JUDGMENT

1. Mr. C.R. Das.-A portion of the order, viz., " and the officers of the said Government recruited in England" is not in accordance with sec. 4 under which the order is made. The section refers to a class in British India. The officers referred to in the order may or may not be in India. So the class set out is either narrower or wider than the class stated in sec. 4, cl. (c), and in passing this order therefore, so far as that portion is concerned, the Government of Bengal has not complied with the provisions of sec. 4, cl. (c).

Mookerjee, J.

The order may be set aside on the ground that the words are not of the nature described in see. 4 (1), therefore the Court is bound to examine and determine further, irrespective of what the Government order may say, whether the words used are of the nature described in sec. 4 (1).]

2. Mr. Das - What has been, described in the order is not provided for in the section and if is the order I ask your Lordships to set aside. Secs. 17 and 19 have to he taken together. If your Lordships leave out the order altogether and merely consider whether the words did or did not come under sec. 4 (1) that would not he correct.

3. The law which is contained in sec. 4 (1) is exactly the same as is the law in sec. 124A of the Indian Penal Code and is the same as English law.

4. The language of the two sections are practically identical. If yon leave out the clause " any class of His Majesty's subjects in British India," the rest of the section is the same as sec. 124A. The three explanation are taken bodily from there, the only difference being that the word "disapproval" occurs in sec. 4, Expln. II, whereas the word "disapprobation" occurs in sec 124A, Expln. II. Their Lordships of the Privy Council in Besant v. Advocate-General of Madras (2) 35 T.L.R. 500 : s.c. 23 C.W.N. 986 (1919) say "sec. 124A, Penal Code, has been the subject of careful consideration in the case of Queen-Empress v. Tilak ILR 22 Bom. 112 (1897). these judgments are of considerable assistance toward the consideration of sec. 4." This shows that they are practically the same thing, although the language is not precisely the same.

5. It is clear from the words of the see. 4 that the question of intention is material. It is not possible to consider the words "attempt to excite" (which occur in see. 4, Expln. II), without considering the question of intent. In Besant v. Emperor I.I.R. 39 Mad. 1085(1916)it is held that see. 4, Expln. II, requires that the writer must intend to excite hatred, contempt or disaffection if his writings are to be brought within cl. c. [MOOKERJEE, J.--YOU say Expln. II implies intent, but it does not seem to refer to bringing into hatred or contempt a class or section of His Majesty's subjects.]

6. Mr. Das.--I submit, the question of intention arises in that case also because the Privy Council in Besant v. Advocate-General and Crown Prosecutor of Madras 35 T L. R. 500 : s.c. 23 C.W.N. 986 (1919). had held that even without the explanation the question of intention is material from the wordings in the section itself, for it says "it is perhaps not easy to sec how Expln. II with its qualifications adds to or detracts from the direct language of para. c." Their Lordships were considering the question as the ordinary law of sedition in which seditious intent is a necessary ingredient. According to their Lordship's' judgment the question under sec. 1 (c) comes to this : Are the passages such as to excite or do they disclose an attempt which implies intent to excite hatred... towards Government or any class of His Majesty's subjects. It is clear from this that their Lordships are not thinking of the explanation as the reference to a class is not to be found in the explanation. You can look at it from another point of view, if to repeal a particular measure is my primary intention and if in doing that I have to attack and specially point out the people who are dealing with the Government, properly sneaking that would