamed her by publishing a poem in my paper called the Hitabadi, entitled "Ruchibikar," which poem appeared in the columns of the said Newspaper on the 24th day of July of the current year.
That the prosecution alleges that the poem aforesaid contains allusions damaging to the character of the said Srimati Kusum Kumari Maitra, inasmuch as it attributes, according to the said prosecution, sexual immorality to the said Srimati Kusum Kumari Maitra.
That I submit that the said poem was received by me from a contributor to my journal aforesaid, the Hitabadi, and that although I am in possession of the name and address of the said contributor, I cannot, consistent with my honor as an editor, disclose the same, unless the prosecution guarantees that they will not prosecute the said contributor in a Criminal Court.
That I submit that, when I received the said poem and published it, I could not make out, and did not understand, that the said peom contained any personal allusion to anybody'', much less to the said Srimati Kusum Kumari Maitra, and I further submit that I am still under the belief that the said poem does not refer to anybody in particular.
That when, on the 28th day of July of the current year, I was informed by the complainant''s attorney, Babu Bhupendra Nath Bose, that the said poem was construed by the said Srimati Kusum Kumari Maitra and her friends to contain the aforesaid allusions to the character as wife, of the said Srimati Kusum Kumari Maitra, I at once published in the columns of the aforesaid Newspaper, the Hitabadi, a paragraph stating therein that I had no idea when I gave a place in my said journal to the said poem, that the said poem contained any personal allusion to anybody.
That I repeat what I have stated in the last two foregoing paras hereof, namely, that I did not know at the time of the publication of the said poem that it contained any personal allusion to the said Srimati Kusum Kumari Maitra or to anybody, that I am still of the same opinion, and that, further, if any person or persons has or have construed the said poem as a covert attack on the character as wife, of the said Srimati Kusum Kumari Maitra, I express my sincere regret for the same, and I further enter a most emphatic denial that the said poem could possibly bear such a construction, or that I ever did or could have desired or intended that such a construction should be put thereon.
It is not stated anywhere that the accused did not know the name of the complainant''s wife. If this omission was intentional, one cannot help feeling that it is unfortunate, as, if this name was in fact unknown to the Defendant, one might have expected that this would have been at once slated as showing an absence of malicious intention on the Defendant''s part. It would not, however, be safe to place any great weight on this or on the remarkable absence of any adequate expression of regret.
The poem is alleged to have been sent in manuscript which has been filed by the defence, and to have been accompanied by the post-card, which also forms an exhibit in the case. The Sub-Editor of the Hitabadi speaks to that. The post-card and the manuscript, it is sworn, arrived at the office of the Hitabadi on the 3rd July, long before the accused knew of the opposition by the complainant to the former''s name being put up as a member of the Committee of the Indian-Association. The name of the correspondent has been torn off from the bottom of the post-card and of the manuscript. The witness gave the name of the correspondent (an objection had been raised by the defence that the prosecution was not entitled to get the name of the correspondent, but this objection was overruled). The same witness, said he, could not give the address or any other particulars regarding the correspondent, and that no record had been kept in the office, which could throw any light on the subject. He also said the name Jogindra Nath Mitter or Miser was very common in Bengal. How common that name is, it is for you to decide, and also as to whether the name could be contained in the space torn off from the post-card.
The points in the poem on which the prosecution relies are the following :--
(1). The heading of the poem "Ruchi-Bikar." It is said that the word does point towards an attack on the Brahmos. This word has been used in the previous issues of the Hitabadi in attacks against that community.
(2). "Kusume." It is said that this word is used in the singular and in an individual sense, and refers to "Kusum Kumari Maitra."
(3). The prosecution further relies on the collocation of the words "Kusum," "Heramba" and "Upendra," and says that even if the name of "Upendra" be left out, the name of "Heramba" is a curious coincidence, when there are other words which could have been used without altering the metre. The accused has been known to be hostile towards the complainant. (The Jury was reminded that this was the prosecution story).
(4). "Tar" is singular, and so "Kusum" must be taken to have been used in the singular.
(5). "Bihar" has been used in the sense of "sexual intercourse."
(6). "A," has an individualizing effect and means "this," and so has a singular signification.
(7). "Bhogya" used in that context implies sexual intercourse.
(8). "Aghrata Kusum" means an impure flower as opposed to "anaghrata Kusum," which is used to signify a pure virgin.
(9). "Poutalik" points to the Brahmos.
(10). "Anutap," "Om Tatsat," "Shanti," and "Nirakar," These are expressions popularly connected with the Brahmos The prosecution does not deny that they are in use amongst the orthodox Hindus also.
The prosecution further says that with a large choice of Hindu Gods, it is more than mere accident that the choice should fall on the names of Heramba and Upendra which are used as names of individuals in Bengal,
It is also said that amongst Hindus the idea of the same flower being successively used for the worship of two Gods is absurd, and that therefore individuals must have been referred to.
Then there is a negative argument put forward by the prosecution. It, admits that the 8th and the 9th stanzas are inconsistent with the idea of "Kusum" referring to an individual, but says they are used as a blind.
The defence puts forward the following interpretation as to the poem:--
(a). Taking the poem, as a whole, it says it is an attack on the "ultra-purists" or "puritan rigorists," and not on the Brahmos as a class.
(b). Going into details it says that "Kusum" if used in the plural or generic sense makes the whole poem consistent.
"Tar" also means "theirs," and instances from books have been given where "tar" has been so used.
One witness says that "Tahe" used in the locative case negatives the idea of sexual intercourse.
"To-day on Ganapati''s neck" indicates that a garland is meant, which would preclude the idea of "Kusum" used in an individual sense.
But the prosecution says "garland" would not preclude an individual flower.
"Prasun" is not used for flower, but means flower bud, and that in the poem different stages of flower has been described.
"Phuladal" means race of flowers, and the individualizing view does not bear weight.
"Kusum dame" and "Kalika" forbid the idea of Kusum having been used in an individual sense.
The defence relies very strongly on stanzas 8th and 9th. It says these, stanzas preclude the idea of "Kusum" having been used in an individual sense.
"A" is used with a plural signification, e. g., "A dooi."
According to the case for the prosecution the imputation is against--
(1) Kusum Kumari.
(2) Heramba Chandra Maitra.
(3) Both as members of the Sadharan Brahmo samaj.
These are distinct charges with respect to separate offences, and the accused may be found guilty of anyone or more of these charges.
You must look at the whole poem, and must take it as a whole.
It is absolutely necessary that this should be done, for one word may alter the whole character of a statement otherwise apparently defamatory. By way of illustration I may refer to a case where matter was published, which was clearly libellous; but at the end of it was placed the word "Fudge," from which it was contended, though in the particular case unsuccessfully, that the presence of that word deprived what preceded it of its libellous character.
As to the translation of the poem put in by the prosecution, it has been prepared by the Interpreter of this Court. He has been examined at the instance of the Court. He has said, it is a correct translation, and has teen corroborated by Rajendra Chandra Sastri. During the examination of this witness, the Court expressed its opinion to the effect that the cross-examination of the Court Interpreter should not be directed as to the meaning of the poem, but should be confined as to whether the translation he has made is a correct one; and Mr. Hill accepted the suggestion.
A translation of the poem has been put in by the defence. The substantial difference between the two translations is (a) that in one case the word "Kusum" has been translated in the singular, and in the other in both the singular and the plural numbers; (b) the meaning of the word "Bihar" differs in the two.
If the Jury think that the word "Kusum" is used in the poem, in the plural sense, then the accused would be entitled to an acquittal, and if the word is capable of being taken both in the singular and in the plural, then you will consider whether it is used in this peom, in the individual sense or in the generic sense.
The evidence which have been adduced in this case by both sides may be divided into two general heads:--
(1) Expert evidence.
(2) Evidence of ordinary readers of the paper.
The opinion of the experts is not binding on the Jury, for it is with the Jury and not with these witnesses, that the determination of the case rests. The weight due to the testimony of these witnesses is a matter to be determined by the Jury, and that weight will be proportionate to the soundness of the reasons adduced in its support.
Prosecution experts--Say the words are generally capable of a bad meaning, and are so capable in the poem.
Defence experts--Are of two kinds, (1) some say that the words are incapable of a bad meaning; (2) others say they are capable of a bad meaning, but not in the poem.
(Here the evidence of Rajendra Nath Sastri and Chandra Nath Bose is referred to.) None of the experts examined on behalf of the defence says that he is acquainted with the facts and circumstances of the case or knows the lady''s name. (The evidence of the following witnesses for the defence is referred to) :--
Nobin Chandra Sen.
Brahmabarta Samadhay.
Golap Chandra Sastri.
Kailas Chandra Vidyabhusan.
Rhishi Kesh Sastri.
Mohendra Nath Vidyanidhi.
Hem Chundra Rai.
Kishori Mohan Ganguly.
Kanhaia Lal Sastri.
Atal Behari Ghose.
Nanda Lal Mookerjee.
Hara Prasad Chatterjee.
The prosecution witnesses who knew the names of the complainant and his wife, before they read the poem, and who took it to refer to them, are the following :--
Ambica Churn Ukil (Here his evidence is referred to).
Dwijendra Lal Roy. (You will not place much weight on the evidence of this witness, as it is not clear when he came to know the lady''s name). Amar Chand Datta is a witness of some importance.
The Jury has to see how far the postcard is corroborative of his evidence.
Bhupendra Nath Bose.--The remarks of Mr. Hill in respect to the calling of this witness are unsupported by any shred of authority or common sense. The prosecution had to examine this witness, and was justified in dealing with him in the way it did.
The evidence in support of the charge that the poem is defamatory of the Brahmo Samaj is meagre, and the Jury cannot safely act on it.
Publication by the accused.--There is the reply of the accused to the attorney''s letter and also the evidence of the Sub-Editor.
Knowledge or intention. -- Intention like any other psychological fact has to be inferred from the act itself. You have to see whether the natural result of the act is not to harm the reputation of the persons attacked.
It is said that Kusum Kumari''s name was not known to the accused; It is impossible to look into a man''s mind, one has to judge him by his actions,
If the accused did not compose the poem, then why was not the actual author called. You have heard the evidence of the Sub-Editor, and it is for you to consider whether his name was not deliberately withheld and his identity designedly concealed. If this author had been examined, he could have told you whether he knew the name of Kusum Kumari, or not, and you would have been in a better position to judge whether or not the poem was a deliberate attack on the complainant and his wife.
You must read the poem as reasonable men, and should see whether it is reasonably capable of the construction put by the prosecution.
It is not necessary that all the world should read it as a libel, but the question is whether those who know the parties by putting a reasonable construction on the poem would consider it to refer to the complainant.
It has been urged before you that the construction for which the prosecution contends involves illogicalities.
You will give due weight to this consideration, but at the same time you must remember that unfortunately all those who read newspapers are not possessed of logical minds, which would lead them to discard whatever does not conform with the strict rules of logic.
You must give the benefit of doubt to the accused, but the doubt must be a reasonable or substantial one such as you would give effect to in your ordinary every-day''s action as men of business, and not the mere creature of speculative ingenuity or mental timidity."
The Jury returned a unanimous verdict of "Guilty" on counts 1 to 16, and "not Guilty" with respect to counts 17 and 18. His Lordship thereupon in passing sentence said :--Kali Rosanna Kabyabisharad, you have been found guilty by the unanimous verdict of the Jury of the offences with which you stand charged. I do not think I should be giving effect to that verdict unless I passed on you a sentence of some severity. The sentence of the Court is that you suffer nine months'' simple imprisonment.