When Babu Kalinath Roy's case was taken up in these columns, I was asked by several Punjabi friends why I had not taken up Lala Radha Krishna's case which was equally strong, if not stronger than Babu Kalinath Roy's. I respectfully told the friends that I did not know Lala Radha Krishna's case and that I would be glad to study it if the papers were sent to me. I have now received the papers, namely, the charge, the defence statement, the judgment, Lala Radha Krishna's petitions and the translations of portions of the Pratap from which the statements in the charge-sheet were taken. These are all published in this issue.* The reader, therefore, has complete data for coming to a definite conclusion.
In my humble opinion the judgment is a travesty of justice. The case is in some respects worse even than Babu Kalinath Roy's. There are no startling headlines as in the Tribune case. The accused has been sentenced not on a section of the Indian Penal Code but on a rule temporarily framed as a war measure. My meaning will be clear when the reader has the rule itself before him. Let me remind him that it is not a rule passed by the Legislative Council. It is a rule promulgated by the Government under the powers granted to it by the Defence of India Act. Here is the whole of it:
a) which is false and which he has no reasonable ground to believe to be true, with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public; or
b) with intent to jeopardize, or which is likely to jeopardize, the success of His Majesty's forces by land or sea, or the success of the forces of any power in alliance with His Majesty; or
c) with intent to prejudice, or which is likely to prejudice, His Majesty's relations with Foreign Powers; or
d) with intent to promote, or which is likely to promote, feelings of enmity and hatred between different classes of His Majesty's subjects:
shall be punishable with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine, or if it is proved that he did so with intent to assist the King's enemies, with death, transportation for life or imprisonment for a term which may extend to ten years.
(2) No court shall take cognisance of any offence against this rule save upon complaint made by order of, or under authority from, the Governor-General in Council, the Local Government or some officer empowered by the Governor-General in Council in this behalf."
It will be noticed that the rule is so drastic that an offence against it could not be taken cognisance of except under special orders of the Government or some officers appointed in this behalf.
Let us turn to the indictment. Now a charge-sheet should contain no avoidable inaccuracies and no innuendoes. But we find that this indictment contains material inaccuracies. One of the three statements claimed by the Prosecution to be false is that the accused said in his paper that "they (the crowd) were fired at in Delhi without any cause". Now this is a dangerous inaccuracy. The passage in question reads, "they were, at least from their point of view, fired at without any cause." The words italicized have been omitted from the charge thus giving a different meaning to the writing from the one intended by the writer. From the third item too the relevant portion which alters the accused's meaning in his favour has been omitted. The third count concludes, "the people threw stones and brickbats at the time when the authorities had already taken the initiative." The relevant and qualifying sentences in the article from which the above is extracted are -
This sentence with the portion italicized again alters the whole meaning. If such an omission was made by a defendant, it would amount to suppressio veri and he would rightly put himself out of court. Done by the prosecution, the omission has passed muster, but in reality it is far more dangerous than suppressio veri on the part of a defendant. The Crown by a material omission, intended or otherwise, may succeed in bringing about an unjust conviction, as it appears to have done in this case.
The last paragraph of the charge contains an unpardonable innuendo. "The accused has published a number of seditious and inflammatory articles, but the Crown prefers to proceed under Rule 25." The suggestion that the accused has written "seditious and inflammatory articles" could only be calculated to prejudice the defence. I have never seen an indictment so loosely drawn up and so argumentative as this. In a properly constituted court of law, I venture to think, that it would have been ruled out of order, and the accused set free without having to enter upon any defence.
The judgment, too, I am sorry to say, leaves the same impression on one's mind that the charge does an impression of prejudice and haste. It says, "The prosecution have also established that each of these statements is false." Now I have, I hope, already demonstrated that two of the statements in the indictment would not be proved to be false for they are statements torn from their context and incomplete. No amount of evidence to prove the falsity of such incomplete statements could possibly be permitted to injure the accused. There remain only two statements to be examined. The first statement is: "By the evening of the 31st March forty Hindus and Musalmans had been killed." Now it would be quite clear to anybody pursuing the judgment that even now it is not known how many persons were killed. I suggest that the deciding factor in examining the falseness or otherwise of the above statement is not the number killed, but whether any people were killed at all. If anything could then alarm the people, it was the fact of firing, not necessarily the number killed. And the fact of firing is not denied. As to the number, the newspapers including the Anglo-Indian press had different versions. The learned Judge dismisses the plea that other respectable papers contained about the same statements that the Pratap did. I submit that it was a relevant plea in order to establish the defendant's bona fides with a view to show that he had reasonable grounds for believing the statements he published. The second statement made by the accused is: "It cannot be denied that most who were killed or wounded were innocent." Lala Radha Krishna in his petition pertinently observed that 'the Delhi authorities themselves took this view and in order to provide for the innocent sufferers in the riots opened a public fund'. Let me add to this that no attempt was made by the Crown to show that even one man killed or wounded among the crowd was guilty of any act of violence himself. The court seems merely to have relied upon the fact that those who were killed were 'members of a violent and dangerous mob'. That fact does not necessarily prove that those actually killed were guilty of violence nor has the accused in his articles complained that the innocent suffered with the guilty. His complaint naturally was that the firing was at all resorted to.
It is now necessary to examine the rule under which the accused was charged. Lala Radha Krishna was charged under sub-clause (a) of sub-section 1 of rule 25. In order to establish the guilt of the accused it is necessary to prove
a) That the statement is false;
b) That the accused 'has no reasonable ground to believe it to be true';
c) That it is published 'with intent to cause' or it 'is likely to cause tear or alarm to the public'.