Grimwood Mears, Kt. C.J.
1. This is an application in revision to set aside a conviction for criminal defamation. A preliminary point has been taken by the opposite party, which is that the matter ought not to have been brought direct to the High Court from the court of the convicting Magistrate, but should first have been submitted to the intermediate court of the Sessions Judge.
2. Mr. Ross Alston for the applicant has argued that in cases where the lower court has no power to grant the relief claimed the party aggrieved may proceed straight to the High Court without referring the matter to the consideration of the lower court which, as the case may be, will be either that of the District Magistrate or the Sessions Judge. In support of this contention he has cited many authorities, none of which however decides in terms the proposition that he has put forward.
3. We are of opinion that the correct rule of procedure is that set out in the judgment of Mr. Justice Piggott in Emperor v. Mansur Husain (1919) I.L.R. 41 All. 587. He says: 'It is obviously advisable that this Court should make it a rule of practice that a person dissatisfied with any order or proceeding in a court of inferior jurisdiction to that of the Sessions Judge or of the District Magistrate should, in the first instance, obtain the opinion of the Sessions Judge or of the District Magistrate, on the matter in question, before invoking the jurisdiction of this Court. Such a procedure tends to prevent the time of this Court from being wasted over frivolous or unsustainable applications; it also ensures the further advantage that, if the matter eventually comes before this Court, it comes upon a record containing an expression of opinion by a court of superior jurisdiction, such as that of the Sessions Judge or of the District Magistrate. I am further opinion that, if such a rule of practice is once laid down, it ought to be enforced evenly and without making capricious exceptions in favour of particular applicants.'
4. Now there is a broad understandable general rule which in the opinion of the learned Judge should apply to all cases. We are of opinion that that should be the practice. There are other cases to be found in Empress of India v. Nilambar Babu (1879) I.L.R. 2 All. 276, Gullay v. Bakar Husain (1905) I.L.R. 28 All. 268, Shafaqat-ullah v. Wali Ahmad Khan (1907) I.L.R. 30 All. 116, all of which show that there has been no question at all that where the District Magistrate or Sessions Judge has a concurrent jurisdiction, it has been regarded as essential that the matter should first be submitted to the District Magistrate or the Sessions Judge, as the case may be.
5. In a case to which we have bean referred, Emperor v. Abdus Sobhan (1909) I.L.R. 36 Calc. 643, the Calcutta High Court had no doubt that an application for revision should not be entertained in cases where the Sessions Judge or the District Magistrate had concurrent jurisdiction; but they thought there was no such general rule where the position of the Sessions Judge, or District Magistrate, was such that he could not grant the relief applied for.
6. We think that there should be one general uniform rule of practice, covering all cases of revision, because the position of a District Magistrate or Sessions Judge is not that of a mere automaton even in cases where he cannot grant the relief which is asked. He has power to reject; and in cases which are clearly unsustainable a rejection by him does no doubt in some cases have the result that the matter is not subsequently pursued to the High Court. He also in every case which comes up to this Court sets out the circumstances and records, his opinion, and we regard that as a matter of importance and value to this Court We, therefore, hold that as far as the practice of this Court is concerned, an application to the lower court should be considered an essential step in the procedure; and that should be so whether the District Magistrate or Sessions Judge has power to grant the relief or not. In future, therefore, failure on the part of the applicant to submit his application to the lower court will operate as a bar to the application being; entertained by this Court.
7. As, however, in the course of the argument it became plain to us that the conviction in the present case ought not to stand, we thought it better, in this particular instance, to save the time of the lower court and of this Court by disposing of the matter.
8. The facts can be very shortly stated and are that during the hearing of a civil suit on the 1st of June, 1920, in the case of Ramji Lal against the Municipal Board of Kairana, a question arose as to the authority of the acting Secretary of the Municipal Board to sign and verify the written statement on behalf of the Board. The complainant in this case, Qabul Singh, and Sharif Ahmad (the opposite party) are both vakils. The former was present in his professional capacity representing Ramji Lal, and the latter (who is also the Chairman of the Municipal Board) was also in court. When Qabul Singh took the objection as, to the authority of the clerk he added that the pay of Ram Chandra Sahai was only Rs. 10 to Rs. 15 a month. Thereupon, according to the evidence, Sharif Ahmad broke in and said 'Ram Chandra Sahai's status is higher than yours.' Remarkable as it may seem, this is the utterance which caused Qabul Singh to commence criminal proceedings. It is said there was pre-existing ill-feeling between the parties and the tone of the remark was contemptuous. But even allowing for this the occurrence was in our opinion of so trivial a nature that no person of ordinary balance, sense and temper would have made it the subject of criminal proceedings. It was an ill-bred and ill-mannered remark, and in the circumstances a foolish one as well, Mr. Satya Chandra Mukerji, who appears for Qabul Singh, admits that in view of the position of Qabul Singh no one in Court could have taken the remark seriously. That being so, no harm could be suffered by Qibul Singh, and we, think that the Magistrate should have dismissed the proceedings as being vexatious and frivolous. Two similar cases have been cited to us which show the disapproval with which this Court entertains proceedings of this kind. They are Empress v. Vansittart Weekly Notes 1883 p. 46 and Empress v. Amir Hasan Weekly Notes 1883 p. 167. We need not do more than give the references, but we entirely approve the point of view of the tribunals who tried those cases. We, therefore, think this is a conviction which should be set aside and that the learned Magistrate should have considered the case as one properly falling within Section 95 of the Indian Penal Code and should have dismissed it.
9. We, therefore, set aside the conviction, and order that the fine of Rs. 10, which we are told has been paid, should be refunded.