JUDGMENT
Rowland, J.
1. These two applications have been heard together, the facts in both being similar. The petitioner was brought before the Magistrate on six charges which were tried in two batches of three each, and was convicted of cheating on all the charges and sentenced in each trial to undergo rigorous imprisonment for 18 months. These sentences have been directed to run concurrently. He was also sentenced at each trial to pay a fine of Rs. 500, in default, to suffer further rigorous imprisonment for six months; the sentences of fine and of imprisonment in default are cumulative. Appeals to the Sessions Judge of Patna were dismissed.
2. In revision, some technical objections have been taken in the petition against the manner of institution and the regularity of conduct of the proceedings at the trial. But Mr. Manuk at the hearing did not press these; indeed there is nothing in them of substance The main argument put forward on behalf of the petitioner is that assuming him to have done those things which the Court’s below have found that he did, he has committed no offence and the second contention is that even if the acts amounted to cheating, the sentences imposed are excessive. The facts are that the petitioner Akhil Kishore Ram resides at Katri Sarai, Police Station Giriak, in Patna District, where in his own name and under thirteen other a liases he carries on a business of selling charms and incantations which he advertises in a number of newspapers in several provinces of India and despatches by value-payable post to persons answering the advertisements. Six of these transactions have been the subject-matter of the charges.
3. Mr. Manuk at the outset asked us to bear in mind that what he called the materialist attitude which regards spells and charms as a fraudulent pretence and sale of them as a swindle, though widely held, is not shared by a large body of opinion in the East particularly in India and among Hindus, where the efficacy of magical incantations is still relied on by many and thought to have a religious basis; and he maintained that there was nothing in the evidence to show that the petitioner did not propound the spells or incantations advertised by him in good faith and with a genuine and pious belief in their efficacy he urged that a conviction should not be founded on the mere fact that the Court had no faith in the efficacy of the incantations. We may recognise the existence of contrasting points of view, but I would express their opposition differently. One outlook is exemplified by words which the dramatist Shakespeare puts in the mouth of one of his characters:
It’s not in mortals to command success
But we’ll do more, Sempronius, we’ll deserve it.
4. This is the mental attitude of those who will spare no effort to secure results by their own endeavours and to whom, even if results fail them, there is a satisfaction in having done all that man can do. There are those on the other hand who would like success to come to them but are averse from the efforts of securing it by their own sustained exertions; it is not in them to deserve success but they hope by some device to command it. It is to the latter class that the advertisements of the petitioner are designed to appeal.
5. The advertisement Ex. 1 says:
GUPTA MANTRA.
A reward of Rs. 100.
The objects which cannot be achieved by-spending lacs of rupees may be had by repeating this Mantra seven times. There is no necessity of undergoing any hardship to make it effective. It is effective without any preparation. She whom you want may be very hard-hearted and proud, but she will feel a longing for you and she will want to be for ever with you, when you read this Mantra. This is a “Vashi Karan Mantra.” It will make you fortunate, give you service, and advancement, make you victorious in litigation, and bring you profits in trade. A reward of Rs. 100,if proved fallible. Price, including postage, etc., Rs. 2-7-0.
Sidh Mantra Ashram, No. 37, P.O. Katri Sarai, Gaya.
6. Those who answered this advertisement received a printed paper headed “Gupta Mantra.” A formula follows and then the instructions:
Read the Mantra seven times and look at the moon for fifteen minutes without shutting up your eyes even for a moment. Have a sound sleep with desired object in your heart after that and you will succeed.
I. You should take only the milk of cow, fruit and sweets of pure fresh cow’s milk during the day and night time, you should bathe at night and make your mind pure before you begin this process.
II. No other person should be taken into confidence however dear and nearly related he may be to you. If you allow such things it will lose its effects as it is so prepared that it can be used by only one man and that with strict secrecy.
Sidh Mantra Ashram, Katri Sarai, Gaya.
7. The leaflets are printed in English, Bengali, Hindi and Urdu: and it would appear from the registers of the post office that over 25,000 clients paid good money for them. Mr. Manuk argues that the Mantras have not been proved to be ineffective and sold with the knowledge of their uselessness; and therefore he says there was no cheating. But that was not what the prosecution set out to prove. The substance of the prosecution case and the findings of the Courts below was that whereas by the advertisement clients were made to believe that “there is no necessity of undergoing any hardship to make it effective” and that “it is effective without preparation”, they were disappointed by finding on receipt of the leaflets that in order to work the oracle they must stare unlinking at the moon for fifteen minutes; a feat which, if not impossible as some of the prosecution witnesses have re-presented it to be, is at any rate beyond the powers of ordinary human beings except by long training and preparation. I have pointed cut that the advertisement is specially directed to those who are not content to win success by patient preparation and effort, and bids for their custom by the assurance that no hardship or preparation is needed.
8. The victims concerned in the six transactions which are before us have all said that had they known of the condition precedent to the using of the Mantra, they would never have sent for it: and the Courts below have accepted that evidence. Mr. Manuk argued that readers of the advertisement must have expected that there would be some instructions for its use; that to gaze at the moon for fifteen minutes was an ordinary instruction; and that a condition of this kind was no breach of faith with them. He referred to defence evidence adduced to show that the feat was not impossible, and submitted that his client had been unfortunate in his failure to secure the attendance of more witnesses on the point though he was unable to say that accused was entitled as of right to more assistance than the Court gave him. He also alluded to an offer by the accused to make a demonstration of moon gazing in the presence of the trying Magistrate, which the latter refused. As to that, the Magistrate was quite right. Section 539-B of the Code which empowers the Court to make a local inspection does not contemplate a procedure by which the presiding officer would, to all intents and purposes, put himself in the position of a witness in the case. The Magistrate rightly said that the accused could adduce no evidence of any such test. The accused examined as a witness a coal merchant who says that he used the Mantra, that he was able to gaze at the moon for fifteen minutes after some days’ practice and that the capital of his business has grown from Rs. 300 to 1,500. The feat of which he boasts does not appear to have been witnessed by any impartial observer and cannot be regarded as a well-authenticated record; his business success also rests on his own word only and he is himself related to the accused and thus not a disinterested witness.
9. The Courts below were fully entitled to refuse to rely on his evidence and to prefer the testimony of prosecution witnesses who have said that the condition attached to the Mantra was impossible or at least beyond the power of ordinary persons. Mr. Manuk argued that the petitioner was not bound to disclose in his advertisement all the procedure that was required to be followed in order to obtain the benefit of the Mantra. That is true; but the advertisement gave a definite assurance that there was no necessity for either hardship or preparation and the condition referred to is contrary to that assurance, on which the witnesses said that they acted, and without which they would not have answered the advertisement. I have no doubt then that the offences charged were committed and the petitioner has been rightly convicted. There remains the question of sentence. Mr. Manuk contended that at the worst the accused had committed a technical breach of the law and that if the Mantra was in fact genuine and effective, he might be, as was argued in the Magistrate’s Court, wanting to do good to the universe. Whether the intentions of the accused were beneficent or otherwise can only be inferred from the materials before us, and such as they are, I can find more indications in them of a desire to do good to himself. Paragraph 2 of the instructions following the Mantra appears to be designed to secure the monopoly of his secret by the threat of the Mantra losing its effect if disclosed to others. The reader is presumably expected to forget that the vendor is disclosing it to thousands. This clause should also minimize the danger of victims discussing their experiences with one another and thus being moved to take action against the vendor. Should there be any such discussion, the use of the fourteen aliases might prevent the victims from being fully aware that, they were dealing with the same person. Then the advertisement is shrewdly drawn to disarm the suspicion with which at first sight the average newspaper reader is apt to regard magic, wizardry and incantations. The reward of Rs. 100 is placed in the forefront No time is lost in putting forward this assurance of genuineness in the headline and at the foot again it is said “a reward of Rs. 100 if proved fallible”. Prospective purchasers are left to hope that by seven times repeating the Mantra they will attain their object whatever it may be with the assurance that in the event of failure they will get Rs. 100 reward and in case they should still be so sceptical as to wonder whether there is not a catch somewhere, there is the added assurance that the Mantra is effective without preparation and without the necessity of undergoing any hardship. If one may judge by the internal evidence, these compositions are the work of no ascetic or dreamer but of a hard-headed business man with organizing capacity and a flair for publicity. We know that he advertises widely and employs a staff of four clerks. The elements in human nature to which the appeal is made are not industry and patience but laziness and greed. The business is on a large scale and the convictions have been in. respect of six out of an unknown number of offences. These are considerations against treating the accused too lightly or imposing a nominal sentence. The accused was liable to be sentenced to seven years’ imprisonment of either description for any one of the six offences of which he has been convicted, and in my opinion, the sentences of substantive imprisonment imposed, namely eighteen months which will amount to no more than consecutive sentences of three months’ for each offence are not excessive; nor are the fines. I would dismiss the applications and discharge the Rules.
Fazl Ali, J.
10. I agree.
