1. Assuming that the notice contained defamatory matter within the terms of Explanation 4, Section 499 of the Indian Penal Code, and that the communication was not privileged, and taking the facts to be as they were found by the Magistrate, vis., that the notice was concocted between Mr. Vansittart and the petitioner, that, after it had been written in English, the petitioner helped to translate it, and himself sent it by post to Basawan Singh, I am of opinion that the petitioner committed the offence described in t 499 of the Indian Penal Code, both by 'making ' and by 'publishing.'
2. Before I proceed to discuss the question further, I must say a few words upon a point which was, I consider, not sufficiently debated at the hearing. It was assumed at the hearing that the English Common Law offence of libel was something essentially different from the offence of defamation as set out in the Indian Penal Code. And this was said to be so because the reasons for making slanderous imputations indictable were different under the two systems. These statements are, in my opinion, far too broad; and, so being, are not consonant with fact. The material points of difference between the English Criminal Law of defamation [sic] are, I take it, the following:
I.--Whereas the English Common Law makes punishable-
(1) libels on private individuals,
(2) libels on bodies of men and corporations,
(3) libels on official persons,
(4) libels on foreigners of dis } specially reprehensible. tinction,
(5) libels on the dead,
(6) seditious libels,
(7) obscene and blasphemous libels,
the Indian Penal Code provides elsewhere for seditious and obscene and blasphemous libels; and whilst providing in its XXIst Chapter for the punishment of the other libels set out above, marks none of them in particular as deserving special reprehension.
II.--Whereas the English Law does not, except in certain special cases, make defamatory words, not reduced to writing, punishable, the Indian Law makes them punishable.
III.--Whereas the Indian Law constitutes the 'making' of a libel an offence distinct from the 'publishing,' the English Law has not as yet made this distinction, but treats the 'making' as an attempt to commit, or as an abetment of the substantive offence of 'publishing.' The language of the Indian Statute (Section 499 of the Indian Penal Code) is 'whoever makes or publishes,' the language of the English Statute (6 and 7 Vio., cap. 96, Sections 4 and 5) is 'if any person shall maliciously publish.'
3. The statement that the English Law makes the offence of publishing a defamatory libel penal, solely because of the tendency of such libels to provoke breaches of the peace, and that the Indian Law disregards this tendency as a reason for constituting the offence, is, in my opinion, doubly inaccurate, if written or printed libels are referred to. I can find in the Statute Law of neither system any foundation for it at all; and, so far as I am aware, there are no Indian cases in which the question has been raised. If restricted to words spoken to private individuals, the statement (cf. Russell on Crimes, 4th ed., Vol. I, page 3431), so far as the English Law is concerned, is no doubt correct, but we are not now engaged with defamatory matter conveyed by words spoken.
4. Chapter XXI of the Indian Penal Code, forming, as it does, part of a Code, has no preamble setting out the reason for its enactment, but the Indian Law Commissioners, in para. 396 of their Report, dated the 24th June 1847 (Pari. Papers, Indian Law Commission, 1848, No. 330, page 48), write: 'We shall only observe that it would be more proper to describe the Code as disallowing the tendency to irritation not as any criterion, but as the sole criterion of criminality in defamation. It makes defamation an offence independently of any such tendency, because defamatory imputations of the worst kind may have no tendency to cause acts of violence, but the tendency of calumnious imputations to provoke breaches of the peace is undoubtedly one of the reasons for making defamation an offence.' The preamble of 'Lord Campbell's Act' (6 and 7 Vic, cap. 96), the statute under which libels defamatory of private individuals are now punishable in England, runs thus: 'For the better protection of private character, and for more effectually securing the liberty of the Press, and for better preventing abuses in exercising the said liberty, be it enacted, &c.;' The English and American text books treat their tendency to create breaches of the peace as the principal, but not as the sole reason why libels against individuals are indictable. The indictment, according to the form commonly used in England, charges the libel as 'against the peace of our Lady the Queen, her Crown and dignity;' but it also charges it as 'being to the great damage, scandal, and disgrace of J.N., and to the evil example of all others in the like case offending.' I feel myself then at liberty to use English and American cases by way of throwing light upon the points now under discussion. And I would further remark, that it is from the English books that the meaning of many of the expressions used in Section 499 of the Indian Penal Code must be gathered; for an examination of the entire section, with its explanations and exceptions, shows that its phraseology is not that of the old Regulations, but that of the English books. The language of Explanation 4, for instance, is practically the same as that used in the English text books to describe the cases in which an action will lie without; laying special damage, being those in which (cf. Arch., 19th ed., p. 917) an indictment will also lie.
5. In this part of India the offence now called defamation used to be called 'calumny.' The offence was not defined in the Regulations, but its punishment was provided in Section 8 of Bengal Regulation IX of 1793 (VI of 1803). In the Indian Penal Code, as originally framed, the offence of defamation was thus defined: 'Whoever, by words, etc., attempts to cause any imputation concerning any person to be believed in any quarter, knowing that the belief would herm the reputation of that person in that quarter, is said,' etc.
6. The words of Section 499 of the Indian Penal Code with which we are now concerned are the following:
Whoever, by words intended to be read, makes or publishes any imputation concerning any person, intending to harm the reputation of such person, is said to defame such person.
7. That the words of the notice were intended to be read is so plain that I still not stay to discuss the point.
8. It remains to be seen-
(1) Whether the petitioner 'made' the notice.
(2) Whether he 'published' it.
(3) Whether, in making or publishing it, he had, or had not, the intention of harming the reputation of Basawan Singh.
9. I will consider each of these points in order.
(1) 'If one man repeats a libel, another writes it, and a third approves that is written,' says Russell, quoting Bacon's Abridgment, 'they will all be makers of the libel.' And if the writing now in question was prepared in the way in which the Magistrate has found it to have been prepared, there can, I think, be no doubt, with reference to the terms of Sections 107 and 114 of the Indian Penal Code, that the petitioner is as much liable to conviction for 'making' the imputation as he would have been had he been the sole person concerned in composing and committing to writing the defamatory letter.
(2) 'Publishing,' as used in the law under consideration, is clearly a word of second intention. It has come down to us from the Roman Law, and takes the place of edere. What its legal signification is was considered in 1820, in the celebrated case of the King against Sir Francis Burdett, by four Judges (Best, Bayley, Holroyd, JJ., and Abbott, C.J.); and I have not been able to find that the opinions then expressed regarding it have since been overruled.
10. The defendant had been convicted, but it was urged, inter alia, in support of a rule for a new trial, that the mere posting of a letter containing libellous matter was not a publication. The addressee was a third person (the libel was a seditious libel), but it had, in 1798, been laid down in Phillips v. Jansen 2 Esp. 624 that a libel sent to the person libelled might be the object of an indictment. Best, J., said 5 B. and Ald. at p. 126: 'It is assumed that publication means a manifestation of the contents. I deny that such is the meaning of the word 'publication.' In no part of the law do I find that it is used in that sense. A man publishes an award, but he does not read it. Again, he publishes a will, but he does not manifest its contents to those to whom he makes the publication; he merely desires the witnesses to take notice that the paper be which they affix their different attestations is his will. So in the case of a libel, publication is nothing more than doing the last act for the accomplishment of the mischief intended by it. The moment a man delivers a libel from his hands, his control over it is gone; he has shot his arrow, and it does not depend upon him whether it hits the mark or not. There is an end of the locus yanitentia; his offence is complete; all that depends on him is consummated, and from that moment, upon every principle of common sense, he is liable to be called upon to answer for his act....
11. The description of a libeller in our indictments seems to me to have been borrowed from the Civil Law, and I agree that the word edo is represented by our word publish; but I deny that edere means to manifest the contents of a paper. Both in the Boman classics and law books it means the act of delivery, which precedes the manifestation of the contents; and the subsequent manifestation is expressed by some other term, as exponere or manifestari.' Holroyd, J., said (5 B. and Aid. at p. 143):--'In 5 Co. Rep. 126 A., it is laid down that a scandalous libel may be published traditione when the libel, or any copy of it, is delivered over to scandalize the party. So that the mere delivery over or parting with the libel with that intent is deemed a publishing. It is an uttering of the libel, and that I take to be the sense in which the word publishing is used in law. Though in common parlance that word may be confined in its meaning to making the contents known to the public, yet its meaning is not so limited in law. .The making of it known to an individual only is, indisputably, in law, a publishing . . . In the cases of wills and awards, they are constantly made and published without the contents being made known even to the witnesses in whose presence they are published. So that the making known the contents is not in some cases at least, ex vi termini, essential to the constitution of an act of publishing.'
12. Bayley, J., gave no opinion upon the point raised, as he considered that the question of fact, whether the defendant had or had not actually posted the letter containing the libel, or caused it to be posted, was one upon which a special verdict should have been taken.
13. Abbot, C.J., said (5 B. and Ald. at p. 160):--' It was further contended' that the word publication denotes an actual communication of the contents of the writing by the publisher to some other person, and we were referred to dictionaries for the sense of the word publication. But in the law, as indeed in other sciences and arts, some words are used in a peculiar sense, differing in a certain degree from their popular meaning. Thus in the language of the law, we speak of the publication of a will, and the publication of an award, without meaning to denote by that word any communication of the contents of these instruments, and meaning only a declaration by the testator or arbitrator, in the presence of witnesses, that the instrument is his testament or award. In like manner the publication of a libel does not, in my opinion, mean an actual communication of the contents of the paper.'
14. There can then, in my judgment, be no doubt that the posting of the defamatory matter by the petitioner was a 'publishing.'
(3) In considering the third point, it is immaterial whether the petitioner both made and published, or only made or published, the defamatory matter. Neither the making, nor the publishing, was an offence, unless it was made with the intention of harming the reputation of Basawan Singh. And it is contended on behalf of the petitioner that he had no such intention.
15.The form which was given to this contention in the written grounds of revision was the following:
It is proved that the words in the notice sent by your petitioner were suggested and written by a competent legal adviser, and consequently it is not right to infer that the allegation they contain was made maliciously and with intent to defame.' And it has also been suggested--
(a) That under no circumstances can a writing which is sent in a closed cover to the person whose reputation is aspersed by it be said to be sent with intent to defame; for if on receiving it that person at once destroys it, defamation by it becomes impossible.
(b) That the Courts, both in England and in India, have held this to be so.
16. As to the plea taken in the written grounds of appeal, I observe that if Mr. Vansittart had supposed the despatch of the notice to be likely to result in the conviction and punishment of his client, it is improbable that he would have allowed it to be dispatched; but it is very probable that Mr. Vansittart suggested the form in which the writing was dispatched as one which would be absolutely privileged. There is, therefore, in my opinion, no force in this contention.
17. Regarding the former of the verbal pleas, I remark that if it were certain that a person slandered by a writing sent to him would be sure to destroy the writing, and thus prevent his reputation being harmed by it, the plea would be unanswerable. But is it certain that this is the course which every person slandered would, or with reference to the circumstances of his position, could adopt? I think not. It is, I think, easy to conceive of cases in which the probabilities would lie in the opposite direction. Take, for instance, the case (a by no means improbable case in this country) of a spiteful master, from whose service an illiterate servant has asked for his discharge, and a certificate of good character on leaving; of the master saying--'All right, be off; I haven't time to write a certificate now, but give me your address, and I'll send one after you.' Afterwards the master, knowing that what he was writing was false, and that the natural course for the servant to follow on receiving the certificate would be to take it to some one to be read, or direct to his next employer, sends in a closed cover to the servant a certificate in which he describes the servant as a rogue and a thief. I cannot doubt that the offender in such a case would be punishable for defamation. Section 114 of the Indian Evidence Act, 1872, provides that the Court 'may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.' And it seems to me impossible to lay down a hard-and-fast rule of the nature contended for on behalf of the petitioner. It seems to me possible to conceive that in some cases the sender of slanderous matter to the person slandered might have no reason to suppose that the receiver would let it go further; but, on the other hand, it seems to me just as possible to conceive that in some such cases the slanderer might have every reason to suppose that the receiver would be compelled, by the exigencies of his official position or other causes, to allow the slander to become known to others; and when the sender has 'reason to believe' that will be so, he surely, as it seems to me, brings himself--all other conditions being satisfied--within the terras of Section 499 of the Indian Penal Code.
18. I now come to the latter of the verbal pleas, viz., that the Courts, both in England and in India, have held a libel addressed to the person slandered not to be within the grasp of the law. The only Indian cases in which the point has been directly raised which were cited, and I have been able to find, are Komul Chunder Bose v. Nobin Chunder Ghose 10 W.R. 184 and Mahomed Ismail Khan v. Mahomed Takir N.W. P.H.C. Rep. 1874. p. 38. The latter case merely follows and approves the former, and the report is so meagre that but little can be ascertained from it. In Komul Chunder Bose v. Nobin Chunder Ghose 10 W.R. 184 Macphbkson, J., said: 'I am of opinion that this appeal ought to be dismissed, because I think that the judgment of the Lower Appellate Court, is substantially right. The suit is brought for damages for defamation of character. The defamation is contained in a letter written and sent by the defendant to the plaintiff. The damage alleged is the injury to the plaintiff's feelings; and in the plaint no allegation is made of any publication of the libel beyond its being stated that the letter was sent to, and read by, the plaintiff himself. It appears to me that the plaintiff's case is deficient in several respects. In the first place it is not proved that there was any publication, for it is admitted that the letter was addressed to the plaintiff himself, and it was not proved that the letter was read by anybody excepting the plaintiff. It is now said that it might have been proved that the letter was in fact received in the first instance and opened by the nephew of the plaintiff. Admitting, however, that the plaintiff could have proved this, the fact of the letter being opened by the nephew, or by any one else, would not constitute publication by the defendant, unless the plaintiff could have gone further and also proved that the defendant, when he dispatched the letter, knew that in the ordinary course of business in the plaintiff's house the letter would be opened and read by the nephew or by some one else other than the plaintiff himself.'
19. In holding that the sending of the writing to the party himself, without proof that it was read by any other person, did not constitute publication, the learned Judge was no doubt following the case of Phillips v. Jansen 2 Esp. 624 and in suggesting that if it had been shown that the defendant knew it to be the ordinary course of business in the plaintiff's house for letters to be opened and read by the plaintiff's nephew, or some one else, there would have been publication, he was probably following Delacroix v. Thevenot 2 Starkie. 63. But all these cases (both English and Indian) are cases of civil actions; and in Phillips v. Jansen 2 Esp. 624 it was said that delivery to the party libelled was a sufficient publication to support an indictment The English and American law upon the point seems to be settled. In Russell on Crimes (1st ed., Vol., p. 356), it is said: 'Proof that the libel was contained in a letter addressed to the party, and delivered into the party's hands is sufficient proof of publication upon an indictment or information;' and in a foot-note Mr. Greaves brings out the difference in this respect between an indictment and an action. Mr. Bishop (Bishop's Commentaries on the Criminal Law, Boston, 1877, 'Vol. II, p. 576), writes: 'The full criminal offence is committed by sending the libel to the one libelled, though it reaches the ears of no third person. But for this the civil action cannot be maintained.'
20. It has been contended, as has been noted above, that the reason for this difference between the law applicable to a civil action and to a criminal indictment is, that in the criminal indictment the law concerns itself solely with the tendency of a defamatory libel to provoke a breach of the peace, and that the danger of that result is as great when the libel is communicated to the person libelled as it is when the libel is communicated to others as well. I have already indicated my opinion that this contention is erroneous. And I find that in Beg. v. Brooke 2 Cox, C. C. 251 (a case of 1856 and so far as I have been able to ascertain, the latest case on the point) on the trial of an indictment for libel, the only evidence of the publication of which was the sending it in a letter to the prosecutor himself, and the receipt of it by him, it was held (against the contention of the counsel for the defendant, that it was absurd to say a man was injured in his reputation by a letter addressed only to himself) that there was sufficient evidence to go to the jury, although the indictment contained no allegation of an intent or a tendency to provoke a breach of the peace. So also in an American case cited by Mr. Bishop (ibid p. 579) it was held that a letter by a man to the wife of another (in a State where adultery is felony), implying that she had acted libidinously towards the writer, and bad invited him to have adulterous inter course, the object of the letter being to insult and abuse her, debauch her affections, alienate them from her husband, entice her into adultery, and bring her into disgrace and contempt, was an indictable libel. And in an Indian case which was cited to the Chief Justice and myself at the first hearing viz., Shepherd v. The Trustees of the Port of Bombay I.L.R. 1 Bom. 477 Green, J., remarked: The sending of defamatory matter to the person himself who is affected by it, though it may form a ground for criminal proceedings, is, so far as a civil action for damages is concerned, protected, and does not constitute a cause of action.' There seems to me to be good reason why this should be so, independently of the tendency of slander to provoke a breach of the peace. In a civil action, with reference to the damage caused to the plaintiff, 'actus facit reum.' In a criminal action 'actus non facit reum, nisi mens sit rea.' In is the evil mind which makes the defendant liable, and not the actual dasmage caused by the act. The reason of the existence both of the civil and' of the criminal action for slander is the same, the necessity, namely; of providing a remedy to which an injured person may resort, and may thus be prevented from avenging himself; but in the one case, if the libel passes direct to the person libelled, the damage for which compensation is given must, if sustained, have been to some extent caused otherwise than by the act of the defendant--the plaintiff must, in fact, have contributed to it. In the other case the evil mind which the law punishes is made apparent, and the guilt of it is fixed as soon as the 'arrow is shot.'
21. A man is held in law to intend the natural consequences of his acts, and in considering the case now before us, we must apply the provisions of Section 114, Act I of 1872. So doing, I note that the petitioner asserts his intention to have been to bring a suit as declared in the notice; that if the suit had been brought, the first thing to have been proved in it would have been the notice itself; that if a suit had been brought, it would have been brought against Basawan Singh on account of a thing purporting to have been done by him in the execution of his duty; that Basawan Singh would surely have moved Government to defend the suit on his behalf; that the officer of Government to whom such application might have been made, would surely have asked Basawan Singh if notice of the action had been received, and on being told that it had been, would have called on Basawan Singh to produce it; that knowing that this would be so, and having no reason to suppose that a suit would not be brought against him, Basawan Singh would naturally think it best to show the notice at once to his superior officers; that, as a fact, this is what Basawan Singh did; and that the appellant is a man of intelligence and position, with moans of knowing what would be the line of conduct which Basawan Singh would be likely to adopt.
22. Upon this view of the case, I find it impossible to doubt that, in sending the notice to Basawan Singh, the petitioner intendad to harm the reputation of Basawan Singh. My reply therefore to the question put to the Full Bench must be, as indicated at the outset of these remarks, that, assuming the points conceded for the sake of argument, by the order of reference, the petitioner has been rightly convicted under Section 499-500 of the Indian Penal Code.
23. I regret that I am unable to agree with my brother Duthoit in the conclusion which he has arrived at upon the question referred to us. I take it that in the Full Bench we are not in possession of the whole cage, so far as regards the minute details of evidence, or as regards the punishment which has been inflicted. The question before us is an extremely limited one, namely, whether or not a libellous communication made only to the person whose character is attacked amounts to the offence of defamation as defined in Section 499 of the Indian Penal Code? I am anxious to say that the question we have to consider is so limited, because the paper-book shows that the accused in the present case was never tried for any other publication than that which consists in making a communication to the prosecutor himself. Now, in the first place, without considering it necessary to refer to the English authorities, I take it that, according to both the English and the Indian Law, communication of libellous matter to the complainant only is not sufficient to sustain a civil-action. So far as criminal indictments are concerned, the rule of English Law as to publication seems to be similar to that in civil cases, but subject to an important proviso, namely, that where defamatory matter has been communicated to the prosecutor only, and it is established that such communication was made with the object of provoking the prosecutor to commit a breach of the peace, the libel would amount to a criminal offence. If it could not be proved that the publication to the prosecutor only was intended or calculated to provoke a breach of the peace, there would be nothing to support an indictment, even though the tendency of the libel be to vilify the prosecutor and degrade him socially or professionally, if the libel were communicated to third parties.
24. Now, to arrive at a conclusion as to the law of India upon this point, we must look to the terms of Section 499 of the Penal Code, read as a whole, with all the explanations, illustrations, and exceptions which it includes. In the first place, the words in the body of the section itself must be considered: Whoever, by words, either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing, or having reason to believe, that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.' This is the substantial part of the section, and it appears to me that the most important words in it are: 'intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person.' I lay special stress upon the word 'harm,' because the words 'makes or publishes' are governed by the meaning which we must attach to 'harm.' Now, the meaning which should be attached to 'harm' is not the ordinary sense in which the word is used, because a special meaning is given to it by the statute, and I feel convinced that if we interpreted the expression in the ordinary way, we should interpret it erroneously. This is shown beyond a doubt by Explanation 4, which provides that--'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 in respect of his caste or of his calling or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.' This explanation convinces me that by 'harm' is meant imputations on a man's character made and expressed to others, so as to lower him in their estimation, and that anything which lowers him merely in his own estimation, certainly does not constitute defamation Now, in the case which has been referred to us, taking the reference as it stands, there were imputations communicated to the prosecutor only, and therefore they cannot be treated as defamatory. The letter could not have injured the prosecutor in the estimation of others, and of course it is not likely that it injured him in his own estimation, and I am unable to hold that a man's opinion of himself can be called his reputation. Further, the words 'directly or indirectly' in Explanation 4, mean that the person defamed must either be abused in express terms, or the wording of the communication must convey such imputations as any person reading it must understand to impute misconduct or bad character. The words cannot, in my opinion, be understood to mean that the person libelled should himself be the direct means of publishing the libel to others. Taking the question before us as limited in the manner which I have described, I am of opinion that in the present case the act of the petitioner was not such a 'making' or 'publication' as could 'harm' the prosecutor in the sense given to that word in Explanation 4 of the section.
25. To return for a moment to the English Law on the subject, the essence of libel as a criminal offence is its tendency to provoke a breach of the peace. This is the turning-point of the offence in cases where the matter complained of is communicated to the prosecutor alone. Now Section 504 of the Indian Penal Code meets such a case exactly. It provides that 'whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.' This provision corresponds precisely with those cases in which, under the English Law, defamatory matter published to the prosecutor alone would be indictable us libellous.
26. In the present case the accused was not tried for publishing the libel to Mr. Vansittart or to the clerk, and even if he had been so tried, he might possibly have pleaded that the communication made by him was privileged, and could not be proved, and he might have raised other pleas in his defence. But with such questions as these we are not now concerned. The charge was made solely in respect of the communication of the letter to the prosecutor, upon whom it was incumbent to prove that the letter was so made or published as to do him 'harm' within the meaning of Section 499 of the Penal Code. I hold that, taking the case as it has been referred to us no such charge has been established. If the accused were charged with having intended that the letter sent by him should cause a breach of the peace, he might have been punishable under Section 504, but it has practically been admitted that he had no intention of the kind. My reply to the reference, therefore, is that the elements of the offence punishable under Section 499 of the Penal Code have not been proved by the prosecution, and that the question must be answered in the negative.
27. I also am of opinion that the act of the petitioner was not such a making or publishing as is contemplated by Section 499 of the Indian Penal Code.
28. We have to determine the question before us only with reference to the provision in Section 499 of the Penal Code, and to no other law. Where the words containing the imputation are in writing, it is necessary, in order to constitute the offence of defamation under Section 499 of the Penal Code, that the maker of the imputation shall intend that the words shall be read, that is, read by some other person than the person defamed, or, in other words, that they shall be made public, for the essence of the offence of defamation in the Penal Code is the intention to harm reputation, and that necessarily requires publicity to be given to the imputation. The offence is not dependent on there being provocation to cause a breach of the public peace, that offence being otherwise provided for in the Code.
29. We have to determine this intention from the facts in each case. Where the only act is to send a letter under a closed cover to a person, containing imputations against him, the intention to make public its contents so as to harm This reputation cannot be inferred, and I see no difference in this case, where tab writing took the form of a notice of an action, and no more was done than to send it to the complainant under a closed cover. Any publicity given to its contents, and consequent harm to reputation, was or could be only by the act of the complainant, and not by that of the accused. It. rested with the former to publish the contents or not; the latter might have taken steps in other ways to give it publicity, but did not; and the circumstance will not justify us in holding that he intended that the contents should be made public, and so harm the reputation of the complainant. In my opinion, therefore, the answer to the reference should be in the negative.
30. As one of the Judges who referred this case to the Full Bench, I wish to say that the words in the order of reference, 'in sending the notice in a closed cover by post to Basawan Singh,' should be struck out; and the question will then stand whether the whole action of the appellant did or did not constitute an offence under Section 499 of the Penal Code. That was what we intended to refer to the Full Bench.
31. In my opinion there was no evidence against the defendant of the commission of any offence whatever. The question before us is a very small. one--simply the construction to be placed upon Section 499. Before the Penal Code was passed, there was under the native laws no such offence as slander, and the offence was in fact created by Section 499. This is in itself a short section, but it contains many illustrations and exceptions. If we look at these illustrations, we must observe that they all deal with such communications only as are made to third persons. So also each of the exceptions relates to such communications, and not to publications only to the person defamed. It is therefore no violent presumption that the framers of the Penal Code did not intend to create a new offence in that sense. The only question is, whether the terms of the section are so distinct as to make the action of the appellant in this case a crime. The only way in which you can make it a crime is to hold that by doing something which makes, or is likely to make, the prosecutor harm himself the provisions of Section 499 are violated. But the section itself does not say so. Here no imputation was made except to the policeman himself. How could such an imputation possibly injure his reputation? A man has no 'reputation' to himself, and therefore the section does not make an act of this nature a crime. It follows that the sending of the letter was not 'making' or 'publishing' an imputation within the meaning of Section 499. As to the rest of the charge against the prisoner, there was no reliable evidence to support it, The only evidence at all consisted of two statements made by the prisoner in the presence of the Magistrate, but it is only by straining the language of these statements that they can be regarded as confessions, for it is clear that the prisoner did not mean to say either that he composed the letter himself, or that he was aware of its contents. I am therefore of opinion that the conviction should be set aside; that the fine which has been paid should be remitted; and that, if any further reparation to the prisoner is possible, such reparation ought to be made.