140-NLR-NLR-V-54-M.-S.-ABU-BAKR-Appellant-and-THE-QUEEN-Respondent.pdf
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Abu Bakr v. The Queen
[Gotjet or Criminal Appeal]
1953 Present: Nagalingam S.P.J. (President), Gunasekara J.and H. A. de Silva J.M.S. ABU BAKR, Appellant, and THE QUEEN, RespondentAppeal No. 11 op 1953S. G. 46—M. C. Colombo, 24,048
Evidence Ordinance—Speech delivered at public meeting—Electrically recorded andreproduced by instrument—Admissibility—Sections 11, 159, 160.
Sedition—Attempt to promote feelings of ill-will and hostility between different classesof the Queen’s subjects—Meaning of term “ class ”—Misdirection—Penal Code,s. 120.
In a prosecution under section 120 of the Penal Code, the charge against theaccused was that he did, by means of certain words spoken by him during thecourse of a speech delivered by him at a public meeting, attempt to promotefeelings of ill-will and hostility between different classes of the Queen’s subjeets-The indictment did not state what were the different classes that were contem-plated in the charge. It was, however, stated to the jury by the prosecutingcounsel that the classes were “ capitalists ” and “ workers ” respectively.
The prosecution adduced evidence to the effect that the speech in questionwas electrically recorded, and subsequently reproduced, by means of an instru-ment called the Webster wire recorder, and that when it was reproduced itwas taken down in writing by a witness, Wi
Held, (1) that the speech that was alleged to have been reproduced in witnessW.’s hearing by means of the instrument was a fact that, in connection withthe other facts alleged by the prosecution witnesses regarding the making ofthe speech by the accused and the recording and reproduction of it, made ithighly probable that the accused made a speech in the same terms on the
GTJNASEKLAJRA J.—Abu Baler v. The Queen
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> occasion, in question. Therefore, if it was not a fact that was otherwise relevant,it was relevant under section 11 of the Evidence Ordinance ; which providesthat facts not otherwise relevant are relevant if by themselves or in connectionwith other facts they make the existence of any fact in issue or relevant facthighly probable.
that it was open to witness W. to give oral evidence of the words that werereproduced in his hearing by means of the instrument, using the writing thathe made at the time of the reproduction to refresh his memory (EvidenceOrdinance, section 159).
that an attempt to promote feelings of ill-will and hostility betweendifferent classes of the Queen’s subjects cannot come within sectioh 120 of thePenal Oode unless the classes are reasonably well-defined, stable and numerous;and it is a question for the jury in each case whether a given class has thesecharacteristics and is therefore a class that is contemplated by the section.
Appeal against a conviction in a trial before the Supreme Court.
Izadeen MoJiamed, with K. C. Kamalanathan and A. S. Vanigasooriyar,for the accused appellant.
H. A. Wijemanne, Crown Counsel, with jV. T. D. Kanaharatne, CrownCounsel, for the Grown.
Cur. adv. vuU.
April 10, 1953. Gunasekaba J.—
The appellant, Mohamed Salem Abu Bakr, was convicted of an offencepunishable under section 120 of the Penal Code and sentenced to sixmonths simple imprisonment. The charge alleged that on or about the5th June, 1951, he did by means of certain words spoken by him during thecourse of a speech delivered by him in Sinhalese at a public meeting heldat the Municipal Playground at Dematagoda, “ attempt to promotefeelings of ill-will and hostility between different classes of the King’ssubjects ”. The appeal was pressed on grounds of misreception of evidenceand misdirection.
The prosecution adduced evidence to the effect that the speech inquestion was electrically recorded, and subsequently reproduced, bymeans of an instrument called the Webster wire recorder, and thatwhen it was reproduced it was taken down in writing by an officer ofthe Criminal Investigation Department, named Wijesena, and that thedocument P4 contained the text of the speech as taken down by him.Wijesena gave evidence and both identified P4 and read it aloud to thejury. One of the grounds of appeal is that P4 was inadmissible.
There was evidence before the jury, about the working of the wire recorder,upon which it was open to them to hold that the instrument could accu-rately record a speech and reproduce it; and there was also evidence thatit was operated on the occasion in question by a police sergeant so as torecord on a particular spool of wire (PI) almost the entirety of a speechmade by the appellant and the whole of another speech that immediatelypreceded it and also the announcements that were made by the chairmanof the meeting before these two speeches. According to Wijesena’s evi-dence the speech that he took down purported to be one made by a personwho was announced as Abu Bakr. The police sergeant who had operatedthe instrument at the time of the speeches gave evidence to the effect thatit was he who operated it later to reproduce the sounds recorded on PI so
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• -that Wijesena might take down the appellant’s speech as reproduced, endthat he identified the appellant’s voice on that occasion. Another policesergeant, too, gave evidence to the effect that he was present on both occa-sions and that he too identified the voice that was reproduced as the voiceof the appellant.
The speech that is alleged to have been reproduced in Wijesena’shearing by means of the wire recorder is a fact that, in connection with theother facts alleged by the prosecution witnesses regarding the making of a. speech by the appellant and the recording and reproduction of it, makesit highly probable that the appellant made a speech in the same termson the occasion in question. Therefore, if it is not a fact that is otherwiserelevant, it is relevant under section 11 of the Evidence Ordinance ; whichprovides that facts not otherwise relevant are relevant if by themselvesor in connection with other facts they make the existence of any fact inissue or relevant fact highly probable. It was open to Wijesena to giveoral evidence of the words that were reproduced in his hearing hy meansof the instrument, using the writing that he made at the time of the repro-duction to refresh his memory (Evidence Ordinance, section 159). It wasalso open to him to testify to the facte there noted by him even though hemay have had no specific recollection of the facts themselves, if he wassure that they had been correctly recorded in the document. (Section 160).He did nothing different when he read out the contents of P4 to the jury.Therefore, even if the document itself was inadmissible there was before. the jury admissible oral evidence of what was heard by Wijesena, fromwhich they could infer what was said by the appellant and was recordedon the spool of wire PI.
It appears that at the trial the speech that is alleged to have -been madeby the appellant was reproduced in the hearing of the jury by means of. the wire recorder, and it is contended for the appellant that this procedurewas contrary to law. In the view that we have taken about the admissi-bility of the evidence given hy Wijesena it is not necessary to consider thisground of appeal.
It was next contended that the trial Judge misdirected the jury in thathe had “ failed to direct the jury as to what was meant hy (1) ill-will andhostility and (2) between different classes of the King’s subjects ”.
The charge sets out the passage in the speech that is alleged to be sedi-tious, together with a translation of it into English. The appellant wasalso charged, in other counts of the indictment, with having by means ofthe same words attempted to excite feelings of disaffection to the Govern-ment and to raise discontent or disaffection among the King’s subjects.With these charges we are not concerned in this appeal, which relatesonly to the charge of attempting to promote feelings of ill-will and hostilitybetween different classes of the King’s subjects.
The indictment does not state what are the different classes tha’J arecontemplated in the charge. It was stated at the Bar, however, that theacting Solicitor-General, who appeared for the Crown at the trial, stated tothe jury that the classes were “ capitalists ” and “ workers ” respectively.Upon the case that was presented hy the prosecution, then, the jury0 hadto decide whether these groups formed “ different classes of the King’ssubjects ” within the meaning of section 120 of the Penal Code.
GXTNASEKAHA J.—Abu Baler v. The Queen
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The term “ class ” in ordinary usage signifies “ a number of individuals(persons or things) possessing common attributes, and groupedtogether under a general or £ class 1 name ; a kind, sort, division ,T{Shorter Oxford English Dictionary). Not all classes of persons, however,are among those contemplated in the section. They must, of course, beclasses of the Queen’s (or King’s) subjects. But the context and the object-of the enactment, which appears to be to avert civil commotion, limit thesense further, and they must be classes that can be readily distinguishedone from another and have a reasonably clear dividing line between themfor it is not possible to conceive of hostility between two classes that canresult in a violent conflict between them unless they are sufficiently distinctfrom each other. For a similar reason their composition must be reasonablystable and not continually shifting, and they must not consist of a fewindividuals merely but must be numerous. In other words an attempt topromote feelings of ill-will and hostility between different classes of the-Queen’s subjects cannot come within the section unless the classes are rea-sonably well-defined, stable and numerous ; and it is a question for thejury in each case whether a given class has these characteristics and is-therefore a class that is contemplated by the section. That an intentionto excite ill-will and hostility between different classes of the Queen’ssubjects is not necessarily a seditious intention was pointed out in the case-of It. v. Bums and Others 1 which was cited to us by Mr. Wijemanne.Cave J. said to the jury in that case :
Any intention to excite ill-will and hostility between different classesof Her Majesty’s subjects may be a seditious intention; whether in aparticular case this is a seditious intention or not, you must judge anddecide in your own minds, taking into consideration the whole of the-circumstances of the case.
Mr. Izadeen Mohamed has referred us to three cases decided by theHigh Courts of Bombay, Allahabad and Calcutta, respectively, whereit was held that “ capitalists ” did not form a “ class of His Majesty’ssubjects ” within the meaning of section 153a of the Indian Penal Code,the terms of which are almost identical with the material words of section120 of our Code. The earliest of these is Maniben Liladhar Kara v. TheEmperor 2. There Beaumont C.J., with whom Nanavati J. agreed, said :
I think that any definite and ascertainable class of His Majesty’ssubjects will come within the section, although the class may not bedivided on racial or religious grounds. But I differ from the learnedChief Presidency Magistrate when he says that capitalists are a suffi-ciently defined class. “ Capitalists ” in the literal sense of the word is,
I suppose, anyone who possesses any accumulated wealth, and practi-eally every one possesses some accumulated wealth, though somepeople do not possess very much. On that definition practically every-body will be within the capitalist class. No doubt in the region ofeconomic discussion capitalists are referred to in a more limited sense.In reference to divisions between capital and labour, the capitalistgenerally means a person with a considerable amount of propertyinvested in industry. But if you take any definition of that sort,
{1886) 16 Cox 355 at 361.
A. I. R. 1933 Bombay 63 : 57 Bombay 253.
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it is impossible to say -what amount of capital would bring a manwithin the class. He might be within the class one day, and withoutit .the next. He may be a capitalist in one country and not in another.It seems to me “ capitalist ” is altogether too vague a phrase to denotea definite and ascertainable class so as to come within S. 153a.
Nanavati J. said :
The object of the section is to'prevent breaches of the public tran-quillity .which might result from exciting feelings of enmity betweendifferent classes of His Majesty’s subjects ; but when the personsincluded in any group are not readily ascertainable, it is difficult to seehow any criticism of such an ill-defined group can lead to a tumult orbreach of tranquillity …. As far as I can see, the first and mostimportant ingredient in the connotation of the term is that the wordsused must point to a well-defined and readily ascertainable group ofTTib Majesty’s subjects …. In the second place some element ofpermanence or stability in the group would have to be present beforeyou can have an attempt to excite enmity against that group ….Thirdly, there is a question of numbers. The group indicated must,
I think, be sufficiently numerous and widespread to be designated“ a class ”…. The reason for this requirement is that unless a
group is numerous and widespread the excitement of feelings againstit is not likely to be of consequence from the point of view of tran-quillity. Now, if the speaker meant to indicate by the word “ capitalists”the “ idle rich ”, it may be doubted if persons who answer to thedescription in Bombay, or even in India, are sufficiently numerousto form a class of the kind contemplated in this section..
The decision in this case was cited with approval in Gautam v. TheEmperor 1, decided by Sulaiman C.J., Allsop J. and Bajpai J. In thelatter case the learned Chief Justice of Allahabad said :
Again feelings of enmity and hatred should be aroused betweentwo classes of His Majesty’s subjects, that is to say, between twosections of the people which can be classified as two groups opposed toeach other. A vague, indefinite and nameless body, even though givenone name, may not in certain circumstances be considered as a classby itself, particularly if individuals overlap indiscriminately. Butit may also be conceded that it is not necessary that the classes shouldbe so distinct and separate as to make it easy to put an individualin one class or the other.
Maniben’s Case 2 was also cited with approval in Nepal Chandra Bhatta-charya v. The Emperor 3, which was decided by Bartley and Henderson JJ.In this case Bartley J. said :
If the word “ capitalists ” is susceptible of accurate definition all,that definition must be 'with reference to a world system of economics.We are in agreement with Beaumont C.J. when he said in 57 Bom.253 that—
Capitalist is altogether too vague a phrase to denote a definite< andascertainable class so as to come within S. 153a.
i A. I. R. 1936 Allahabad 561.2 A. I. R. 1933 Bombay 65 ; 57 Bombay 253.
A. I. R. 1939 Calcutta 306.
GUNASEKARA J.—Abu Baler v. The Queen
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laterally, the common factor in such a case is accumulated ■wealth.Economically, the common factors are, possibly, wealth plus invest-ment. Practically, it is impossible to define the limits of any^suchclassification or to say how any speech would affect any givenproportion of its components.
We respectfully adopt as applicable to section 120 of the Ceylon PenalCode the tests laid down in these cases for determining whether a givenclass comes within section 153a of the Indian Code. It must be appreciated,however, that in each case the decision as to whether “ capitalists ” weresuch a class must be understood in the light of its own circumstances.It may well happen that a term that does not ordinarily denote a classsuch as is contemplated in the section does in a particular context meansuch a class. This possibility is adverted to in the judgment of Nanavati J.in Maniben's Case 1:
You may refer to people as diehards, or extremists, or nationalists ;as free traders or fair traders ; as nationalists or communaJists; asmilitarists or pacifists, as imperialists or little Englanders ; and itwould be difficult to regard the people designated or meant to be•designated by these and like expressions as forming classes sufficientlyprecise for the purposes of the criminal law. What is a well-definedclass will of course depend on circumstances. There may arise circum-stances in which people designated by any of the expressions I havementioned may be so well-defined that it might be possible to say thatthey form a class against whom hatred or enmity could be excited.But the Courts would have to be very careful in ascertaining who werethe persons attacked before holding that an attempt had been made toexcite enmity against a class of people within the terms of S. 153a,I. P. C.
'The second case cited by Mr. Mohamed, Gautam v. The Emperor 2, furnishes.an instance of a decision that “ capitalist classes ” and “ working classes ”fall within the section. The question in that case was whether therewas in either of both of two books that were the subject of the proceed-ings any matter the publication of which was punishable under section153 a of the Indian Penal Code, and it was held that one of them containedsuch matter. After summarising the contents of that book, Sulaiman•C.J., who delivered the judgment of the Court, said :
There can, therefore, be no doubt that this translation of an oldManifesto directly aims at promoting class hatred and enmity, and infact incites working classes to overthrow the capitalist classes evenwith the use of force and so it undoubtedly contains matter which isobjectionable under S. 153a.
b.
In the present case, having regard to all the evidence that was placedbefore the jury we are unable to say that it was not reasonably open tothem, upon a proper direction, to hold that the appellant intended topromote feelings of ill-will and hostility between different classes of theKing’s subjects. They were not directed, however, that the term “ classes ”
1 A. I. B. 1933 Bombay 63 ; 57 Bombay 253.* A. I. R. 1936 Allahabad 561•
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Sztppiah Pillai v. Muttukarivppa Pillai
as used in the section must be given a restrictive interpretation and n6t-its ordinary meaning… Indeed, they were given a direction which suggeststhe cpntrary, for the learned Judge said in his summing-up :
Well gentlemen of the jury, there is no such thing as a capitalist classirt Ceylon but some people are referred to by that phrase and in thecontext you will ask yourselves who is the capitalist class referred tohere and who is the class referred to in contradistinction with regard tothat term.
The summing-up contains no further discussion of the term “ class ”and gives no definition of it. In our opinion this omission constitutes a-vital misdirection, and it cannot be said that upon a proper direction thejury would, without doubt, have arrived at the same verdict. Wetherefore quash the conviction of the appellant and set aside the sentence-
Conviction quashed.