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Emperor Vs. Jhabbar Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1928All222
AppellantEmperor
RespondentJhabbar Mal and ors.
Cases ReferredEmpress v. Girjashanker Kashiram
Excerpt:
- - the evidence is that this appointment caused annoyance to certain persons who have been named, on the ground that there was something like an hereditary right in their family to the reversion of this post, and it has throughout been part of the complainant's case that his position was made difficult in the state by reason of the ill-feeling generally that was felt at the introduction of an outsider. 'one of the words was 'bastard' and another was an assertion 'a dom is better than thee; well indeed they might be if such an occurrence or anything like it had ever taken place. when the second article was brought to the attention of the complainant he began to consider measures for his protection and eventually, having taken the necessary preliminary steps, filed a complaint on 4th.....mears, c.j.1. this is a government appeal from the decision of mr. joti sarup, the additional sessions judge of saharanpur, who, on the 3rd may 1927, acquitted jhabbar mal sharma, babu ram misra and banarsi dutt sharma of offences under section 500, i.p.c. jhabbar mal sharma was at a material date, 12th february 1926, the editor of a paper called the hindu sansar. babu ram misra, on another material date, 24th may 1926, was the editor, and banarsi dutt sharma was throughout the publisher. the learned magistrate, mr. shafi, convicted all the three accused, sentencing the two first named to 12 months' simple imprisonment and a fine of rs. 500 with the addition of a period of three months' simple imprisonment if the fine should not be paid and the third accused, banarsi dutt sharma, to three.....
Judgment:

Mears, C.J.

1. This is a Government appeal from the decision of Mr. Joti Sarup, the Additional Sessions Judge of Saharanpur, who, on the 3rd May 1927, acquitted Jhabbar Mal Sharma, Babu Ram Misra and Banarsi Dutt Sharma of offences under Section 500, I.P.C. Jhabbar Mal Sharma was at a material date, 12th February 1926, the editor of a paper called the Hindu Sansar. Babu Ram Misra, on another material date, 24th May 1926, was the editor, and Banarsi Dutt Sharma was throughout the publisher. The learned Magistrate, Mr. Shafi, convicted all the three accused, sentencing the two first named to 12 months' simple imprisonment and a fine of Rs. 500 with the addition of a period of three months' simple imprisonment if the fine should not be paid and the third accused, Banarsi Dutt Sharma, to three months' simple imprisonment on each count, ordering, however, that those terms of imprisonment should run concurrently. The Local Government, taking the view that the decision of Mr. Joti Sarup was open to doubt, and that in the public interest it was desirable that this matter should be examined by the High Court, instituted the appeal.

2. The complainant's name was Chakra Dhar. He had been for many years in the police of this Province and had risen to the post of Superintendent. In June 1925 the post of Home Member in the State of Tehri was vacant and the complainant was invited by the Maharajah to become Home Member and accepted that position of honour and responsibility. The evidence is that this appointment caused annoyance to certain persons who have been named, on the ground that there was something like an hereditary right in their family to the reversion of this post, and it has throughout been part of the complainant's case that his position was made difficult in the State by reason of the ill-feeling generally that was felt at the introduction of an outsider.

3. On 12th February 1926, the aforesaid paper, which is published in Delhi, had an article pointedly addressed to the complainant and that article charged him quite definitely with habitual drunkenness. It made a second charge of a most precise character, which was that when he was drunk at Hardwar he uttered to the Income-tax Commissioner

extremely indecent words before the wife and daughter of the Income-tax Commissioner.

4. It has been agreed that the phrase which we have set out meant that he uttered extremely indecent words in the presence of the wife and daughter of the Income-tax Commissioner (Mr. Kher). It is not necessary for us further to repeat the text of the article in our judgment. On 24th May 1926, appeared a second article. It was headed: 'Maltreatment meted out to Rawal. Request to the Raja of Tehri.

5. The first part of it purported to be a letter addressed to the paper and signed 'A Southerner.' Then there followed three-quarters of a page of editorial comment. The charge made against the complainant is as gross a libel as can be conceived, and again, without repeating the whole text of it, one may summarize it by saying that it amounted to a charge that the Home Member treated the Rawal in the most insulting and degrading manner. We must, however, set out one passage, disgusting though it be. The letter says:

The Rawal was taking rest at his place and Pandit Chakra Dhar, along with many persons and State officials, was seated. Chakra Dharji sent for the Rawal through peons that he may come and fix his signature to the document of oath. The Rawal sent word that he would make his signature after a short time. On hearing this Pandit Chakra Dhar took fire and having uttered indecent abuses ordered the peons to fill his... with maila.

6. No ambiguity has been suggested as to the word which it was intended the reader of the article should supply in his mind. It is accepted by everyone that word which should be put in place of the dots is 'mouth.' The writer then proceeded to describe the approach of the Rawal in awe and stated that as he drew near he was assailed 'with the choicest words of the police vocabulary. 'One of the words was 'bastard' and another was an assertion 'a dom is better than thee; I shall put a dom in thy place.' The writer says that the Rawal and all present were thunder struck and stupefied. Well indeed they might be if such an occurrence or anything like it had ever taken place. We may anticipate our decision on this matter by saying that there is not a word of truth in those charges nor were they ever attempted to be proved. When the second article was brought to the attention of the complainant he began to consider measures for his protection and eventually, having taken the necessary preliminary steps, filed a complaint on 4th November 1926. It is true that there does appear to be a good deal of delay between the month of May and the month of November, but the Home Member was in an official position and he no doubt had to get the consent of high authorities and, moreover, he had to look about and consider who were going to give evidence on his behalf. The case, as we have said, came before Mr. Mohammad Shafi and all the accused pleaded justification. They were given the opportunity of an unconditional apology, but they did not avail themselves of it. They preferred to stand by what they had circulated.

7. We propose now to go at once to the essence of the case and analyze first the charges which the accused brought against the complainant and then consider whether any or all of them have been proved to be true in substance and in fact. For purposes of convenience, we are going to leave the general charge of habitual drunkenness till the last, and proceed at once to the latter part of the article of the 12th February 1926, in which it was said that the complainant

being under high intoxication uttered extremely indecent words in the presence of the wife and daughter of the Income-tax Commissioner.

8. An earlier passage had asserted that the indecent words were addressed to the Income-tax Commissioner of Hardwar. Now the accused took upon themselves the onus of proving that incident had in fact happened. They made no attempt whatever to do so and the learned Magistrate, correct and sensible as his ultimate decision was, never the less allowed them to make all sorts of charges against the complainant when calling evidence for the defence without ever giving to the complainant the opportunity of meeting such charges. It will be seen, as this judgment proceeds, that, on the most vital matters affecting the character of the complainant, accusation after accusation was made which was never remotely indicated to the complainant when he was in the box and he has not up till today had any opportunity of explaining matters, which were accepted as evidence by the learned Magistrate and were not objected to by the counsel appearing for him. It has been said and this may be the explanation that the learned Magistrate was well aware of the irregularities that were being committed by the accused in calling witness after witness to speak of matters in support of all the three charges without having given to the complainant the opportunity of meeting these charges when under cross-examination, but did not interpose or recall the plaintiff because he the Magistrate did not for one moment believe in the truth of any of this evidence. It may be so and indeed his judgment is some warrant for that; but the learned Magistrate ought to have looked ahead and realized that there might be an appeal from his judgment and that all these matters which had been put forward, and on which the complainant had no opportunity of telling his side of the case, might be regarded adversely by the appellate Court. That is exactly what has happened. It never crossed Mr. Joti Sarup's mind, when hearing the appeal, that by far the greater part of the allegations of the accused which he has accepted were never put to the complainant, and even today no one can say what his explanation would have been had he been asked about them.

9. We now return to this simple definite charge that the complainant being very drunk, uttered extremely indecent words to the Income-tax Commissioner of Hardwar in the presence of his wife and daughter. That was a grievous accusation. The complainant denied it. The complainant called the Income Tax Commissioner of Hardwar, who said in the most emphatic manner that nothing of that kind had taken place, that the accused was not intoxicated, nor did he say anything to him (the Commissioner) in the presence of his wife and daughter of any indecent nature whatever. The accused then called three witnesses. They were witness, as their cross-examination shows, who may very well have had some object in injuring the complainant, but for the present purposes we need not quarrel with their statements as regards this charge because they never attempted to prove it, but set up a completely different case. The accused never attempted to justify their charge that in conversation with the Income-tax Commissioner some indecency had been uttered in the presence of the two ladies belonging to him. What they did say was this: Sadanand at p. 32, says:

I do not know what conversation took place between the complainant and Mr. Kher.

10. Therefore he is out of the matter altogether. Now he goes on to the new case:

There were many men inside the compound when the complainant went to see Mr. Kher off. The complainant had only some talk with his son at that time. (That means the son of the complainant.) I had heard that conversation. He had said to him that what he was seeing towards the gate whether he was seeing his wife. The boy blushed. I said to the complainant that he had become mad to talk. He said that I was mad and that Kher was his Samdhi. The complainant was in a high state of intoxication. He had some intoxication.

11. Now, we must separate this accusation into two heads. If the evidence was put forward to prove intoxication it was admissible, but if it was put forward as a justification of the charge, it was inadmissible because it did not cover the ground of the charge and was at variance with it. It was not the same thing at all as the charge. The main object of its being put forward was not to prove intoxication but to justify the accused in the charge which they had made in the article of 12th February as to the indecency said to have been uttered. It is extremely difficult to understand, why, when this evidence was tendered, the counsel who was representing the interests of the complainant, Mr. S.C. Sinha, did not object at once to this evidence if put forward as a justification on the ground that it afforded no justification and no proof of the original printed accusation. Moreover the Magistrate ought himself to have interposed. Nobody, however, raised any objection and Shiva Nand and Shiva Prasad gave similar evidence. When all the evidence on the charge is collected and examined it is apparent that the accused departed entirely from the charge made in the newspaper and brought up something else, something else which occurred at a different moment of time and something else which was alleged to have been said not to Mr. Kher but to the complainant's own son and something which, if anything happened at all, might, as one can see from the context, be most easily capable of the most innocent explanation. But the unfairness of the whole proceeding is manifest when one finds that this story upon which the accused were going to rely as an exculpation of their libel was never put to the complainant at all and he left the witness-box without any idea that the accused were going to set up some totally different matter on this new case. The son was a most material witness, but he was not called because the complainant was unaware that any such case would be set up. Mr. K.D. Malaviya, who has argued this case for the accused ably and earnestly, told us that the general practice in the province is for a defendant or accused to conceal the defence as much as he can and not to put his defence to the plaintiff or complainant in cross-examination.

12. This has been said in this Court before and always strongly reprobated. If there is such a general practice it is a disgrace to the administration of justice and judicial officers, and counsel representing plaintiffs or complainants should be most watchful to put an end to this abuse.

13. It is most certainly the practice of this Court in appeal to give little or no weight to the allegations or charges of a defendant or accused if they ought to have been put to the plaintiff or complainant or his witnesses and have not been so put. A plaintiff or complainant has an absolute right to know exactly the allegations or charges upon which the opposite side are going to rely and they must be put to him or to his appropriate witness clearly, specifically and with the utmost plainness so that he may have an opportunity of admitting them wholly or in part or denying them wholly or in part, and of calling witnesses to rebut such allegations or charges as he denies. We protest forcibly against such practice and we will show how grossly unfair it was to the complainant as it must be in every case.

14. First of all, as we have already Said, when that story had been spoken to by Sadanand there should have been some objection by counsel for the complainant, and the Magistrate should have refused to accept that story as any evidence whatever, of justification and should only have allowed it to come on the record as part of the general evidence of drunkenness. If, however, at the stage the Magistrate did not like to take so strong a line he most certainly ought to have criticized the conduct of counsel in not putting it to the complainant and should have insisted upon that being done. Now, if that accusation had been put to the complainant, he would have been asked whether his son was present at the time when Mr. Kher and the ladies were going away and to that he would probably have agreed. He then would have been asked if he had any conversation with his son, and if he said 'yes' the conversation would then have been put to him as to whether he said to the boy that he was looking towards the gate and whether he was seeing his wife. Nobody on earth can say what the complainant would have said to that. Even to this day he has never been asked anything about it in any Court, but it is perfectly obvious that he might by the slightest alteration of phrase have been able to show that he had said nothing that could be in the slightest degree offensive to anybody at all. He would also have been asked whether he had said that Sadanand was mad and that Mr. Kher was his samdhi. To that he would have given his reply and again there might have been some explanation, either it might have been a complete denial and an assertion that it was a wicked addition to a perfectly private conversation between father and son or he might have given some explanation relieving him of all criticism.

15. In respect of the charge contained in the article of 12th February 1926, which we are now considering, the learned Magistrate came to the conclusion that there was no justification, but, as we have suggested, he might have acted much earlier and more emphatically. Mr. Joti Sarup on appeal came to the extraordinary decision that the evidence of Sadanand, Shivanand and Shiva Prasad exonerated the accused and satisfied the plea of justification. He certainly could not have examined the article of 12th February 1926, and compared it with the evidence tendered by the accused, and he must have entirely overlooked this most important point that he had only heard one side. (Here his Lordship discussed the evidence in connexion with accusations made in the second article of 24th May 1926 and continued.) We refuse to attach any weight whatever to the evidence of any of the witnesses who endeavour to prove this charge, when, on examination of the record, it is shown that Mr. Chandi Prasad Singh, on behalf of the accused, refrained from putting his affirmative case to the complainant in cross-examination. This we do as a matter of elementary justice that a man must not lose his case or be condemned on charges which he is given no opportunity of meeting. We suggest that evidence held back as this was should be regarded with suspicion by the Court in both civil and criminal cases and that Judges should hesitate to act upon such evidence, and should on all occasions express disapproval of this practice and remedy it as far as possible by recalling the plaintiff or accused or other appropriate witnesses and, when possible, making the offending party pay the increased costs in any Court.

16. The result is that as regards the charge of excessive drinking the justification fails. Therefore on all these three matters, the defence fails on the facts.

17. We express surprise that Mr. Joti Sarup did not more clearly appreciate the principles which be had to follow. We refer particularly to p. 72, lines 24-35. What he says is that the 'two incidents' which is the phrase in which he describes the grievous and gross-charges by the accused in relation to Mr. Kher and the Rawal were if not literally true substantially proved by the defence evidence, and the editors could justifiably plead that they had reason to believe them to be true. If Mr. Joti Sarup will re-read the charge made on the 12th February with regard to Mr. Kher and will re-read the disgusting conduct charged against the complainant in the article of the 24th May-and then compare the evidence brought forward by the defence, we think that he will came to the conclusion that far from these two 'incidents' being substantially proved, there was neither in law nor in fact any proof whatever of them and that this case was an undefended one from the very beginning as far as the Kher and Rawal incidents are concerned. We sympathise with the complainant who since May last, has by reason of the appellate judgment, suffered greatly in his reputation.

18. As regards the accused there is no suggestion that any of them took the slightest steps to ascertain whether there was any truth in either of the two stories, and indeed there is an indication in the letter of the 24th May that the contrary is the case, because it says:

If what the southerner states which we have published above is correct, then we shall only....

19. The writer then proceeds to comment upon the letter as if every word were true. The editor and publisher were willing to take the risks of publishing the abominable things that they did about the complainant, and, unless there is some point of law in this case which vitiates the trial, the conviction must stand. Mr. Kapildeo Malaviya has argued that, notwithstanding the failure of the accused on their plea of justification, they are nevertheless entitled to the maintenance of the appeal in their favour by reason of certain errors and irregularities committed in the course of the trial. If he can prove this contention, and these errors or irregularities are such as to vitiate the trial, then the accused are entitled to have the acquittal stand and this appeal dismissed.

20. The first point that he takes is that there should have been separate trials, that is, that Jhabbar Mal Sharma and Benarsi Das Sharma should have been tried for the publication of the article of the 12th February 1926, whilst Babu Ram Misra and Benarsi Dat Sharma should have been tried for the article of the 24th May. This point was before the learned Magistrate, and he, on the internal evidence of the articles, came to the conclusion that, they were published by reason of a continuity of policy of the paper, and that the transaction upon which all three people were engaged, was to bring about the fall of the complainant from the position occupied by him in the Tehri State. At p. 62, lines 24 and onwards, of the records, he points out passages in the first article, and passages in the second, which show the prosecution of a common design. We think that he is right, and that being so the case of all the three accused comes under Section 239 (d) they being

persons accused of different offences committed in the course of the same transaction.

21. Moreover, accused 2 was Sub-Editor in February and Editor in May.

22. The next argument is that the Magistrate did not act in accordance with Section 342, Criminal P.C. That section requires that the Court shall

question him (the accused) generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

23. That fact is that on the 8th December all the three accused were questioned by the Magistrate, and the charge was framed on the 9th. On the 10th the vakil for the accused notified that he wished to cross-examine all the witnesses, and put forward their defence. It is of importance also to notice that on the 8th. December each of the accused filed a written statement. It is true that the Magistrate did not on any date subsequent thereto recall any of the accused for examination.

24. It has been suggested that the word examination in the section is confined to examination-in-chief. In our opinion that most certainly is not so.

25. A witness under cross-examination might volunteer something new, something very damaging to the accused. He might in re-examination, or indeed on a question from the Judge, introduce some completely new matter, and, therefore, we are of opinion that there is in every case an imperative duty upon the Magistrate to put into operation the provisions of Section 342 at the moment when the complainant and all the witnesses called for the prosecution have been examined in the full sense in which the word is used. We know that on the 8th December the Magistrate did question them on the case but the cross-examination of the witnesses for the complainant was not concluded until the 16th December, and no question was put to the accused by the Magistrate on any of the matters which had arisen out of the cross-examination or re-examination of the complainant or his witnesses. Therefore, we are of opinion that the Magistrate did not comply with the provisions of Section 342. Mr. Kapildeo Malaviya has drawn our attention to a Calcutta case Mozahur Ali v. Emperor A.I.R. 1923 Cal. 196, which has gone the length of saying that if circumstances, such, as we have described, arise in a criminal trial the accused are entitled to claim that the omission to put Section 342 into operation vitiates the whole trial. The Calcutta High Court has so decided. But there is a much stronger current of authority running the other way, and our attention has been called to three decisions of this Court, namely, Bechu Chaube v. Emperor A.I.R. 1923 All. 81, Khacho Mal v. Emperor : AIR1926All358 and Rammu v. Emperor [1926] 7 L.R.A. Cr. 128. In all these cases this Court came to the conclusion that the complainant could call in aid Section 537, Criminal P.C. on the ground that the finding, sentence or order passed by the Court should not be reversed or altered on appeal or revision, if, on examination of the circumstances, it was shown that the error had not in fact occasioned a failure of justice. Not only has the Allahabad High Court taken up that position, but in the cases of Mohi-ud-din v. Emperor A.I.R. 1925 Patna 414 and Varisai Rowther v. Emperor A.I.R. 1923 Mad. 609 the same principle has been enunciated.

26. Therefore, the preponderance of legal opinion in this country and the practice of this Court has been to enquire into the circumstances and see whether or not the error or omission or irregularity has in fact occasioned a failure of justice. In our opinion there cannot be the slightest ground for the suggestion that anything occurred between the 8th and the 16th December 1926, which could usefully have been the subject of any question by the Magistrate and which was not covered by the answer of the accused given on the 8th December and their written statements filed on that date. A perusal of the decisions to which we have referred will show that the Courts attribute much importance to a written statement, and indeed some have gone to the length of saying that if there be a written statement filed, that dispenses entirely with the operation of Section 342. We need not express any opinion on that point but, being perfectly certain, as we are, that the accused suffered no prejudice whatever, we, whilst expressing the opinion that the Magistrate should most certainly have questioned the accused generally at the close of the evidence of the complainant and his witnesses, nevertheless overrule this point on the ground that the omission did not occasion a failure of justice nor did it injure the accused in the remotest degree. In fact we asked Mr. Malaviya to examine the record and to point out any statement made by any of the witnesses subsequent to the 8th December, which could in any conceivable way have formed the ground of a useful question by the Magistrate, and which, if put to the accused and answered by them, would have in any way made more light the case against them. He was unable to do so, the fact being that there was nothing contained in the cross-examination of any of these witnesses which introduced new matter affecting the case, or in any way made the case more grievous against them. We should also conclude by saying that counsel who appeared on their behalf in the trial Court did not make any request to the learned Judge to examine his clients and indeed on 10th December, each accused applied for and each was granted leave to absent himself under Section 205, Criminal P.C., and did so.

27. The next point that was taken was that the case must fail because there was no evidence of publication. This point was made with special reference to the article of 12th February. It was proved by Narain Dat of Dehra Dun, that a copy of the newspaper of that date was sent to him from the publishing office at Delhi, and he produced that very copy with his name and address upon it, complete with a stamp and postmark. Mr. Malaviya contended that it was not sufficient to prove that the paper was delivered within the postal area over which the Court had jurisdiction, but that one must go further and must prove that the article was read by some particular person. We think that the analogies which he gave of letters sent through the post to private persons and no proof tendered at the trial that the addressees had read the contents are not good analogies and that newspapers are governed by different rule. We understand the rule to be that if evidence is given such as we have described above, the Court should have regard to the fact that a newspaper is a commodity printed for the purpose of being read and should assume that it was so read and for that proposition the case of Queen-Empress v. Girjashanker Kashiram [1890] 15 Bom. 286 is a sufficient authority, and is a representative case enunciating the principle. As regards the article of 24th May it cannot on the evidence be seriously argued that there was no publication. A news-vendor was called, who said that since the preceding March he had daily received five copies of the paper and had sold them all, and that his sales included the issue of the 24th May. We are therefore of opinion that there is no objection in law to the case of the complainant. This case had occupied the Court for several days, but it is not one on which time should be grudged. We regard it as one of exceptional importance.

28. Most clearly it is of importance to every one in India who may for good or for bad reasons suddenly find themselves the object of newspaper attack. It is also of great importance to judicial officers and practitioners, who should at least understand the principles upon which a highly technical action of this kind should be tried, and the importance in every case of putting to the opposite party the specific facts upon which reliance is going to be placed either to obtain a civil decree or conviction. We have intentionally repeated, time and time again, our criticism of the manner in which this case was conducted and we have done so in the endeavour to drive home the point to the consciousness of judicial officers and practitioners throughout the Province. This case is also a matter of importance to newspaper editors, and publishers. As regards the press it is highly desirable that nothing we have said in this case should be taken as any limitation whatever to the rights which newspapers have and upon the public duty which newspapers are called upon to perform. A newspaper has a public duty to ventilate abuses. It has a public duty to demand that officials from the lowest to the highest shall do their duty. If an official fails in his duty, a newspaper is absolutely within its rights in publishing facts derogatory to such official and making fair comment on them. But the newspaper must get hold of facts, not falsehoods, and provable facts as well. Let us take this particular case as an example. What would have been the prudent and proper course for the accused to follow? They had received a communication that the Home Member of Tehri was habitually drunk, and on a certain occasion had said extremely indecent things to Mr. Kher in the presence of his wife and daughter. Later on, they heard that the Home Member had committed himself disgracefully and beyond belief, unless he were drunk at the time, and had grossly insulted a man in a high position amongst Hindus. We know what they did. They printed the accusations without making the slightest enquiry as to whether they could prove the charges made.

29. Now what would a prudent editor have done in the circumstances if he thought it was his duty, in the public interest, to follow up the accusations? He would have made the most careful enquiries relating to the Kher and Rawal incidents, and to the general reputation of the Home Member as regards sobriety. He would have got statements signed by persons deposing to the incidents, and if, he believed in their integrity, he would have published an article of a character safely within what be believed could be proved and what his informants pledged themselves to prove. Thus, before he had printed a single word, he would have got together his evidence, knowing quite well that, if he failed to prove the charge, he would either have to apologize, which might not in the circumstances have been by any means sufficient, or stand a civil or criminal trial. If the accused in this case had made the enquiries before they printed the articles which they ultimately did, nobody can believe the articles would have ever been printed. On enquiry they found they had no evidence whatever to support the Kher and Rawal incidents.

30. As regards the allegations of general drunkenness: they did get together a considerable body of testimony, but they should have considered whether, from the particular circumstances of the people willing to give evidence, and the extraordinary evidence they were willing to give, it was safe to make that charge. At all events, if they had confined themselves to that charge, and that alone, and had put their case in all its details to the complainant, they would not have been punished to the extent now necessary for the protection of the public. This was not a matter of urgency. A newspaper may receive a communication which appears on its face to be of the greatest importance; it may appear to be well vouched, and it may be of a kind that unless it is printed almost immediately, will lose its value by reason of the subject being one of passing interest. The editor must then consider whether it is worth while taking the risk without enquiry. He may think fit to put in a careful understatement of the information conveyed to him, or he may have regretfully to forgo publication, because he is not sure either of the good faith of his correspondent or questions the complete truth of his statements. It may be objected that no editor can take so much trouble as we have indicated to be necessary. The answer to that is that then he must not publish defamatory matter. If an attack on anyone is deemed to be in the public interest, common prudence suggests that the attacker should first make sure of his ground. The accused had a perfect right to criticize the conduct of the Home Member of Tehri, but they went about it in the wrong way. They made the accusations first and then hunted round to find out whether the charges were true or not. They were invited to apologize, and we cannot conceive why they did not take this course. They preferred a trial and they must abide by the result.

31. We have made these general observations because we are of opinion that the time has arrived when there should be a clearer understanding of the way in which these actions should be conducted, and a clear understanding on the part of the newspaper world that they do have practical immunity in the sense that they ought to succeed in an action or criminal trial of this kind if they confine themselves to allegations of facts which, before they are made public, have been thoroughly investigated and are reasonably believed by them to be capable of proof by responsible people willing to give evidence.

32. The result, therefore, is that we allow the Government appeal. We highly approve the action of whoever may have advised the Government to appeal. The decision of the Judge was unfair though of course quite unintentionally so. As regards the editors: no one, we suppose, could criticize in any way the sentences passed upon them, when one remembers the gravity of the charges they made. The publisher has put forward in his defence that he had to publish what the editor gave to him. Hardly ever could there have been a more foolish statement. If the editor of a paper is in the habit of requiring the publisher to publish defamatory matter, the right thing for the publisher is to sever his connexion with the paper. The plea is worthless. The Magistrate made a very sensible distinction between the degree of guilt of the editors and the publisher, and we affirm his findings, and we affirm the conviction passed against each and every of them, being sentences of 12 months simple imprisonment and Rs. 500 fine with the alternative of three months further simple imprisonment passed upon Jhabbar Mal Sharma and Babu Ram Misra, and the two sentences of three months imprisonment passed upon Banarsi Dat Sharma to run concurrently.

33. This order will be sent to the District Magistrate of Dehra Dun, who will take all proper and necessary steps to ensure the surrender of the accused. If upon enquiry it is proved that the accused did not undergo any period of imprisonment in consequence of the Magistrate's order, then they must serve the full time as from the date of their arrest. Such time, if any, as they may already have served in jail will be credited to them.


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