1. This is an application for revision of the judgment of the Chief Presidency Magistrate, convicting the petitioners of the offence of defamation. The complainant in the case is a woman belonging to the same caste as the petitioners. At a meeting of the caste an accusation was brought and a sentence of' ex-communication pronounced against her. The complainant prosecuted the petitioners for defamation, alleging that the accusation against her was false that the sentence had been passed behind her back and that the slander had been published by the petitioners without any justification or good faith.
2. The learned Magistrate has found upon the evidence that the sentence of ex-communication was communicated to the members of the caste only; but he holds that the petitioners cannot claim privilege and bring their act within any of the exceptions to Section 499 of the Indian Penal Code, because the meeting of the caste at which the accusation against the woman was considered and at which the sentence of ex-communication was passed had been called for a totally different purpose and the woman was condemned unheard.
3. It is urged for the petitioners, by their counsel Mr. Bhulabhai Desai, that there is no evidence whatever to support the learned Magistrate's finding that the petitioners published to the caste the sentence of ex-communication after it had been pronounced at the caste meeting. What appears upon the oral evidence recorded is that as a rule every resolution of the caste passed at any of its meetings is communicated to its members by a servant duly appointed for the purpose. That was done in the present case. The petitioners must be presumed to have known when the sentence was passed that in the usual course of business the servant would publish it; and that the sentence was pronounced for such publication. Having regard to these surrounding circumstances the Magistrate was right in holding that the publication to the caste was made by the servant with the knowledge and consent of the petitioners.
4. But the question is whether the pub location was a privileged communication within the meaning of the ninth exception to Section 499 of Indian Penal Code which says that: 'it is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interests of the person making it or of any other person, or for the public good.' Here the caste had jurisdiction over the complainant as one of its members for caste purposes. An accusation had been levelled against her and the case, at one of its meetings, dealt with it and resolved to ex-communicate her. The procedure adopted was indeed improper inasmuch as the woman herself was not heard and the proceedings were all without notice to her and behind her back. But whether the sentence of ex-communication was passed properly or not by the caste, is a question which would have no relevancy except on the question of good faith, if the duty of the petitioners as headmen of the caste was to publish every resolution passed at a caste meeting to the members of the caste and they published it. There is a dividing line between the passing of a resolution at a caste meeting and its communication by the authorities of the caste to its members in the discharge of their social duty. If any member of a caste publish to all its members a caste resolution in such discharge, the law will hold the occasion of the publication to be privileged. The member who published it was bound to publish it and the members of the caste had an interest in hearing it. But then there must be good faith on the part of the member who published, that is, it must be proved that the publication was made with due care and attention. That is a question of fact. Here the facts are practically undisputed. One test of good faith is whether the circumstances of the case show that the accused made the imputation having reasonable grounds to believe it to be true. In the matter of the petition of Shibo Prosad Pandah 4C. 124. The facts in the present case on this point are undisputed. That the complainant was ex-communicated at a caste meeting is a fact. The publication was of that fact only and it was made only to the members of the caste. The petitioners are more or less illiterate men and do not appear to have known that the sentence of ex-communication pronounced at the caste meeting was improper because the complainant had not been heard in defence. In publishing it they appear to have acted from what they honestly but wrongly believed to be a sense of duty to the caste. Further the Magistrate finds that there was no malice on their part. Upon these facts, which are not challenged, good faith must be held proved. The convictions and sentences are set aside. The fines, if paid, must be refunded.