JUDGMENT
1. The appellant V.O. Chidambaram Pillai is the second accused in Calendar Case No. 1 of 1908 on the file of the Additional Sessions Judge of Tinnevelly. The appeal of the 1st accused (Criminal Appeal No. 503 of 1908) has been dealt with by us and in disposing of it we have decided, after hearing Counsel for both, the appellants, certain questions common to the cases of both. We apply those decisions to the present appeal where they are applicable, but do not think it necessary to recapitulate them.
2. The offences of which the present appellant has been, convicted are three offences of abetment of the uttering by the 1st prisoner of seditious words. The occasions are the speeches made on the 23rd and 25th of February 1908 and the 5th of March following. The appellant was not present on the last occasion, but was present on the other two, and has accordingly been convicted on one charge of an offence under Sections 109 and 124A of the Indian Penal Code and on two charges of offences under Sections 124A and 114 of the Indian Penal Code. He has been sentenced to transportation for life.
3. Mr. Sadagopachariar on his behalf has raised, besides those questions which arc common to this case and to that of the 1st prisoner, some questions of law with, which we will deal at the outset.
4. In the first place, he contends that the complaint of abetment (Exhibit XIX) was not made by order or under the authority of the Government.
5. The original complaint (Exhibit B in Criminal Appeal No. 492 of 1908) is not filed in the present case, but we have looked at it and find that it is in terms almost indentical with Exhibit U in this case, the complaint against the first accused, Subramania Siva. It was presented on the 23rd of March 1908, and on the 6th of April 1908 Exhibit XIX was presented charging the appellant Chidambaram Pillai that he was not only associated with Subramania Siva but also aided and assisted him and conspired with him to make seditious speeches and that seditious speeches were made by Subramania Siva in pursuance of the conspiracy.
6. The meaning of the Government Order (Exhibit A) is clear. Complaints are to be presented alleging the commission of offences punishable under the sections stated in the order.
7. Now, Exhibit XIX which is styled the supplemental complaint, is a complaint against Chidambaram Pillai in respect of speeches made by Subramania Siva in the months of February and March 1908, and is not, so it is argued, within the Government Order.
8. The argument may be sound if we are bound to read the word ‘them’ in Exhibit A distributively, that is to say, to hold that each of the three persons named, is to be prosecuted in respect of the speeches delivered by him, but we do not think we ought so to read the order.
9. There is no doubt that the speeches were made in the course of a series of meetings in the holding of which the 1st and 2nd prisoners were associated and we think that the order of Government was intended to cover all offences punishable under the stated sections, and committed in connection with the delivery of those speeches. The order is wide enough to bear this construction and we are not inclined to restrict its scope. What we have to see is, “was the complaint authorised?” It was undoubtedly made by the authorised person under colour of his authority, and we think that authority is wide enough to cover it if the offences complained of are offences punishable under the stated sections of the Indian Penal Code. The question then is, whether they are so punishable.
10. The charges relating to the 23rd and 25th of February 1908 are, as we have said, under Sections 124A and 114 of the Indian Penal Code. Now, Section 114 enacts that if a person, who would, if absent, be punishable as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed he shall be deemed to have committed such act or offence.
11. If then Chidambaram Pillai being (as we assume for the present) punishable as an abettor by conspiracy, is present when his accomplice in pursuance of the conspiracy, makes a speech which constitutes an offence, punishable under Section 124A, he is to be deemed to have committed an offence under Section 124A. He is constructively a principal and is to be punished as such. Mr. Sadagopachariar argues that the abetment is none the less the gist of the offence. We it so; but the offence is punishable under Section 124A. Section 114 does not provide any punishment; the offence of abetment plus presence on the occasion of the crime abetted is constructively the offence abetted, and is punishable as such and not as abetment. The Government Order thus authorises the complaint made in respect of the offences alleged to have been committed on the 23rd and 25th of February 1908.
12. The third charge is also within the letter of the Government Order if the offence is punishable under Section 124A.
13. The argument was that abetment of sedition is punishable under Section 124A of the Indian Penal Code and is therefore one of the offences enumerated in Section 196 of the Code of Criminal Procedure, but it is not one of the offences enumerated in Exhibit A and therefore the prosecution is unauthorised. But Exhibit A follows the section and if we are to read the words ‘or the abetment of such offence’ into Section 196, Criminal Procedure Code, there is no reason why we should refuse to read them into Exhibit A. If on the other hand, as Mr. Richmond contended on behalf of the prosecution, Section 196, Criminal Procedure Code, does not deal with offences of abetment except that particular case of abetment which is defined in Section 108A of the Indian Penal Code, then no order is necessary to support the complaint. This argument is supported by the case of Queen-Empress v. Abdul Kadar Sheriff Sahib 20 M. 8, but it is not necessary for us to decide whether we should be prepared to follow that case or not. We think the complaint, Exhibit XIX, whichever view we take, must be held to have been duly authorised.
14. For the reasons stated in our judgment in Criminal Appeal No. 503 of 1908, we do not think that by reason of the defects in the charges, the present appellant has been misled, and that there has been a failure of justice.
15. Turning to the merits, we have, in Criminal Appeal No. 503 of 1908, considered the credibility and weight of the prosecution evidence and that adduced on behalf of the present appellant. We accept the prosecution evidence as giving a substantially correct summary of the speeches delivered by both the accused and we have now to consider whether this evidence and the other evidence in the case is sufficient to establish the appellant’s abetment by conspiracy of the offences committed by the 1st accused.
16. If Chidambaram Pillai engaged with Subramania Siva in a conspiracy to excite disaffection towards the Government, and if, in pursuance of that conspiracy, and in order to the exciting of disaffection an act ‘took place,’ then Chidambaram Pillai is guilty of abetment of the excitement of disaffection (section 107, Indian Penal Code).
17. The first question then is, was there a conspiracy?
18. The evidence is circumstantial, and is dealt with in paragraphs 29 to 33 of the judgment of the Additional Sessions Judge. He finds it proved that Subramania Siva lived while at Tuticorin in the house of the appellant Chidambaram Pillai (paragraphs 30 and 31), that Chidambaram Pillai was an influential man while Subramania Siva was a stranger to Tuticorin and without influence there, that Chidambaram Pillai usually closed the meetings and announced the time and place of the next meeting, and that both men constantly spoke upon the same platform and usually came and left together (paragraphs 32 and 33). He also refers to certain incidents some of them proved by the defence evidence to show that Chidambaram Pillai was regarded as the principal organiser of the series of meetings.
19. There is no doubt, and it is not denied, that a series of open air meetings was held at Tuticorin commencing early in February and continuing over the first half of March, at which, the 1st accused was the principal speaker, and it is proved beyond doubt that the 2nd accused also spoke at the meetings of the 19th, 22nd, 23rd, 24th and 26th of February and of the 4th of March. 1908. Meetings were held privately on the 27th and 28th of February 1908 in a place which according to the prosecution 11th witness belonged, to the 2nd accused though the notice calling the meetings (Exhibit M1) was issued by a man who was the 2nd accused’s clerk, and the building is therein called ‘my building.’
20. On the 25th of February 1908 the appellant was present at the meeting and announced the next meeting but did not otherwise speak. He was also present on the 1st of March and then announced a meeting for the 3rd, and on the 5th of March 1908 he was not present. The speeches of which we have any record commenced on the 19th February 1908, but the evidence shows that even before that there were meetings some of which were attended and addressed by the appellant.
21. It may be that the meetings were originally organised by the Young Men’s Patriotic Association (vide Exhibit M4), but that series of meetings was to last for a week only from the 3rd of February 1908, and according to the defence 6th witness who was the Secretary of the Association, when that series was over, ‘other’ lectures were delivered by the 1st accused. It is not shown that Chidambaram Pillai was a member of the Young Men’s Patriotic Association but he was associated with the lectures of Subramania Siva and others, soon after the campaign opened, and the evidence shows that even if the latter speeches were a continuation of the original programme, Chidambaram Pillai must have early taken part in the operations of the organising body: Exhibit M4 is perhaps evidence of conspiracy against the members of the Association: it does not help the appellant. There is some very vague evidence by the defence 36th witness and the defence 40th witness on this point. The latter says that ‘the Sangam’ would announce the meetings, but he does not say how or through whom: it may have been by the mouth of the appellant: he is unable to say who made the arrangements for the next meeting on the two occasions to which he speaks, and seems to try to leave the impression that the audience settled it themselves without reference to any one in particular, whereas the prosecution 2nd witness makes it clear that on one occasion on which the audience asked for a particular locality, the appellant announced that the meeting would be held there (vide page 18 of the printed evidence). This evidence on behalf of the defence is far from convincing, and as the witness has to admit that both the accused were present on these occasions, the police evidence is more easily accepted.
22. The prosecution evidence that Chidambaram Pillai usually came to the meetings with Subramania Siva is not of much importance. There is evidence on the other side that he usually came late after his office closed, but that is not very well established. The witnesses have at best to trust to their memories for an incident some months old which, as the defence 36th witness says, was not a striking incident at the time. There is some improbability in supposing that several persons on the 23rd of February 1908 marked down in their memories the fact that Chidambaram Pillai was not present from the beginning of the meeting. The general evidence that his office did not close till 6 p. M. and he did not come as a rule till later, is more likely to be accurate; but even here there is room for much doubt. Chidambaram Pillai was not a clerk in the office: it is not suggested, that he was bound to certain hours and if on some days in February or March 1908 he left office early to push his Company’s interests in open air meetings, there would be nothing strange in his conduct.
23. He was clearly not very late on the 19th of February 1908, for on that day Subramania Siva made a second speech, after he had finished speaking; and it is clear that he was not late on the first of March. 1908 for he opened the proceedings on that day (vide Exhibit D). It is probable that he was late on the 23rd of February 1908. The announcement at one meeting of the date and place of the next was, it is contended on the strength of a statement by the prosecution. 2nd witness (page 18 of the printed evidence), the duty of the last speaker on each occasion. But there is no evidence that in making his announcements Chidambaram Pillai consulted any one else: even on the occasion on which it is said the audience suggested a place of meeting, it is not shown that Chidambaram Pillai before making his announcements accordingly, consulted any one as organiser of the meetings (page 18 of the printed Sessions Records) and it was not always the last speaker who made the announcement, for on the 1st March 1908 Padmanaba Aiyangar spoke last but Chidambaram Pillai announced the next meeting (vide page 18 of the printed evidence.)
24. There is thus good evidence that Chidambaram Pillai was present at most of the meetings and spoke at many of them and made arrangements for their continuance. That is enough to indicate that he was one of the organisers of the course and to afford reasonable around to believe that he was, in concert with others causing the delivery of the speeches which were delivered. And this evidence is supplemented by other evidence circumstantial but important. These circumstances negative the view that he was merely a sympathiser, casually present at the meetings and called on as a popular character to make speeches occasionally. Such a view is not open to any one taking a reasonable and impartial survey of the evidence.
25. On the 1st of March 19 8 the Sub-Magistrate, prosecution 14th witness, asked Chidambaram Pillai to change the place of meeting. He did not reply that he had nothing to do with the arrangements: he said he could not change his programme: and on that very evening we find him closing the meeting early because he had promised the authorities so to do. (Exhibit D). This conduct is entirely inconsistent with the allegation that he was not concerned with the organisation of the meetings, an allegation which was made for the first time at the trial of this case.
26. Similarly, though perhaps not so obviously, inconsistent with the case put forward by the defence is his conduct in announcing his intention of promulgating his Sangam rules at one of the meetings, and his subsequent announcement that he would withhold them for a further meeting as they required modification in consequence of the arrival of news from England. If he spoke merely in response to the popular demand these announcements would never have been made. He clearly utilised the lectures as a means of enlisting recruits for the Sangam, a fact which itself indicates the improbability that he was merely a casual speaker thereat. Then as the Additional Sessions Judge points out, one defence witness spoke of the meetings as meetings of Chidambaram Pillai and Subramania Siva; another (defence 10th witness) spoke of Chidambaram Pillai as ‘presiding’ at the meetings though in friendly cross-examination on behalf of the 2nd accused he explains that away in no very convincing manner (page 103 of the printed evidence), a third witness for the defence (defence 27th witness) in cross-examination stated that Chidambaram Pillai ‘assisted’ Subramania Siva in organising the meetings, but in re-examination gave the not very satisfactory explanation that he meant that he spoke after Siva (page 126 of the printed Sessions Records).
27. We do not attach to these expressions any very great importance, but they all point in the same direction. The witnesses cannot altogether conceal their belief that Chidambaram Pillai was a leading spirit in the affair.
28. The Additional Sessions Judge has analysed the evidence on the question whether Subramania Siva and Chidambaram Pillai lived in the same house and we think he has arrived at the right conclusion. As he points out, the great defect in the defence evidence is the absence of the witnesses Sadagopa Iyengar and Rama Iyengar who ought to have been able to explain all that took place: but, whether Subramania Siva actually lived in the house of the appellant or whether he only used his well for bathing and his library for reading and slept and fed himself elsewhere, it is quite clear that both men were very closely associated together during the period over which the speeches extended.
29. So far, the evidence relates to the conduct of the appellant himself and it is not necessary to have recourse to Section 10 of the Indian Evidence Act to admit it. Another incident on which the Additional Sessions Judge relies is a statement of Subramania Siva on the 9th of March 1908, at Tinnevelly which is set out at the end of paragraph 32 of his judgment. If this statement is otherwise admissible under Section 10 of the Indian Evidence Act, there can be no doubt that it cannot be rejected on the ground suggested by Mr. Sadagopachariar that there is no reasonable ground to believe in the existence of a conspiracy. The other evidence gives sufficient reason for this belief to warrant the application of the section. The statement has reference to a common design to make speeches, and is evidence, though not of itself very strong evidence, of the existence of a conspiracy. We think it is admissible. It cannot be explained away by the suggestion that the speaker referred to himself and his audience, for his audience at Tinnevelly had not been associated with him, so far as the evidence shows on any previous occasion; it obviously referred to himself and Chidambaram Pillai who were then under trial before the District Magistrate along with the third man to whom reference is made. The evidence then proves, beyond any reasonable doubt, the existence of a common design, in pursuance of which speeches were made by Subramania Siva, and it remains to be seen whether that design included the commission of offences under Section 124A of the Indian Penal Code.
30. Now it was strongly urged by Mr. Sadagopachariar that however admissible may be the speeches of the 1st accused to prove his ‘animus’, intention, or meaning, the speeches of Chidambaram Pillai cannot be admitted to prove abetment. But we think that these speeches are admissible to prove the object of the conspiracy. It is found that an agreement existed in pursuance of which speeches were made by two parties to the agreement, and the remaining question being, what was the object of that agreement, what was the ‘thing’ for the doing of which that agreement was made, there is no better evidence short of a reasonable and credible statement of objects and reasons by the parties or witnesses on their behalf, than that afforded by their sayings and doings in pursuance of the agreement. For this purpose we confine ourselves to the series of speeches delivered at Tuticorin between the 19th of February and the 5th of March 1908. As to them there is no doubt that they formed a regular course of discourses made in pursuance of the agreement; the speeches made at Tinnevelly on the 9th and 11th of March 1908 probably did not form a part of that course and it may be doubted therefore whether they can be admitted to prove the object of the agreement though statements made in them may be admissible for other purposes–as for instance, under Section 10 of the Indian Evidence Act.
31. Now, whatever may have happened before the 19th of February it is clear that on that day Subramania Siva made a speech in which in plain language he put before his audience the goal to which they should aspire, the overthrowing of the British supremacy and the liberation of India from a foreign yoke.
32. There is no evidence that Chidambaram Pillai came late on that day to the meeting but assuming that he did, it would be puerile to suppose that fie did not, in spite of his close association with Subramania Siva at this period, know soon after this meeting what it was that was said. However, on the 19th of February 1908, Chidambaram Pillai was not so late but that after his speech Subramania Siva was able to make a second speech.
33. Now Chidambaram Pillai followed Subramania Siva with a speech of his own. It contains no word of dissent from Subramania Siva’s views but it is occupied mainly with the promotion of Sangam or Association, the members of which were to pledge themselves to consume only goods manufactured in India (vide page 174 of the printed evidence). The speech reads as though the speaker had doubts as to the legality of the Association, and knew that his audience had similar doubts: he tells them that it is not illegal, that the fears entertained by Europeans were groundless, that they must not be afraid to join, that he will bear the burden if anything goes wrong, and finally that there is no need for fear (this seems to be the connection) because that part of the people of India which is anyhow fated to die in one year could, if they would make up their minds to die at once, do away with all the Europeans in the country.
34. On the 22nd of February 1908, he advances the matter a little by pointing out three ways “to re-gain our lost position.” Refuse to buy foreign goods, refuse to appeal to the authorities on any occasion, and refuse the education of Government schools: they must do this, if they want to obtain Swaraj.
35. On the 23rd of February 1908 the idea is again made clearer: if all the Indians unite, the Europeans must leave the country: we could easily drive them away by force, but though we ought not to use force, we ought to have no fear of them: our method of driving them out is to boycott foreign goods and then they will have to go.
36. On the 24th of February 1908, he excuses his non-production of the promised rules of the Sangam by saying that he has to alter them in consequence of a sympathetic speech by Lord Morley. The Sangam is therefore political, not commercial, or at any rate not solely commercial.
37. On the 26th of February 1908 the appellant’s speech is concerned with the boycott of the Madura Company and the strike at the Coral Mills and contains no further suggestion for the attainment of Swaraj through boycott. Then followed speeches in private places: and on the 28th of February 1908, the day on which the District Magistrate was in Tuticorin, the appellant was found dissuading the mill hands from continuing the strike: “go back to work” was his advice “but demand more pay.”
38. On the 1st of March 1908, though the appellant was present he did not speak except to close the meeting apparently because it was necessary that day to close early.
39. On the 4th of March 1908, he again continues his course and after giving a somewhat optimistic sketch of the prospects of the Swadeshi Steam Navigation Company and the cotton spinning business he again explains that the way to obtain Swaraj is to avoid the courts both civil and criminal: then the Government will see that we have no need of them and will of necessity yield: we must show that we want no foreign help.
40. In all these speeches, there is no word of dissent from Subramania Siva’s cult of “Absolute Swaraj On the contrary, this ‘Absolute Swaraj’ is to be arrived at by means of the boycott and abstention from all recourse to the authorities. Swaraj through boycott is the burden of the speeches and the Swaraj aimed at clearly involves the departure of all foreigners from India.
41. It may be that Chidambaram Pillai’s own object was to some extent commercial: he was interested to a great extent in the Swadeshi Steam Navigation Company and other industrial enterprises and he may have discovered by the 19th of February 1908 that ordinary commercial competition was not likely to be effectual against such powerful and long established rivals as the British Indian Steam Navigation Company and the Coral Mills, and that his best chance of success was to secure the adhesion of his countrymen to his concerns by appeals to patriotic motives.
42. To succeed, it was necessary to instill into their minds an aversion from everything foreign, and it may be that some such object as this inclined him to the adoption of the political programme of ‘Absolute Swaraj.’ That he did adopt that programme his speeches leave no room for doubt.
43. It is true that in another case (S.C. No. 2 of 1908 on the file of the Court of the Additional Sessions Judge of Tinnevelly: Criminal Appeal No. 492 of 1908 on the file of the High Court) he did allege and call evidence to prove that he expressed dissent from Subramania Siva’s interpretation of the word ‘Swaraj’ but except for that belated disavowal, (if we can consider it in this case) the evidence in support of which we have found ourselves unable to accept, there is nothing to suggest that his views in any way differed from those of Subramania Siva. He cannot be acquitted of disloyalty merely because he deprecated violence; and his exhortations not to create disturbances and his acquiescence in the request of the authorities as to closing a meeting early are in our opinion due to a natural desire that the course of the meetings should not be interrupted. He was then as his speeches show in accord with Subramania Siva’s views: he organised the series of speeches with Subramania Siva, in which Subramania Siva’s role was that of the political propagandist while he himself followed up with his economic disquisition. Each entered from time to time on the other’s ground and the goal to which both pointed was the departure of all foreigners and all things foreign from the land and the resulting Swaraj and prosperity.
44. The evidence leaves no room for any real doubt that the political speeches of Subramania Siva were a part of the programme, and the delivery of those speeches involved, as we have found in Criminal Appeal No. 503 of 1908, the excitement of disaffection against the Government. This was one of the things to be done in pursuance of the conspiracy, and as soon as it was done, the appellant was guilty.
45. The charges are in respect of the speeches of Subramania Siva delivered on the 23rd and 25th of February and the 5th of March 1908 and we have found, on a consideration of all the evidence and after hearing counsel for both the appellants, that those speeches constituted offences punishable under Section 124A of the Indian Penal Code. The appellant V.O. Chidambaram Pillai was therefore rightly convicted.
46. As regards the question of punishment, we think that in this case as in Criminal Appeal No. 503 of 1908 the law will be vindicated by a sentence of 6 (six) years’ transportation.
47. Subject to this modification of the sentence, the appeal of V.O. Chidambaram Pillai is dismissed.