T.N.R. Tirumalpad, J.C.
1. These two matters arise out of a criminal case filed by Shri N. Kanhai Singh, who is the petitioner in the Reyision Case and the respondent in the Reference Case, against Shri R, K. Bhaskar Singh, who is the respondent in the Revision Case and the petitioner in the Reference Case. They can be disposed of together.
2. Shri R. K. Bhaskar Singh was the Administrator of the Palace of the minor Maharaja Okendrajit Singh in 1956-57. As such Administrator he filed a petition Ex. P-2 on 31-7-57 in the District Court, Manipur, under the Guardians and Wards Act- for appointing him as the guardian of the property of the Maharaja. In such an application, the applicant has to state what near relatives the minor has and where they reside. This is provided Under Section 10 of the Guardians and Wards Act. In mentioning the names of the relatives in the application, 7 persons are mentioned. They are first the mother, the younger-brother and the sister of the minor, and then a half-brother, minor Saratchandra Singh, through her mother mentioned as Dowager Rani Sovana Devi. The next in order is mentioned as the illegitimate half-brother minor M. K. Sharangajit Singh alias Shiva-it Singh, through his mother Dowager Rani Prabhabati Devi and the 6th is mentioned as another illegitimate half-brother M. K. Tutendrajit Singh and the iast is a half-sister a minor through her mother Dowager Rani.
3. Shri N. Kanhai Singh, who is the father of the Dowager Rani Prabhabati Devi and the maternal grand-father of the minor M. K. Sharangajit Singh thereupon filed a complaint before the A. D. M. against Shri II. K. Bhaskar Singh Under Section 500 Indian Penal Code for criminal defamation stating that by describing minor M. K. Sharangajit Singh as illegitimate half-brother in the petition, Shri R. K. Bhaskar Singh was guilty of making a false imputation intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the minor in the estimation of the public and that such lm-putation if unchallenged would debar the minor from succession to the Gaddi. He also said that the imputation had affected the reputation of Rani Prabhabati Devi and also of Shri N. Kanhai Singh himself.
4. In his defence, Shri R. K. Bhaskar Singh did not claim that the description of the minor in the petition as illegitimate half-brother of the minor Maharaja was a correct description. Instead his plea was that in so describing the minor — Sharangajit Singh he did not intend to damage the reputation of the minor or his mother or grandfather, but that the petition for his appointment as a guirdian of the minor Maharaja was drafted by the algal Remembrancer as advised by the Maharaja's mother Rani Kamalabati Deyi and that lie simply filed the petition so drafted. He also examinee. 3 D. Ws., namely, 3 lawyers, who appeared 3r various claimants in the enquiry conducted by the Judicial Commissioner into the succession by the Gaddi of Manipur after the death of Maharaja Bodh Chandra Singh. Copies of some of the statements filed in the said enquiry by some of the claisiants in which some claimants called the opposing claimants as illegitimate sons of Mahaj-aja Bodh Chandra Singh were also produced. But they were not certified copies and hence th0 statements in the said copies could not be accepjted as correct. The learned Magistrate therefore refused to rely on the said statements as true copies.
5. The Magistrate was satisfied that the imputation I contained in the description 'illegitimate half-brother' harmed the reputation of minor Sha-rangajit Bingh and his mother, that it cannot be -accepted j that Shri R. K. Bhaskar Singh did not intend to harm their reputation and that in any case Shri Bhaskar Singh holding a responsible post should have known that such a statement will amount to defamation of the persons concerned. We did idiots accept the defence plea that the petition was drafted under instructions from the Maharaja's mother as no attempt was made to prove it. The i Magistrate also said that none of the exception to Section 499 Indian Penal Code covered the case, as no evidence was let in to prove that the imputation was made in good-faith. The Magistrate however said that there appeared to be no: ill will or malice in making the imputation. He convicted Shri Bhaskar Singh Under Section 500 Indian Penal Code, but stated that in view of the fact that the accused was a man with reputation and having a high status in Society it would meet the ends of justice if he was let off with an admonition. It may be mentioned here that: the petition — Ext. P-z filed by Shri R. K. J3jhaskar Singh itself states that he is a retired Etude of the Chief Court of Manipur.
6. Against his conviction, Shri R. K. Chaska Singly tiled Criminal Revision Case No. 9/5 of 1962 before the Sessions Judge, Sri Kanhai Singh filed an appeal before the Sessions Judge Under Section 11(2) of the Probation of Offenders Act, 1958; against the order of the Magistrate letting off SJhri Bhaskar Singh with a mere admonition acting Under Section 3 of the said Act. In the Criminal Revision, filed by Shri R. K. Bhaskar Singb the Additional Sessions Judge (I) has made the reference, recommending that the conviction canncjt be upheld. I have read the order of reference and I really could not understand the reasoning pf the Additional Sessions Judge. He has stated therein that the Magistrate ought to have presumed that Shri R. K. Bhaskar Singh, cited in good-faith and under instruction from the Legal Remembrancer to H. H. the Maharaja. according to the learned Judge, the burden of roving absence of good-faith was on the prosecution. The learned Judge also said that as Ad-ministration; Shri R. K. Bhaskar Singh had certain privileges in order to carry out his duties and hat any statement made in the performance of duties is generally to be treated as absolutely privileged. The learned Judge even went to the length of saying that even if the language used, namely, 'illegitimate half-brother' was defamatory, the person using the language was entitled to protection and he might have honestly and on reasonable grounds believed that what he said was true and necessary for his purpose even though in fact it was not so. He said that in the present case, Shri Bhaskar Singh appeared to have been misled by the defamatory language used in the enquiry into the succession to the Manipur Raj to believe honestly that he was also privileged to use the language. Hence, when such words were used against minor Sharangajit Singh after the proceeding in the succession enquiry, it cannot be said that the language lowered the minor in the estimation of others and hence the accused should not have been convicted by the Magistrate.
7. With regard to the appeal filed by Shri N. Kanhai Singh, against the order of the Magistrate letting off Shri Bhaskar Singh with a warning applying Section 3 of the Probation of Offenders' Act, the learned Sessions Judge said that the appeal was not maintainable as, in his opinion, an appeal would lie only by a convicted person. Further he stated that as he was making a reference against the conviction itself, he was not prepared to interfere in the appeal.
8. I shall take up the reference first. I am afraid,. I cannot accept the reasoning of the Additional Sessions Judge at all. Evidently, he has not understood the provisions of Section 499 Indian Penal Code. The description of a person as illegitimate is certainly a very serious imputation to make and it has to be accepted that such an imputation would harm the reputation of the person against whom it is made. Here, the parties are people of High special status and in such a case the imputation is all the more damaging. To say that the minor Sharangajit Singh is the Illegitimate half-brother of the minor Maharaja Okendrajit Singh would imply that Rani Prabha-bati Devi, the mother of Sharanagajit Singh was not married to Maharaja Bodh Chandra Singh This would mean that she was only his mistress and not his married wife. Thus, it will affect even the right of succession to the Gaddi of the Minor Sharanagajit Singh. It affects the reputation of Rani Prabhabati Devi and icy even affecta the reputation of Shri Kanhai Singh himself by showing that he was willing to allow his daughter. to be the mistress of the late Maharaja.
9. Shri Bhaskar Singh has therefore to prove in defence that he would come under one of the 10 exceptions mentioned in Section 499 Indian Penal Code. What the defence tried to show was that this would come under the 4th exception, namely, that the imputation was made in good-faith for the protection of the interest of Shri R. K. Bhaskar Singh and of the minor Maharaja Okendrajit Singh. But I may straightway say that no attempt was made to prove either that the imputation was made in good-faith or that it was necessary to make it for the protection of Shri R. K. Bhaskar Singh or the minor Maharaja. The Sessions, Judge's statement that good-faith should have been presumed by the Magistrate was totally meaningless. He evidently lost sight of Section 2O5 of the Evidence Act, which provided that where a person was accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or proviso contained in any other part of the Indian Penal Code was upon that person. Thus, if Shri Bhaskar Singh tries to bring the case under the 9th exception, it was for him to prove that the .imputation was made in good-faith and further that it was necessary to make it for self protection. It is not correct to say that it was for the prosecution to proves the absence of good-faith.
10. What Shri Bhaskar Singh actually pleaded in defence was that the draft of the petition for guardianship was prepared by the Legal Remembrancer of the Maharaja under instruction from the minor Maharaja's mother and that he as Administrator only filed that petition. No attempt was made to prove this defence. Neither the Legal Remembrancer nor the minor Maharaja's mother were examined in support of this. Fur there, even if it is a fact that it was prepared by the Legal Remembrance under instruction from the Maharaja's mother, it is not a defence at all as far as Shri R. K. Bbaskar Singh was concerned. He was the Administrator of the Palace which is a very responsible position and he was himself a retired Judge of the Chief Court of Manipur. Ho was applying for being appointed as the guardian of the property of the Maharaja. He is, therefore, responsible for the statement made in the petition filed by him, and cannot seek to throw the responsibility on some other's shoulder.
11. Section 10 of %he Guardians and Wards Act requires the applicant for guardianship to state what near relations the minor has and where they reside and it is in that connection that Shri R. K. Bhaskar Singh, described Sharangajit Singh as the illegitimate half-brother. In order to come within the 9th exception to Section 499 Indian Penal Code Shri R. K. Bhaskar Singh has to show firstly that it was necessary either for his own protection or for the protection of the minor Maharaja to make such an imputation in the petition and secondly that he made the imputation in good-faith. The names of near relatives are asked to be given so that notice may be issued to them and the question of guardianship may be decided after hearing their objections if any, to the applicant being appointed guardian. Thus, it was totally unnecessary in the petition to describe the minor Sharangajit Singh as the illegitimate half-brother of the Maharaja, The fact that the claimants in the succession enquiry characterised each other in their statements as illegitimate sons is no justification at all for Shri R. K. Bhaskar Singh to describe Sharangajit Singh as illegitimate half-brother in the guardianship petition. In the succession enquiry, there was privilege as the matter of succession was in question in the said case and had to be decided. But that is not the case in an application for guardianship.
12. Further it is not enough if it is shown that the imputation was made for the protection for one's interest. It has further to be shown that the imputation was made in good faith. Section 53, Indian Penal Code is to the effect that nothing is said to be done or believed in good faith which is done or believed without due care and attention. Thus, Shri R. K. Bhaskar Singh, had to pray that before he filed the petition he bestowed1 due care and attention before he described minor Sharangajit Singh as illegitimate half-brother. As a retired Judge of the Chief Court, due care and attention is certainly expected of him. No attempt was made to prove this. Hence the defence did not prove that the imputation would come within any of the exceptions to Section 499 Indian Penal Code. The conviction by the Magistrate was, therefore, correct and it is not possible for me to accept the reference made by the Additional Sessions Judge. The Reference is rejected.
13. Now I shall deal with the revision. The statement of the Additional Sessions Judge that the appeal was not maintainable Under Section ii (2) of the Probation of Offenders Act is incorrect. Section 11(a) states that where an order Under Section 3 or Section 4 is made by any Court trying the offender, an appeal shall lie to the Court j to which appeals ordinarily lie from the sentences of the former Court. This makes it clear that it is not the convicted person alone who could file the appeal. Where an order is improperly passed Under Section 3 by a Court, the prosecution can also go in appeal to the appellate Court. Hence the appeal was not incompetent. Hence the question arises whether I should interfere in revision. That will depend on whether the order was improperly passed in the present case. Certainly Section 3 of the Probation of Offenders Act would apply to the present case. The offence Under Section 500, Indian Penal Code is punishable with imprisonment of not more than a years. Admittedly, there has been no previous conviction of Shri R. K. Bhaskar Singh. The Magistrate found that there was no ill will or malice on the part of Shri R. K. Bhaskar Singh. Shri R. K. Bhaskar Singh was a man of high social standing, and position. No doubt, in the case of such aj person he has to be more careful. But still in such cases conviction itself would be sufficient punishment and an admonition instead of a regular sentence would meet the ends of justice. The Magistrate was, therefore, right in letting him off with an admonition. I see no grounds to interfere in revision. The revision is, therefore, dismissed.