JUDGMENT

Mookerjee, J. - This is an appeal under sec. 5 of the Newspapers (Incitements to Offences) Act of 1908, against an order absolute for forfeiture made under sec. 3, sub-sec. (5) of that Act. The Appeal was heard in the first instance by my learned brothers Harington and Teunon, who have differed in opinion. My learned brother Harington is of opinion that the order for forfeiture must be set aside, while my learned brother Teunon is of opinion that the order for forfeiture should be maintained. The case has therefore been laid before me under sec. 429 of the Cr. P. Code read with sec. 9, of Act VII of 1908. The circumstances, under which the order absolute for forfeiture was made by the Court below, are set out in the opinions recorded by my learned brothers and need not be recapitulated at full length. It is sufficient to state that the order has been made on the ground that the Pallichitra is a newspaper within the meaning of the Newspapers (Incitements to Offiences) Act of 1908, and that in the issue of it for Asarh 1316, was published a poem " Esho Ma Palli Rani," which contains an incitement to murder, or to an offence under the Explosive Substances Act, 1908, or an act of violence. The legality of the order of forfeiture has been questioned before me, upon three grounds, namely, first, that the " Pallichitra " is not a newspaper within the meaning of the Newspapers (Incitements to Offences) Act, 1908; secondly, that the poem has not been duly proved; and, thirdly, that it does not contain any incitement to the crimes mentioned in sec. 3, sub-sec. (1) of Act VII of 1908.

2. In so far as the first of these points is concerned, my learned brothers Harington and Teunon have held in concurrence with the original Court that the " Pallichitra" is a newspaper within the meaning of the Act. After anxious consideration of the matter, I am constrained to adopt the view that the "Pallichitra" is not a newspaper within the meaning of the Act. Before I deal with the question, however, it is desirable to point out that the matter is open for discussion upon this reference, under sec. 429 of the Criminal Procedure Code. That section provides that when the Judges, composing the Court of Appeal, are equally divided in opinion, the case with their opinion thereon shall be laid before another Judge of the same Court, and such Judge after such hearing if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. Two points are worthy of note in connection with this section: first, that what is laid before another Judge is the "case," and, secondly, that the judgment or order follows the opinion delivered by such Judge. I am not now concerned with the question of the trial of two prisoners, with regard to one of whom, the Judges composing the Court of Appeal may be agreed in their opinion, while as regards the other, the Judges may be equally divided in opinion. In such a contingency, it is quite possible to maintain the view, that upon a reasonable interpretation of the term " case" what has to be laid before another Judge is the case of the prisoner as to whom the Judges are equally divided in opinion. I am now concerned only with the contingency in which the Judges of the Court of Appeal are equally divided in opinion, upon the question of the guilt of one accused person, though upon certain aspects of the case, they may be agreed in their view. In such a contingency what is laid before another Judge, is not the point or points upon which the Judges are equally divided in opinion, but the "case." This obviously means that so far as this particular accused is concerned, the whole case is laid before the third Judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case.

3. The judgment or order follows such opinion, which need not necessarily be the opinion of the majority of the three Judges; for instance, at the original hearing of the Appeal, o