075-NLR-NLR-V-42-THE-KING-v.-WICKREMASINGHE.pdf
The King v. Wiclcremasinghe.
313
1941Present: Moseley S.P-J. an^Keuneman J.
THE KING v. WICKREMASINGHE
4—D. C. (Crim.) Matara No. 8/32,782.
Disaffection—Endeavouring to cause disaffection and to influence public opinionin a manner prejudicial to public safety—Proof of acts leading to suspi-cion—No explanation by accused—Defence (Miscellaneous) Regulations19 (1) (a) and 20 11) la).
J
Where the accused was charged with endeavouring to cause disaffec-tion among His Majesty’s subjects in Ceylon and to influence publicopinion in a manner prejudicial to the public- safety and to the main-tenance of public order by causing to be printed and published certainarticles in a Sinhalese newspaper and where the prosecution in establish-ing that the accused was in fact the publisher, the editor and manager ofthe newspaper proved certain facts which invested the accused with sucha degree of suspicion as to demand an explanation from him,—
Held, that in the absence of an explanation the Court was entitled toform the opinion that the accused was directly responsible for the printingand publication of the articles.
Held, further, that the statement in an article to the effect that “ theGovernment of Ceylon does not hesitate to do any wrong, whether it isto kill people in cold blood or to disseminate falsehoods in order to bringabout race-hatred ”, amounts to an endeavour to cause disaffectionamong His Majesty’s subjects in Ceylon.
Held also that the statement to the effect, “ we remember the 1915Martial Law …. They (the Government) want to repeat the1915 incidents in a greater measure …. This Police powershould be checked by the people ” was prejudicial to the public safetyand to the maintenance of public order.
A
PPEAL from a conviction by the District Judge of Matara. Thefacts appear from the head-note.
H. V. Perera, K.C. (with him L. A. Rajapakse and P. A. Senaratne), forthe appellant.—The Defence Regulations should be interpreted accordingto the purpose for which they were passed. The Defence Regulationshave in contemplation the present state of war and bear relation to theconditions brought about by the war. “ Disaffection among His Majesty’ssubjects ” would mean general disaffection, i.e., disaffection among allclasses. The articles in question have to be read as a whole. Theprosecution relied on each of them as a whole and not on a particularsentence or sentences. It cannot be said that the purpose of the articleswas to cause disaffection among the people against the successful conductof the war. The articles are nothing more than an attempt as socialistpropaganda. The extravagance of the language used is excusable.Two of the articles ask the people to prepare to fight for economic freedomagainst a particular class, namely, the capitalist, while the third is anappeal for funds to carry on the paper. They cannot be penalized underthe Defence Regulations.
The prosecution has failed to establish beyond all doubt that theaccused was the writer or publisher of these articles. The declarationmade under the Newspapers Ordinance (Cap. 138) shows that one Bennet
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MOSELEY S.P.J.—The King v. Wickremasinghe.
de Silva is the publisher, ^gi^or and manager of the newspaper. Theaccused, no doubt, gave financial assistance and at times contributedarticles, but the evidence falls far short of that which is necessary toprove conclusively that the accused was responsible for the publication ofthe articles which are the subject-matter of the indictment. The insertionin the newspaper, that he was the “ Editor ” or “ Managing Editor ”might have been put in for the purpose of advertisement and without hisauthority. At the worst, it is a case of suspicion. A person cannot beconvicted ori suspicion. See Woolmington v. The Director of PublicProsecutions
The two articles marked “ D ” and “ E ” were improperly let in in spiteof objection taken. Intention is not an ingredient of the offences allegedin this case. In proving the commission of one offence the admission ofevidence to prove the commission of other offences is illegal (Tennekoonv. Dingiri Banda') .
E. G. P. Jayatilleke, K.C., A.-G. (with him T. S. Fernando, C.C.), for theCrown, was called upon to address only on the effect of the articles on thepublic.—Regulation 19 (1) and section 120 of the Penal Code both penalizesedition. The latter is triable by the Supreme Court only. The purposeof Regulation 19 (1) is to enable a Magistrate to deal with the offenceof sedition summarily with the sanction of the Attorney-General or tocommit the accused to the District Court for trial. A publication likearticle “A” can be penalized as seditious. See, e.g., Gopal Lai Sanyalet al. v. Emperor3 and Nageswar Prasad Sharma et al. v. Emperor Themeaning of the word “ disaffection ” is considered in Queen Empress v.Jogendra Chunder Bose et al.3
The convictions on counts 2, 3 and 4 are also justified by the terms ofRegulation 20 (1)(a). Article ‘A” was an endeavour to stir up the
people to resist the Police. Articles “ B ” and “ C ” were clearly attemptsto prevent money from being contributed to war funds and to impede theefficient prosecution of the war.
Article “ D ” and “ E ” were admissible to prove intention undersection 14 of the Evidence, Ordinance (Chidambaram Pillai et al. v.Emperor °; Emperor v. Phanendranath Mitter').
Cur. adv. vulr.
May 27, 1941. Moseley S.P.J.—
This is an appeal against conviction on four charges of offences againstthe Defence (Miscellaneous) Regulations published in Government GazetteNo. 8,533 dated October 20, 1939, read with the regulation publishedin Government Gazette No. 8,568 dated January 12, 1940. The first chargeis that the appellant did “ endeavour to cause disaffection among HisMajesty’s subjects in Ceylon by causing to be printed and published ”a certain article marked “ A ” in an issue of the Sinhalese newspaper*■ Jana Saktiya ” dated May 17, 1940, in contravention of Regulation19 (1) (a) of the said regulations. The second charge, which is in respectof the printing and publishing cf the same article, alleges that he therebyendeavoured to influence public opinion in Ceylon in a manner likely to
> (1935) A. C. 462.4 (1925) A. I. R. Patna 99.
(1916) 3 C. W. R. 364.5 (1891) /. L. R. 19 CVV. -3
3 (1927) A. I. R. Cal. 757.4 (190$) I. L. R. 32 Mad. 3al 14.
(1908) l. L. !t. 35 Cat. 9/5.
MOSELEY S.P.J.—The King v. Wickremasinghe.
315
be prejudicial to public safety, the defence of the Island, the maintenanceof public order or the efficient prosecution of the war, in contravention ofRegulation 20 (1)(a) of the said regulations. Charges 3 and 4 are
in respect of offences similar to that contained in charge 2 but relate toarticles published respectively in the issues of the said newspaper datedJune 29 and July 6, 1940.
The appellant was convicted on all four charges. On the first chargehe was sentenced to one year’s simple imprisonment and on each of theother charges to a fine of Rs. 1,000 in default two months’ simpleimprisonment.
In order to satisfy the Court that the appellant caused the printing andpublication of the offending articles the prosecution sought to show thathe was in fact the publisher, editor and manager of the neswpaper. It iscommon ground that, prior to the publication of its inaugural number,one T. Bennet de Silva made a declaration required by section 2 ofCap. 138 of the Legislative Enactments wherein he declared that hehimself would be the printer, publisher, editor and proprietor of thenewspaper. Moreover, as required by section 6 of the same Ordinance,at the end of each issue of the newspaper there appeared a notificationthat it was printed and published by T. Bennet de Silva together withthe necessary additions. Further, the same person had signed and sentto the Office of the Registrar-General the copies required so to be signedand sent by section 7 of the Ordinance. These are matters which T.Bennet de Silva might have some difficulty in explaining away if at anytime he sought to divest himself of responsibility with which he foundhimself saddled in any of the capacities which he had assumed by any ofthe above-mentioned acts. That, however, is a circumstance whichseems hardly to touch the case. The prosecution placed before the Courta numbr of pieces of evidence which, it is contended, go to prove beyondreasonable doubt that, whatever T. Bennet de Silva held himself out tobe, the actual proprietor, manager, editor and publisher was the appellant.
Prior to publication the appellant had written to the manager of theSudarsena Press as follows: —“ Please arrange for the publication of thispaper. I will be responsible for the payment ”. I do not propose,however, to set out in detail all the acts upon which the prosecution reliedto prove its case.
They were all considered by the learned Judge who, perhaps in certaininstances, attached more weight to a particular circumstance than wasits due. The efforts of the appellant to secure a supply of paper such aswas used for the printing of the newspaper, his payment for the same bymeans of his'own cheque, the finding on his premises of a pile of unusedpaper and of copies of the notice heralding the issue of the paper, the factthat this notice contained the appellant’s name as the editor are allcircumstances which seem to point to the intimate connection of theappellant with the newspaper. In the first issue of the paper appearedan article “ Our Aims ” which purported to be “ By Dr. S. A. Wickrema-singhe, Editor ”. In the second issue, under the heading of the paperappear the words “ Editor: Dr. S. A. Wickremasinghe ”. In each of thesubsequent issues the appellant is prominently described as “ManagingEditor ”.
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MOSELEY S-P.J.—The King v. Wickremasinghe.
It is contended by Counsel for the appellant that these circumstancesand numerous others, to which I have not deemed it necessary to refer,do nothing more than point the finger of suspicion at the appellant, andthat the convictions are therefore unsustainable. The appellant has madeno attempt to explain away these suspicious circumstances, nor indeed washe bound to do so. “ Nevertheless ” as was observed by Lord EJIen-borough (Rex v. Lord Cochrane and others '), “ if he refuse to do so, wherea strong prima facie case has been made out, and when it is in his ownpower to offer evidence, if such exist, in explanation of such suspiciousappearances, which would show them to be fallacious and explicableconsistently with his innocence, it is a reasonable and justifiable conclusionthat he refrains from doing so only from the conviction that the evidenceso suppressed or not adduced would operate adversely to his interest ”.
So here, it seems to me, the facts proved invest the appellant with sucha degree of suspicion as to demand from him an explanation of thesuspicious circumstances. No such explanation has been tendered andI think that, even allowing for the interests in which he has attached anexaggerated value to the evidence, the learned District Judge was rightin forming the opinion that the appellant was directly responsible for theprinting and publication of the articles which are the subject of therespective charges.
Does the article “ A ” represent an endeavour to cause disaffectionamong His Majesty’s subjects in Ceylon ? The learned District Judge inarriving at an affirmative answer to this question considered variousdecisions of the Indian Courts which were brought to his notice notably(Queen Empress v. Jogendra Chunder Bose ') in which case the charge wasone of “ attempting to excite disaffection ” under section 124a of theIndian Penal Code. In that section “ disaffection ” is defined, as includingdisloyalty and all feelings of enmity. I do not know that a considerationof this, or of any of the other authorities cited in the District Court, isnecessary or likely to be profitable. In the Imperial Dictionary “ dis-affection ”, in the sense of the disaffection of people to their prince orGovernment, is defined as disloyalty, and this definition would appear tobe consistent with the consensus of opinion expressed in the Indian cases.
In my view, to select one instance, the statement in article “ A ” that“ the Government in Ceylon does not hesitate to do any wrong, whetherit is to kill the people in cold blood or to disseminate falsehoods in orderto bring about race-hatred ” is the expression of an endeavour to causedisaffection among His Majesty’s subjects.
Has the appellant through the medium of articles “ A ”, “ B ” and“ C ” endeavoured to influence public opinion in Ceylon in a mannerlikely to be prejudicial to public safety, the defence of the island, themaintenance of public order, in the efficient prosecution of the war ?
In article “ A ” appear the words “ We remember the 1915 Martiallaw …. They (the Government) want to repeat the 19i5incidents in a greater measure …. This Police power should bechecked by the people ”. These words were held, and I think rightly,by the Ijistrict Judge to be prejudicial to public safety and to themaintenance of public order.
> (1814) Shorthand Report by Gurney* Indian Decisions 19 Cal. 47
The Kina w. Vidanalage Lanty.
317
In articles “ B ” and “ C ” there is a direct appeal to the people to fightto prevent pecuniary aid being sent to Britain for the prosecution ofthe war.
Each of the four charges, has, in my view been brought home to thenappellant beyond any reasonable doubt.
Counsel for the appellant -in the course of his argument raised anobjection which had been taken in the District Court to the admission inevidence of two articles “ D ” and “ E ” which "Were not the subjject ofcharges, but were produced by the prosecution in order to prove theintention of the appellant. It was contended that, if that was the purposeof the prosecution, it must be shown that the appellant was the writer ofthe articles. It seems to me that this contention fails since the Courtwas satisfied that the appellant was responsible for the various issues ofthe newspaper. Our attention, however, was drawn to the fact that asimilar procedure was followed in Queen Empress v. Jogendra ChunderBose (supra) with the approval of the presiding Judge, and it seems tome that the articles were properly admitted in this case. However,apart from the question of admissibility, in. my opinion no furtherevidence of intention was necessary than that furnished by each of theoffending articles.
I would therefore dismiss the appeal. The convictions and sentencesare affirmed.
Keuneman J.—I agree.
Affirmed.