1. This is a complainant's revision against the order of the lower appellate Court acquitting the opposite party Vishwanath Bhately of the charge under Section 500, I. P. C., of which he had been convicted by the trial Court and sentenced to 6 months' simple imprisonment and a fine of Rs. 100 and in default to one month's further simple imprionment.
2. It appears that the applicant Hori Lal and Vishwanath Bhately were rival candidates for the Chairmanship of the Town Area Committee of Ek-dil in the district of Etawah. Vishwanath Bhately filed the following objection to the nomination of the applicant: -
1. Sri Hori Lal Ji par dafa ek sau sath kaim raha hae.
2. Unki umar 55 baras se adhik hae jabki sar-kar hata deti hae.
3. We sharabi hain jo ek naitik apradh hae.
4. Sharab aur zaeefi ke karan jab kabhi unmadi jaisi awastha ho jati hae jo pagalpan ka pratham cha-ran hae.
5. Unki cbaritrak bhirisht ke sambandh men sara qasba afwahon se achhadit hae. Hori Lal filed a complaint under Section 500, I. P. C., that the allegations 3 to 5 made by the accused Vishwanath Bhately were defamatory and had not been made in good faith. The accused pleaded justification and asserted that the above allegations were correct Both''the parties examined six witnesses each in the trial Court. The learned Magistrate on a consideration of the entire evidence was not satisfied that the above allegations were correct or had been made in good faith. He was of the opinion mat the defence witnesses were interested and had also enmity with the complainant.
He, therefore, convicted and sentenced the accused. The learned Sessions Judge who heard the appeal did not agree with the learned Magistrate. He was of the opinion that there was sufficient evidence on the record to prove that the allegations which had been complained against were correct and justified. He remarked in his judgment that there was preponderance of evidence in favour of the accused. He, therefore, set aside the conviction and acquitted the accused.
3. It has been contended on behalf of the applicant that the finding of the learned Sessions Judge that there was preponderance of evidence in favour of the accused was not justified from the record. It was also contended that the learned Sessions Judge has not properly considered the evidence on the record and has, therefore, come to a wrong conclusion. It appears from an examination of the record that six witnesses were examined on each side.
It further appears from a perusal of the judgment of the learned Sessions Judge that he has not at all discussed the prosecution evidence nor he has given any reason for disbelieving it. He has only mentioned in his judgment what each of the prosecution witnesses stated in his evidence. He has no doubt discussed the evidence of the accused. It appears from his own judgment that most of the defence witnesses are not independent. As regards D.W. 1 Mahabir Sahai Shukla, Station Officer, P. S. Ekdil, he made the following observation:
'It is true that Mahabir Sahai Shukla stated that he never personally saw Hori Lal actually taking wine. It is also true that he stated that he ne-ver saw Hori Lal roaming about drunk in the streets of the town. But this is not the only way to find out as to whether or not a man indulges jn these in toxicants. He has stated that he found him drunk when, he came to the thana'
As regards D.W. 2 Brij Kishore he has observed as follows:
'It is true that this witness appears to be friendly with some close relations of Hori Lal, which relations are on bad terms with him...... It is true that he has not seen Hori Lal actually taking wine at a wine shop but that will also not prove much. He has seen him in a drunken state. He is expected to know whether or not he drinks.'
As regards D.W. 3 Ram Moorti he has made the following observation;
'It is true that this witness is the family barber of the appellant also. It is also true that he helped the appellant in his election.'
It appears from an examination of the evidence of D.W. 3 Ram Moorti that he stated that he had not been to the complainant for at least one year before his statement. As regards D.W. 5 Munna Lal his observation is that his building was on rent with the Town Area Committee of which the accused was the chairman. As regards Chheda Lal, D.W. 6, he was of the opinion that he was the accused in a case under Section 366, I. P. C. D.W. 4 Smt. Lalita who was examined in order to prove that the complainant had misbehaved with her when she went to his house for some help was not believed by the learned Sessions Judge.
It will appear from the above observations made by the learned Sessions Judge himself that he did not consider the defence witnesses quite independent. There is no doubt that the learned Sessions Judge in deciding the case should have discussed the evidence produced by both the parties and then should have come to the conclusion as to which evidence was correct, In view of the fact that the learned Sessions Judge has not discussed the prosecution evidence at all nor has given any reason as to why if should be discarded, I think the order of acquittal should be set aside on that ground alone.
4. As regards the next contention on behalf of the applicant that there was no good faith of the accused in making the allegations which he did and which formed the subject-matter of the complaint, it has been observed by the trial Magistrate that the nomination of Hori Lal could not be rejected on any of the grounds because they were not the grounds for the disqualification of a candidate for the chairmanship of the Town Area Committee.
It was argued that the defamatory allegations were made in the objection simply with a view to defame the applicant and not for the purpose of challenging his nomination. In support of this contention he has relied on a decision of the Calcutta High Court in Giribala Dassi v. Pran Krishto Ghosh, 8 Cal WN 292 (A). It was held in this case that where the defamatory statement is not relevant to circumstances in which it is made it cannot be said to have been made in good faith and Exception 9 to Section 499 would not come into play.
In this case an ex parte decree had been passed against one Brohmomoyee Dassi. She made anapplication for setting aside that decree. The notice which was taken out against the opposite partywas returned unserved by reason of her absencefrom the house. Brohmomoyee Dassi applied for substituted service against the complainant. She filed anaffidavit in support of the allegations in the application. It was mentioned in the application and theaffidavit that the complainant was of bad characterand that she had left the village and that her whereabouts were unknown. It was held in this case thatthe allegations about the character of the complainant were not relevant in the case and were defamatory and were not protected within Exception 9 of Section 490, Cr. P. C.
It has not been disputed before me on behalf of the accused that the allegations complained of in the present case were not necessary for contesting the nomination of Hori Lal nor they were any of the grounds on which his nomination could be rejected, In the circumstances it is obvious that the defamatory statements were made by the accused simply with a view to defame the applicant and were not in any way relevant to the election. The learned Sessions Judge has, however, not considered at all this aspect of the question in his judgment in spite of the fact that it was clearly mentioned in the judgment of the trial Court.
5. There is, however, no doubt that the allegations referred to above and admitted by the accused were defamatory to the complainant, and unless they are true and were made in good faith or for public good, they are not protected- I do not wish to express any opinion on the question whether these allegations are true and correct and were made in good faith because I have decided to send back the case to the lower Court for disposal after proper consideration of the evidence.
6. This revision is, therefore, allowed and theorder of the lower appellate Court is set aside. Thecase is sent back to the lower appellate Court forre-hearing the appeal in the light of the directionsgiven above.