TMI Blog1919 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... isher, the name of the periodical and the place where the printing or publishing is conducted. 3. Under the second Act, Section 3, Sub-section 1, the person making the declaration is required to deposit before a magistrate in money, or in certain securities, a sum not being less than ₹ 500, or more than ₹ 2,000, as the magistrate may think fit to require. 4. But the magistrate may, for special reasons which he is to record, dispense with the deposit, and he has certain powers of cancelling or varying any order made under this sub-section. 5. By Section 4 of the Act, the Local Government, when it appears to it that any printing press, in respect of which any security has been deposited, is used for the purpose of printing any newspaper which contains words, signs, or visible representations of a nature deemed to be objectionable under the detailed provisions of the section which will be hereinafter specifically set forth, may by notice in writing addressed to the keeper of the press, declare the security and all copies of the newspaper wherever found forfeited to His Majesty, and after the expiry of ten days from the date of the issue of the notice of forfeiture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1910, and declaring that the security which the appellant had deposited and all copies of New India wherever found were to be forfeited to the Crown. 13. The appellant thereupon purporting to avail herself of the provisions of Section 17 of the Act presented her petition to a Special Bench of the High Court of Judicature at Madras, praying that both the order of the magistrate requiring security and the order of the Governor in Council should be revised and sot aside. It being, however, obvious that the procedure under auction 17 was not available for questioning any act of the magistrate, the appellant the next day presented what is called a Criminal Revision Petition under Sections 106 and 107 of the Government of India Act (5 and 6, George V, c. 61) and Section 435 of the Code of Criminal Procedure. This application, described in the course of the proceedings as an application for a certiorari, was also heard by the Special Bench. 14. After argument, both applications were refused; all the Judges agreeing that they should be refused, but not being in agreement as to the grounds on which the revision petition failed, and not being wholly in agreement as to all the artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, other than this one, to which the word cancel would be properly applicable. If the normal course is adopted, and a deposit is required and, if the magistrate thereafter thinks it too much or too little, the appropriate word for the new order is that it is one varying the old. But if he were to cancel simpliciter an order fixing the deposit at a particular sum, it is difficult to see what would happen. There must be a deposit unless there is a positive order of dispensation; the cancelling of an order fixing the deposit, at say ₹ 2,000, would leave the keeper of the printing press in the position of having to apply to the magistrate to make some further order, either fixing a new sum or dispensing with any; and till such new order had been made and complied with, the keeping of the printing press would apparently be an unlawful act, so that the cancellation of the order fixing the deposit at ₹ 2,000 would be injurious instead of beneficent to the keeper of the press. But if the magistrate had originally thought fit to dispense with security and afterwards changed his mind, the right phrase to use would be that he had cancelled his order of dispensation. 21. Their L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrative. But their Lordships do not think that this change alters the nature or character of the action of the magistrate. It is true that the duties of the Chief Presidency Magistrate are primarily judicial; but the magistrates outside the Presidency town exercise both judicial and administrative functions, and the district magistrate is principally an administrative officer. These two considerations appear to balance one another. The action of the magistrate under Sub-section 1 of Section 3 is (like the action of the magistrate under Sub-section 1 of Section 8) analogous to the action of the Local Government under the second sub-section in like same clauses, and the action of the Local Government is clearly administrative. 28. It being once established that the normal course is to have a deposit, the action of the magistrate in increasing or diminishing, withdrawing or imposing, is a pure matter of administrative discretion. It is only in one case that he is to record his reasons and that is when there is a departure from the normal, and the object of recording them is, as the Officiating Chief Justice rightly said, for the information of his superiors in the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded on behalf of the respondent in the High Court, that there is no power in the High Court to issue a writ; of certiorari, or alternatively that the provisions of Section 22 forbid recourse to this writ in cases which come under the Press Act. 35. As to the first point it would seem that at any rate the three High Courts of Calcutta, Madras and Bombay, possessed the power of issuing this writ [see Re the Justices of the Supreme Court of Judicature at Bombay (1829) I Knapp, 1, 49, 51, 55; and Nando Lal Bose v. The Corporation for the Town of Calcutta (1885) I.L.R., 11 Calc., 275]. Whether any of the other Courts which are by definition High Courts for the purposes of this Act have the power to issue writs of certiorari is another question. 36. Supposing that this power once existed, has it been taken away by the two Codes of Procedure? No doubt these Codes provide for most cases a much more convenient remedy. But their Lordships are not disposed to think that the provisions of Section 435 of the Criminal Procedure Code and Section 115 of the Civil Procedure Code of 1908 are exhaustive. Their Lordships can imagine cases, though rare ones, which may not fall under either of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciate it. 42. The order of the High Court dismissing the application was therefore right, and the appeal from it must be dismissed. 43. If their Lordships thought that the appellant had made any way, they would have had to consider whether she was not, according to the practice prevailing in cases of certiorari, too late in making her application. Indeed, what advantage the appellant would have gained if she had succeeded upon this application is not very apparent. The power of the Local Government to make a forfeiture under Section 4 no doubt depends upon there being a deposit to forfeit. But at the time the order was made, 25th August 1916, there had been in fact a deposit since 5th June; and the appellant had taken no steps to get herself relieved from the order made on the 22nd May directing the deposit, or to get it back. 44. Even were it contended that the deposit ought to be regarded as having been so unwarrantably exacted that it ought to count as non-existent, there was nothing to show that the Local Government was or ought to have been aware of this. Further, Section 22 makes the declaration of the Local Government conclusive as to there being a forfeiture. 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite hatred, contempt, or disaffection do not come within the scope of Clause (c). 47. The notice of forfeiture issued on the 25th August 1916 stated that in the opinion of the Governor in Council 20 passages published in the appellant's newspaper on various dates from the 7th June to the 17th August were of the nature described in Section 4, substation 1, and declared the security deposited by the appellant to be forfeited. The articles in question were numbered consecutively from 1 to 14, seven articles being numbered 4 and marked with consecutive letters of the alphabet. Thereupon the appellant availed herself of the remedy given to her by Sections 17 and 18 and applied to a Special Bench of the High Court to set aside the order on the ground that the newspaper did not contain any words, signs, or visible representations of the nature described in Section 4, Sub-section (1). 48. This application as already stated was heard by the same Judges as those who sat upon the application for a certiorari. In the unanimous opinion of the Bench, the articles numbered 2, 11 and 13 were within the terms of Section 4, Sub-section (1), Clause (c). Seshagiri Ayyar, J., thought that A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards the construction of Section 4. 53. In substance the question under Clause (c) of Section 4, Sub-section (1), comes to this: are the passages such as in fact to excite, or do they disclose an attempt (which implies intention) to excite, hatred, contempt or disaffection towards the Government or of any class or section of His Majesty's subjects in India; and in judging the question of intent the publisher must be deemed to intend that which is the natural result of the words used having regard, among other things, to the character and description of that part of the public who are to be expected to read the articles. 54. As regards the question of hatred or contempt of a class or section, it was argued that the object of the article was to attack the system, not a class or section. It may be assumed, for the purposes of this case, that there may be reference to a class or section of His Majesty's subjects so couched as to show that the attack is merely upon a school of opinion, and that unless the language is such as to excite hatred or contempt of persons, it may escape condemnation. But assuming this, the appellant remains face to face with the difficulty that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal cases, does so under constitutional limitations which, as has often been explained and notably in the case of Dal Singh v. The King-Emperor (1917) I.L.R., 44 Calc., 876: L.R., 44 I.A., 137 and in Tilak's Case (1897) I.L.R., 22 Bom., 528: L.R., 25 I.A., 1, already quoted, preclude it from exorcising the full functions of a Court of Criminal Appeal 60. It should be added that for the purpose of considering, not the intention to excite, but the fact whether the articles are such as to excite, the Judges in India with a far closer knowledge of the character of the people likely to read the articles, have better means of judging than their Lordships in England. 61. Here the matter might rest. But in the particular circumstances of this case, and after the elaborate argument at the Bar, their Lordships think it well to go further, and to say that if they considered it proper to look into the matter in detail, they would hold that the articles which were the subject of unanimous condemnation, and at least some of those which came under the censure of Judges in the High Court, were obnoxious to the provisions of Clause (c), and possibly in some cases to those of Clause (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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