1. This is an application for revision of an order of acquittal passed by the Presidency Magistrate, Third Additional Court, Bombay. The applicant Vinayak Atmaram Pathare prosecuted the opponent Shantaram. Janardan Pathare for defamation in respect of an article written by him and published in a weekly vernacular newspaper called 'Rashtratej.' The complainant and the accused are both members of the Pathare Kshatriya community, the members of which live mostly in Bombay and the Kolaba District. The complainant is a journalist, and in a magazine which he publishes called 'Udkar' he had made criticisms on one Ramji Laxman Gharat a member of this community, who had presided at a meeting of its members held in August, 1938. These criticisms on Mr. Gharat were resented and on August 21, 1938, there was a meeting of a society called Pathare Kshatriya Vaktrutwottejak Samaj which passed resolutions condemning the complainant. The article, which was the subject of the defamation case, was published in the 'Rashtratej' newspaper on September 1, 1938. It purported to give an account of the meeting of the Samaj and the resolutions passed thereat But it was stated that some resolutions were passed which were not, in fact, passed at the meeting. The accused claimed that his conduct in writing this article was privileged and covered by the first exception to Section 499, Indian Penal Code, that is to say, his contention was that the imputation made was true and for the public good. The learned Magistrate accepted this view and acquitted the accused.
2. This revision application was allowed to stand over to see whether Government proposed to appeal. But there has been no Government appeal and ultimately a Rule was issued. The Government Pleader now appears in these proceedings and says that his instructions are that if any expression of opinion is called for, he should support the application.
3. In a well known judgment in Faujdar Thakur v. Kasi Chowdhury (1914) I.L.R. 42 Cal. 612, Sir Lawrence Jenkins expressed the view that as a general rule it is expedient not to interfere, on revision, at the instance of a private person, with an acquittal after trial by the proper tribunal, and that applications for that purpose should be discouraged on public grounds. Even at the time of Sir Lawrence Jenkins' judgment there was a consensus of judicial opinion in favour of this view, and our own High Court has approved of the principle stated in Faujdar Thakur v. Kasi Chowdhury in several cases, for instance, Faredoon Cawasji, In re (1917) I.L.R. 41 Bom. 560and Emperor v. Rameshwar Harnath (1929) I.L.R. 53 Bom. 564. It is clear from these cases that for a long time past this Court, like most of the other High Courts, has consistently declined to interfere in revision with orders of acquittal except where interference is urgently demanded in the interest of public justice.
4. Defamation cases, however, may perhaps form an exception to this general rule as was pointed out by Sir Lawrence Jenkins in the case to which I have referred. The reason is that in cases of defamation, which from their very nature affect private parties and not the public, Government would usually be unwilling to interfere. For that reason the High Court has interfered in revision on the application of a private party, for instance, in Asutosh Das Gupta v. Purna Chandra Ghosh (1922) I.L.R. 50 Cal. 159. We have accordingly heard this application argued. We have done so because it is a defamation case and not because the Government Pleader has appeared in support. The view 'we take is that as it is provided in Section 439, Clause (5), of the Criminal Procedure Code, that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed, the Government Pleader has, strictly speaking, no locus standi to appear. Certainly Government cannot avoid the obligation of appealing in a proper case by lending support to a revision application brought by the complainant.
5. Coming to the merits of the case, the resolutions which were actually passed at the meeting of the Samaj were--
(1) that V.A. Pathare (i.e. the complainant) should not be invited for any meeting, gathering or any other function held under the auspices of the Samaj;
(2) that if V.A. Pathare attends a meeting or a gathering, he should be turned out;
and it was also resolved that a copy of the resolutions should be sent to all secretaries, which means apparently the secretaries of the various branches of the Samaj.
6. According to the article which the accused published in the 'Rashtratej' the resolutions were
(1) that no one should send an invitation to V.A. Pathare;
(2) that no one should bring him to a meeting;
(3) that if he made himself bold to attend any meeting he should be turned out; and
(4) that before co-operating with and taking part in any work of other institutions, it should be made certain that those other institutions would not invite V.A. Pathare.
7. The article further stated that it was decided at the meeting that these resolutions should be published.
8. The article was correct in saying that it had been resolved that V.A. Pathare should not be invited to any meeting, and that if he came to any meeting, he should be turned out. It was not correct in stating that no one was to bring him to a meeting or that enquiries were to be made about the practice followed in other institutions. However, it would seem that the more important resolutions were undoubtedly the resolutions about not inviting the complainant and turning him out if he came, and there is, at any rate, some justification for the view taken by the learned Magistrate that the additional resolutions referred to in the article were rather by way of amplification of the resolutions actually passed and did not carry the matter much further. One Mr. Dandekar, who appears to be a prominent member of the Pathare Kshatriya Community and who was examined as a witness for the complainant, himself stated in his evidence that he could see very little difference between the actual resolutions and the form in which they were reported in the newspaper article.
9. The complainant's main grievance appears to be the publication of these resolutions in the 'Rashtratej' rather than the form in which they were published. The learned Magistrate, having found that the imputations were substantially true, proceeded to discuss the question whether the publication was for the public good and not excessive. The accused relied on exception 1 to Section 499, and apparently the learned Magistrate thought that was the exception governing the case. He found that the complainant's criticism of Mr. Gharat had caused great resentment in the Pathare Kshatriya community many of whom live in Alibag where the 'Rashtratej' newspaper mainly circulates. He found that the complainant had published a leaflet containing abuse of Mr. Gharat, which leaflet he had distributed broadcast. He found that this leaflet was in unbecoming language, and in view of all these circumstances, he came to the conclusion that the accused was justified in getting this article published in a newspaper which, though it circulates in other places also, has its main circulation in the Alibag Taluka and therefore among the members of this particular community.
10. We think that there can be no doubt that the learned Magistrate was wrong in applying exception 1 to Section 499. Assuming that it can be said that the imputation in this case was true, that is to say, that the newspaper article gave a substantially correct account of the resolutions passed by the Samaj, it cannot reasonably be argued that the publication of these resolutions was for the public good. The conduct of the complainant is a matter which concerns the Pathare Kshatriya community and does not in any way concern the public. The exceptions which would properly apply to the case are the 9th and the 10th exceptions. Those exceptions require proof of good faith. The learned Magistrate has not found in so many words that the accused acted in good faith, although it may perhaps be inferred from his judgment that he thought so. But, apart from the question of good faith, it would clearly be going too far to say that it was necessary for the protection of the interest of the accused or other members of the community in question that these resolutions should be published in a newspaper. It is no doubt an extenuating circumstance that the newspaper in question circulates mostly in Alibag, but it circulates in other places also including Bombay. That being so, it was clearly, in our opinion, excessive publication which would take the case out of the privilege conferred by exceptions 9 and 10.
11. We think, therefore, that on the evidence the accused might properly have been convicted. At the same time, we think that when all the circumstances are considered, the Court would not have been called upon to do anything more than impose a fine and not a heavy fine. In a revision application we cannot convert an order of acquittal into one of conviction. The most we could do would be to direct a retrial. But we think that this is a private quarrel which mainly concerns the complainant and the accused and to some extent the other members of the Pathare Kshatriya community. It is not a matter, we think, in which the public has any interest whatever. That being so, it would be waste of time and money to direct that there should be a retrial, and we have decided that we will not interfere,
12. The rule is accordingly discharged.