1. This is an application in revision from an order in appeal reversing a conviction and fine inflicted under Section 500 of the Indian Penal Code. To out a long story short, it is the climax of a long controversy between some high class Brahmins in a village in the District of Dehra Dun on the one side and some persons in the same village who call themselves 'Rahtia Sikhs' who have settled there in order to engage in trade, having removed from the Punjab, who are regarded as Chamars or 'untouchables' by the other side and as persons unable to supply themselves with water from the village well without defiling it and injuring the feelings of the high class people who want to use it.
2. The case took the form of a complaint, dated the 16th May 1919, in the Magistrate's Court of Dehra by certain of these Rahtia Sikhs, who are also Arya Samajists, against one Arjun Dutt, a Brahmin, for having stated in his evidence in a previous case relating to the well that the complainants were 'Chamars'' and what is said to be worse, 'Ramdasi Chamars.' Secondly the complaint was against Ram Chander, also a Brahmin, for having stated publicly in the village about the complainants that the men were Chamars. With regard to the second complaint it is only necessary to say that no conviction took place with regard to it. It was not the subject of the appeal and is not before me. I have to deal only with the statement of Arjun Datt in Court. It is obvious that there has been a long and bitter strife between these two parties on caste and religious grounds. Those grounds are of course largely grounds of sentiment, but it is in respect of such sentiments that many people feel most strongly and resent most keenly imputations upon their positions. Even a trivial and what may at first sight seem an almost absurd slander may become a serious matter, if it is not a mere casual observation but repeated persistently and deliberately with the object of annoying and wounding the feelings of another person. The object of the law is to stop the tongue which is an unruly member, and great harm may be done by bad words when it is intended to do harm by them. In England such injuries are in general stopped by an injunction in a Civil Court. In India resort is had to the Criminal Law. I sympathies with the learned Judge's protest against a case of this kind being prolonged in a Subordinate Magistrate's Court for seven months and developing into a judgment of scores of closely written pages of history and law. But if people have a grievance they have a right to have it decided. The business of the Courts is to keep the matter as far as possible within reasonable limits, but in a case of this character which is hotly contested it is almost impossible to give it summary treatment. Examples from the books may be easily cited where a plaintiff has recovered no more than a farthing damages, but the struggle on both sides for victory has occupied a very considerable space in public attention. Therefore, the mere fact that the case appears to be a trivial one and the parties to have traveled far outside the immediate matter in controversy is not a, ground for declining to consider the real merits of the case. Whether a slander upon a humble individual is serious or trivial must depend not upon the controversy provoked by the use of the words but upon the extent to which it has been repeated and the circumstances, namely, temporary or casual or deliberate, in which they have been uttered. I have said all this for this reason. It has been urged upon me that it is contrary to the practice of this Court to interfere in revision with a judgment of acquittal, but where it is plain that the learned Judge for reasons outside the merits of the dispute has really declined to decide the controversy and has dealt with matters which really do not decide the complaint before him, it seems to me that it is like a case in which, if it had been a civil enquiry, he would have failed to exercise his jurisdiction and, therefore, a fortiori a case in which this Court in a criminal matter is bound to interfere although the learned Judge has decided that this case ought to be dismissed because he regards it as contemptible and not worthy of serious treatment. He has not decided whether or not an offence has been committed, and if so, what offence. In my view he was bound to do so, and no Court can satisfactorily dispose of a case of this kind, however trivial, without first clearing its mind as to what it has to decide. In a complaint under sections 499 and 500 for a criminal act in respect of words spoken, the first issue to be determined is this :--Were the words spoken and published by the accused concerning the complainant The learned Judge has not decided that point. The second question is : are they defamatory In India 'defamatory' means, or may include, words which 'directly or indirectly lower the character or credit of a person in respect of his caste or calling.' I am not going to say that it is necessary in this case to decide absolutely whether or not the complainants are 'Chamars'. As a question of fact I can understand that it would not be defamatory to use the expression 'Chamar' about a person who, although not technically a Chamar, was certainly no better or even in a lower grade of society than a Chamar, but to say of an Indian, who happens to be of a caste with which the 'Chamars ' are not allowed to and do not in fact associate, that he is a 'Chamar' or that he belongs to an 'untouchable' class would undoubtedly be defamatory and might be, under certain circumstances, a serious defamation. Unless, therefore, the defendants are able to show that these persons are of that casts, it will be the duty of the Court to decide as a question of fact, which I, sitting in revision, cannot do, whether the word, 'Chamars', as applied to these people, is or is not defamatory, and in my opinion, no amount of weariness or dissatisfaction with the volume of evidence can allow a Tribunal to escape a decision upon that point. The learned Judge has decided part of this case upon a ground which was pressed very strongly upon me by Mr. Saila Nath, who supported the judgment. He first erroneously holds that the onus is upon the complainants. That is not correct if the words are defamatory. He then goes on to say that the complainants by their own conduct have raised a strong presumption that they are what the appellant alleges them to be. Then he refers to a compromise in a previous litigation. These complainants agreed not to draw water from this well themselves, to pay the Kahars for drawing it and not to make any dispute in future. That agreement was entered into by way of compromise of legal proceedings before the Joint Magistrate. The Joint Magistrate had in those proceedings of his own motion added charges under Section 107 and he himself says that with regard to one of the parties he intimated that he would bind him down under that section, if he did not sign the agreement. That is not undue influence, but it leaves it perfectly open whether this agreement was entered into by the complainants because they are Chamars and could not help themselves, or because they did not wish to prolong the fight and preferred temporary peace or because, which is far more likely, they wanted to please the Joint Magistrate. He was the Magistrate in their district and if their refusal would not have caused them inconvenience it is quite certain that their consent would, in their opinion, give him pleasure and, therefore, I think it was wrong of the learned Judge to hold that the mere fact of entering into that agreement was sufficient to justify sailing these people Chamars.
3. The next issue to be determined is whether the allegation is true and also whether it is for the public good that it should be published, This is contained in the first Exception to Section 499, which contains the whole code of criminal libel in India. Inasmuch as this alleged slander was made by a complainant in the course of his deposition at a criminal enquiry, in my opinion, it was made honestly in the course of that enquiry with the object of establishing the claim which the complainants in that case were making to prevent these Rahtia Sikhs from using the well. It would be for the public good within the meaning of the first Exception, that it should be stated in Court in the course of such proceedings, but that question is also a question of fact which is not for me but for the lower Court to decide.
4. A further issue is raised upon the tenth Exception. These words would not be punishable as defamation if they were used to caution for the good of the person to whom the caution was conveyed. That is very much the same as public good under the first Exception but may be found as an independent question of fact under Exception 10. It is further contended before me that either Section 76 or Section 79 may be applicable to this case, and if they are, they would be an answer to the complaint, I do not think Section 76 can possibly apply. The accused person was certainly not bound by law to go into the witness box and make the statement at all. The question might arise under Section 79, whether he really believed himself to be justified by law in making the statement. That also is a question of fact for the lower Court, The lower Court (I regret to have to remit the case) must decide these questions for itself in the appeal from the original conviction, which mast stand unless it is reversed according to law, and it must bear in mind that the on us of showing the truth, the good faith, the public good, the, justification by law and other matters to which I have referred as an answer to the complaint rests upon the person making use of the defamatory expressions and it must also bear in mind, of which juries are constantly reminded in these cases, that a pulpit or rostrum like a witness box from which attacks upon a person's character may often safely be made (and it is right in the public interest that they should be made without risk of attack), is sometimes utilized for an underhand, malicious and super fluous attack upon the individual it is intended to injure, and, therefore, if it be a fact that the accused did not act in good faith but used an offensive expression which was unnecessary to the case and intended to injure, that would be a reason for convicting and inflicting a substantial fine such as the Magistrate did inflict. The fact that the Magistrate thought that the offence was punishable by a fine of Rs. 100, shows that he really did not consider the matter as a trivial one. The order is that the revision be allowed and the case restored to the file of the Sessions Judge to hear the appeal according to law.