1. Notices issued to the opposite side have not been received back, but the Assistant Government Advocate is present, so I have proceeded with the hearing of the application. One Mohan Lal, a Lohar, complained against the opposite parties, under Section 499, I.P.C., on the ground that at the time of a feast of the brotherhood the accused persons declared that the complainant had been outcasted and was not one fit to sit down at the feast with the other members of the brotherhood. The Magistrate of the trial Court, who appears from the manner in which his order is recorded, to have been too much in a hurry, dismissed the case. There is no such expression in the Criminal Procedure Code as the dismissal of a case. If the Magistrate had been in less hurry and better cognizant of his responsible duty as a Magistrate, he would possibly have said that he dismissed the complaint. It is astonishing to me that a Hindu Magistrate, who must be well acquainted with the terrors of caste, should say that there was no case worth consideration when an imputation had been made that a certain person was out of caste. The complaint is dismissed under Section 95, which declares that nothing is an offence by reason of its causing harm so slight that no person of ordinary sense and temper would complain of such harm. These provisions do not apply to the imputation made by the accused person if it was really made. Among Hindus it would cause the gravest harm to allege that a man was out of caste. If this was believed a Lohar would have to give a feast to his brotherhood to come back into caste.
2. The learned Judge, in revision, admitted that the words used were in themselves of a defamatory nature. He then goes on to say:
The complaint shows, however, that Mohan Lal's character was in fact not lowered in the estimation of others.
3. It is difficult to understand where the learned Judge obtained this information, because it is not contained either in the complaint, or in the complainant's statement. Possibly, though he does not say so, the learned Judge was thinking of Expl. 4, Section 499 which says:
No imputation is said to harm a person's reputation unless that imputation directly or indirectly in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste.
4. As the learned Judge is not explicit, one can only guess at his reasons. Possibly what he means is that as the charge was found on the spot to be false after inquiry the moral character of the complainant in respect of his caste was not lowered. That consideration, however, cannot arise when the statement is admitted by the learned Judge himself to he by itself defamatory. A defamatory statement was made and the complainant says that he did suffer thereby. The statement is all the more defamatory when the complainant, as he alleges, succeeded in proving that it was false, and induced the members of his brotherhood not to act upon the statement. As far back as 1887 a Bench of two Judges of this Court observed as regards this Expl. 4, Section 499:
The explanation does not apply where the words used and forming the basis of a charge are per se defamatory. When an expression, used verbally or in writing, is doubtful as to its significance, and some evidence is necessary to decide what the effect of that expression will be, and whether it is calculated to harm a particular person's reputation, it is possible that the principle enunciated in Expl. 4, Section 499 might, and would with propriety, be applied. But in this case there is no question as to the significance or meaning of the words written. They are distinctly defamatory within the meaning of Section 499 and as such the respondent is clearly responsible, and, unless she can show that her case falls within any of the exceptions to the section, it was and is impossible for her to resist a verdict of guilty: Empress v. McCarthy  9 All. 420.
5. The complaint makes out a clear case of defamation and the matter should be tried out.
6. I set aside the orders of the two subordinate Courts and send the complaint back to the District Magistrate of Jalaun with a request that it may be sent for trial to a Court having jurisdiction other than the Court of Pandit Ram Gopal Misir.