1. This is an appeal against the appellant's conviction under Section 500 of the Indian Penal Code, 1860, by the Presidency Magistrate, 4th Additional Court, Mazagaon, Bombay. The complainant Aboobakar is a dealer in vegetable ghee, and on November 20, 1944, he received 159 drums of vegetable ghee from the Hindustan Vanaspati Manufacturing Co. As there was not sufficient room in his own godown, he kept some of those drums in the godown of Abdul Razak at Musapherkhana. On the next day the police raided that godown, but being satisfied that no offence had been committed they took no further action against the complainant. The accused Abdul Gani who is not on good terms with the complainant wanted to bring him into disrepute by giving publicity to this incident in a different light. So about November 21, 1944, he went to Iqbal, a reporter of the Times of India, and told him that the police of Crime Branch II had raided a godown at Musapherkhana and seized a large number of tins of vegetable ghee which had been meant for the black market. and requested him to have the incident published in the Times of India. Iqbal told him that he would consider the matter. Abdul Gani then met him twice or thrice again and told him that the person who had kept the tins there was. Aboobakar and requested him that he should get the news published at least in any paper in one of the regional languages. So on November 27, 1944, Iqbal introduced the accused to Bhupendra Desai, a reporter of Sanjvartaman, in the Reporters' Club at the Esplanade Police Court. The accused repeated to him the story which he had told Iqbal and requested him to have it published. Desai asked him to give the information in writing, but the accused was not prepared to give it in writing himself, and said that he would send some one to do so. After about half an hour accused Mustaffa went to the Club with one Abdul Sattar and told Desai that he was Abdul Gani's cousin. He told him that Aboobakar had kept some tins in a godown at Musapherkhana for being sold in the black market and that he had made lacs of rupees by selling such tins in the black market. He also told him that he wanted to have the incident published, since Aboobakar was a hot-tempered man and was creating trouble. As Desai wanted the information to be given in writing Mustaffa asked his companion Abdul Sattar to write out the information. Accordingly a report was written out by Abdul Sattar in Gujerati to the dictation of Desai. They handed over the paper to Desai and went away. As Mustaffa had told him that the godown had been raided by Police Sub-Inspector Patel of Crime-Branch II, Desai went to Patel's office to verify the truth of the report. Patel, however, refused to give him any information about the incident and referred him to Inspector Kokje. Accidentally Aboobakar was then present in that office, having gone there to get back his books and he heard the talk which Desai had with Sub-Inspector Patel. So, when Desai was leaving the office Aboobakar went to him and asked him what enquiries he was making about. He then told him what information had been given to him by Abdul Gani and Mustaffa in the Reporters' Club. Aboobakar then told him that no offence had been committed and that the tins had been already released by the police. On the next day Desai saw Inspector Kokje and was satisfied that the information given to him by Abdul Gani and Mustaffa was false and so he destroyed the report which had been written out by Abdul Sattar and given to him. Realising that Abdul Gani and Mustaffa had maliciously given false information to Desai in order to harm his reputation, Aboobakar took Iqbal and Desai to his solicitors and had their statements taken down, and on March 29, 1945, he lodged a complaint of defamation against both. Holding that the two accused could not be jointly tried, the learned Magistrate tried them separately, convicted both of them under Section 500 of the Indian Penal Code and fined them Rs. 300 and 210 respectively. They have presented separate appeals and this appeal has been presented by Mustaffa.
2. Both Abdul Gani and Mustaffa were tried jointly in the beginning and all the witnesses for the complainant were examined and cross-examined in their presence. But before the charge was framed the learned Magistrate ordered that they should be tried separately. The two cases were separately numbered as Nos. 192 and 192A and separate charges were framed against them in their respective cases. The hearing of Abdul Gani's case was taken up first. It was finished and then the hearing of Mustaffa's case was taken up, but instead of beginning the trial de novo and recording fresh statements of the witnesses of the complainant, the learned Magistrate treated the statements of those witnesses already recorded as evidence in Mustaffa's case and asked his counsel to proceed with their cross-examination after the charge. No objection was then taken to that course and now it is contended that the trial is vitiated thereby. It is urged that Mustaffa having ceased to be an accused person in case No. 192 when it was proceeded with against Abdul Gani alone, the evidence recorded in that case could not be treated as evidence against him in case No. 192 A. In support of this contention reliance is placed on the ruling in Nathu Sheikh v. The Queen-Empress I.L.R(1884) . Cal. 405. In that case four persons who had been accused of having given false evidence in the same proceeding were ordered to be tried separately, but as the evidence against them was common, the learned Sessions Judge, on the request of the pleaders for the accused, recorded that evidence only once and treated it as evidence in each case. Such procedure was held to be 'improper'. We respectfully agree with that view. But as held in Emperor v. Ghanasham : (1906)8BOMLR538 the procedure is irregular and is capable of being-cured by Section 537 of the. Criminal Procedure Code, 1898. This ease was cited with approval in Emperor v. Harjivan Valji 28 Bom. L.R. 115. In that case the depositions taken in one of the three cases were, by consent of the pleaders for both the Crown and the accused, admitted as evidence in the other two cases, and Fawcett J. observed (p. 178):
No doubt this procedure is not regular, but I do not think that we are constrained to hold that it constitutes an illegality which vitiates the trial of the other two cases... .This ground affords no basis for our interference.
The same view was taken by the Allahabad High Court in Emperor v. Sukhai Ahir I.L.R.(1927) All. 457. Mr, Peerbhoy for the appellants distinguished these cases on the ground that in the present case the accused or his counsel never gave his consent to the procedure. But evidently he did not either object to that procedure, and even in this Court he has not mentioned this as a ground of appeal in his memorandum of appeal. No doubt in a criminal trial consent or waiver on the part of counsel for the accused cannot be said to deprive the accused of his legal rights, and if the procedure adopted is illegal, then even though no prejudice is caused to him, Section 537 of the Criminal Procedure Code will not cure it by reason of such consent. In the words of Lord Phillimore (Abdul Rahman v. The King-Emperor (1926) L.R. 54 IndAp 96 :
No serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused.
But when there is only an irregularity, then, as pointed out by Marten J. in Emperor v. Kutubuddinkhan (1925) 28 Bom. L.R. 285the consent or the failure to raise an objection is an element to be taken into consideration in determining whether any prejudice has been thereby caused to the accused. The explanation to Section 537 of the Criminal Procedure Code itself lays down that in determining whether any error, omission or irregularity in any proceeding under the Code has occassioned a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding. We are satisfied that in this case the irregularity of the procedure adopted by the learned Magistrate has not occasioned any failure of justice. Even before the charge was framed, all the witnesses for the complainant gave their evidence in the presence of the accused and were cross-examined and after the trial of the accused was separated they were all recalled and further cross-examined. It was open to the counsel for the accused to test the evidence of those witnesses by any amount of cross-examination and even by asking questions which had already been answered in. the examination-in-chief. We are unable to see how the accused was prejudiced by the omission of the learned Magistrate to record the examination-in-chief of those witnesses over again. The procedure adopted by him was undoubtedly irregular, but we do not think that in this case it affords any ground for our interference.
3. Admittedly Abdul Gani is not on good terms with the complainant Aboobakar. His father Ibrahim and the complainant's father-in-law were partners in timber business, and after the latter's death the complainant Aboobakar began to claim his share in the business on behalf of his wife. This led to a litigation between them which aggravated their ill-feelings. Mustaffa, the accused, is Abdul Gani's cousin and out of spite both of them wanted to take advantage of the police raid on the godown and spread false rumours to harm the reputation of Aboobakar.
4. It is not disputed that the information said to have been given by Abdul Gani and Mustaffa to Iqbal and Desai was false and was defamatory and calculated to injure Aboobakar's reputation. But both of them deny having given any such information. It is, however, difficult to believe that Aboobakar would give such an elaborate story and succeed in persuading the two reporters Iqbal and Desai to make statements before the solicitors in support of that story. Had he invented all this story in order to make a false complaint against the accused, he would not have waited for four months for filing the complaint before the Magistrate. On behalf of the accused much is made of this delay, but the inference of the falsity of the complaint, which is ordinarily sought to be deduced from such delay, is negatived in this case by the fact that the evidence of the two principal witnesses Iqbal and Desai was recorded by the complainant's solicitors soon after the incident. The complainant was not asked the reason of the delay or else he might have given some plausible explanation. Perhaps he might have waited to settle the matter without going to a Magistrate.
5. Both Iqbal and Desai fully bear out the complainant's statement. The learned counsel for the appellant pointed out some discrepancies regarding the exact words which were uttered by Abdul Gani and Mustaffa before Iqbal and Desai, but they are extremely trivial and were bound to occur when the witnesses were deposing from memory to the words uttered by the accused two years previously. The statements are substantially similar. They have no reason to falsely implicate the accused. Sub-Inspector Patel corroborates Desai's statement that he had gone to him to verify the information. The learned Magistrate has fully believed both Desai and Iqbal. In his judgment he says:
Both Iqbal and Desai impressed me as truthful witnesses. There was absolutely no reason why they would give false evidence against the accused. Both the witnesses Were cross-examined at length and both stood the cross-examination well.
We have carefully considered their evidence and we agree with the learned Magistrate's appreciation of that evidence. Iqbal says that Abdul Gani first gave information about November 21, 1944. But the accused has examined two witnesses Khan Bahadur Mohomad Hidayatullah and Mr. Deshpande, a pleader, to prove that he was in Poona from November 20 to the morning of November 23. The evidence of these two witnesses has been believed by the learned Magistrate and he has held that between those days the accused must have been in Poona. But as pointed out by him Iqbal must have made a mistake in giving the date of Abdul Gani's giving him the information. Iqbal says that Abdul Gani saw him about the 21st and not on the 21st. In his cross-examination he says that he could not say on what date Abdul Gani gave Mm information, but it was about a week before Bakri-Id festival. Thus it is possible that Abdul Gani might have seen him two or three days before or after the 21st and it was possible for him to meet Iqbal on the 23rd.
6. The evidence of Desai is corroborated by the testimony of Chotalal who was. present both when Abdul Gani gave him information and also when Mustaffa saw him and got the information written out by Abdul Sattar. It is pointed out that Desai does not expressly say that Chotalal was present on both occasions. But Chotalal himself swears that he was present on both the occasions. Desai does not say that Chotalal who was present when Abdul Gani gave the information had gone away before Mustaffa's arrival. Thus there is no inconsistency in the statements of Desai and Chotalal. Nothing is alleged against Chotalal as to why he should give evidence against the appellants to bear out the evidence of Desai. We are satisfied that Iqbal, Desai and Chotalal, who are independent witnesses, have substantially told the truth that the accused gave false information to Desai with a view to have it published in order to harm the complainant's reputation. The accused has been rightly convicted under Section 500 of the Indian Penal Code, and we dismiss his appeal.