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 be das pat forward.
3. We are of opinion that the correct rule of procedure is that set out in the judgment of Mr. Justice Piggott in Mansoor Husain v. Emperor 50 Ind. Cas. 827 : 41 A. 587 at p. 591 : 20 Cr. L.J. 347 : 1 U.P.L.R. (A.) 45 : 17 A.L.J. 800. He says: 'it is obviously advisable that, this Court should make it a rule of practise 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 of 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 2 A. 276 : 1 Ind. Dec. (N.S.) 732, Gullay v. Bakar Husain 28 A. 268 : 3 Cr. L.J. 53 : A.W.N. (1905) 279, Shafaqat Ullah v. Wall Ahmad Khan 30 A. 116 : A.W.N. (1908) 25 : 3 M.L.T. 124 : 7 Cr. L.J. 48, 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 chat 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 been referred, Emperor v. Abdus Sobhan 2 Ind. Cas. 846 : 36 C. 643 : 13 C.W.N. 753 : 10 Cr. L.J. 190, the Calcutta High Court had no doubt that an application for revision should not be entertained in ages where the Sessions Judge or the District Magistrate had concurrent jurisdiction; but they thought there was rife 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 mare 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 errant 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 is 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 fasts 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 Ram, 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 thin case, Kabul Singh, and Sharif Ahmad (the opposite party) are both Vakils. Tae 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 Kabul Singh took the objection as to the authority of the clerk, he added that the pay of Ram Chander Sahai was only Rs. 10 to Rs. 15 a month. Thereupon according to the evidence Sharif Ahmad broke in and said: 'Ram Chander Sahai's status is higher than yours.' Remarkable as it may seem, this is the utterance which caused Kabul 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. Bat even allowing for this, the occurrence was, in our opinion, of so trivial a nature that no person of ordinary balance, sense a id 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 Chander Mukerji, who appears for Kabul Singh, admits that in view of the position of Kabul Singh no one in Court could have taken the remark seriously. That being so, no harm could be suffered by Kabul 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 entertained proceedings of this kind. They are both to be found in Volume Hi of the Allahabad Weekly Notes for the year 1883 and are reported respectively at pages 6 and 167, They are Empress v. Vansittart A.W.N. (1883) 46 and Empress v. Amir Hasan A.W.N. (1883) 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.