1. The petitioners have been convicted of defamation. It was found and petitioners did not deny, that they, as executive members of the Shevapet Sowrashtra Sabha, communicated to other local Sabhas reports of the nature of Ex. A, filed in this case, in which it is stated that a complaint had been received that one K. Narasimha Iyer said that Anan Thirumalai Iyer P.W. 1, had been born to Putta Venkata Subbayya, and that he, while an infant, was rolled up in a mat and thrown; that the sabha met accused and under their orders a servant was sent to bring P.W. 1, and on his report that P.W. 1 could not come, they considered the matter and decided that P.W. 1 should be removed from the community, and that that had accordingly been done.
2. The lower Courts have found that this report was defamatory of P.W. 1 and was not privileged. It is argued in revision that the lower appellate Court has based its confirming Judgment on mistakes of fact and that both Courts had fundamentally erred in their conception of what would constitute malice in law.
3. There have been for some time two rival Sourashtra Sabhas in Shevapet, the accuseds' Sabha having seceded from the local Shevapet Sabha, because it would not conform to the ruling, of the main assembly allowing the reinstatement in caste of a member who had gone to England and returned. The accused upheld the ruling of the main assembly. The original Sabha headed by P. Ws. 2 and 3 refuse to recognise it. Since the secession, evidently, each branch has claimed to be the proper caste tribunal for Shevapet. In December 1920, the accuseds' Sabha excommunicated P.W. 1 as set out in Ex. A. In April 1921, the rival Sabha excommunicated accused 1, 3 4 and 5. By Ex. IV on 14-8-1922, P.W. 2 and others of his Sabha communicated the excommunication of accused 1, 3, 4 and 5 to the very same parties to whom Ex. A was sent. Ex. A was sent to these parties on 4-9-1922.
4. There was no suggestion that Ex. A had been concocted for the occasion and that it was not true that P.W. 1 was excommunicated in December 1920. The lower appellate Court has therefore erred in supposing that P.W. 1's excommunication was retaliatory measure for the excommunication of accused 1, 3, 4 and 5 by P.W. 2's Sabha since it was three or four months anterior in date. This erroneous view has, to my mind, considerably influenced the lower appellate Court, which proceeded on the idea that the excommunication of P.W. 1 was an act of retaliation and revenge and, therefore, likely to have been due to malice. It then proceeded to put forward other grounds, insufficient to my mind, in themselves to support that finding.
5. There is no finding that Ex. A does not truly set out the facts, i.e., that it is not true that such a complaint was made to the accuseds' Sabha, or that the Sabha had sent for P.W. 1 or that P.W. 1 was removed in consequence by the accused's community. Nor is there any clear finding that P.W. 1 was not at the time subject to the spiritual discipline of the accuseds' Sabha. The lower appellate Court thinks that the accused had not proved the latter point, but I do not find that P.W. 1 even challenged it. Certainly in his evidence there is no statement that he was not subject to their control. On the other hand, he says that ' in those days K. Narasimha Iyer (P. W. 3) was in one Sabha and I was in the other Sabha. ' ACriminal Court should certainly not assume against an accused person anything which has not been made the subject of proof. The lower Courts seem to me to have further confused the issue by taking Ex. A to mean that the Sabha found that the charge was true and therefore circulated as true a libel which is probably false. But that is not what Ex. A says. It merely mentions the nature of the charge, that P.W. 1 refused to turn up to defend himself and therefore was excommunicated. There is no statement in Ex. A to the effect that the charge was true.
6. I proceed then on the footing that the statements in Ex. A are true and that P.W. 1 was under the jurisdiction of the accuseds' Sabha at the time of his excommunication and at the time of the publication of Ex. A. The lower appellate Court having taken, as shown above, an erroneous view of the facts proceeded to find malice, on the ground, first that if P.W. 3 made the charge alleged he did not mean it literally, secondly that the complaint to the Sabha was not made by the party who made the charge but by one who merely overheard it, and thirdly that the Sabha had no evidence before it for holding that the charge was true. None of these grounds seem to be substantial and clearly rest on the mistaken idea that the Sabha had held that the charge was proved. It is suggested further by the counter-petitioners, that no notice giving the substances of the charges was sent to P.W. 1 and that no enquiry was held, but I find no justification for such a suggestion. This point had never been so far gone into and it may be noted that P.W. 1 has not stated that he did not know the nature of the charge.
7. The Sabha then had before them a serious charge of which I must in the absence of evidence to the contrary presume in favour of the accused that, the delinquent had notice, that it has sent for him to explain and he failed to appear. The prosecution witnesses themselves admit that in such cases, it is the usual practice for Sabhas to excommunicate without further delay or enquiry. P.W. 1 says : ' If a member refuses to attend as per the summons of the Sabha, he will be put out of the Sabha. ' P.W. 2 similarly says, ' If any one is called by the Sabha to answer a charge and if he refused to attend, he will be excommunicated, ' and Ex. IV, the document communicating the excommunication of accused 1, 3, 4 and 5 to the other Sabhas sent by P.W. 2 gives several instances of excom-munication simply on the ground that the parties summoned to appear before the Sabha had refused to do so. Three of those relate to accused 3, 4 and 5 themselves. P.W. 2 in fact admits that accused 3 and 4 were excommunicated simply because they did not appear. The evidence of P. Ws. 6 and 7 is to the same effect. The accused therefore, so far as appears were merely following the usual procedure and it is difficult to conclude that, by merely doing so, they must have been actuated by malice, however defective that procedure might appear to more judicial minds. The Sabha must be found to have fallen short of their own standard of justice before malice could be imputed to them, and, in this case, I judge the accused Sabha by the standard of justice they themselves get from the Sabha of P.W. 2. As to the allegation that no enquiry was held assuming that it be true, such enquiry, as I have shown above is not the usual procedure when a delinquent does not turn up after notice. As to whether notice was actually sent there is no clear finding that it was not. P.W. 1 says he got no notice, but the lower Courts did not accept his statement; and assumed that the accused's version that P.W. 1 got the notice was true. I am not prepared to assume against the accused that the notice was not sent.
8. It is urged further by the counter-petitioners that the long delay in publishing the fact of excommunication and the fact that it was published a few days after the publication of the accused's excommunication by P.W. 2's Sabha justify the inference of malice. But it is obvious that such long delays are also usual. The excommunication of the accused was not published until 16 months after it occurred. Ex. A was published 21 months after, the excommunication. I am not prepared to infer malice from the mere fact of delay. That such a publication by the caste-head was the proper and the recognised procedure is obvious from Ex. IV itself, which publishes the accused's excommunication by P.W. 2's Sabha to the very same persons, and in the very same manner as Ex. A does-It hardly lies in the mounth of P.W. 2's party to which P.W. 1 now belongs to argue that such publication is not the usual procedure or that the delay in the publication is any evidence of want of good faith.
9. The facts then are that the accused as the head of the Sabha, to which P.W. 1 was then subordinate, received notice of the charge against him which he, after due notice given, made no attempt to meet, that they then, according to the usual procedure when an accused party fails to appear to answer to a charge, passed an order of excommunication, and that then they in accordance with the usual procedure imparted that fact to the heads of the community in other places in the usual form containing a brief and accurate statement of what had occurred. There is no suggestion of any publication to any persons who had not a right by virtue of their caste position to know of the fact.
10. It has been suggested that I should send the case for findings on the various points on which findings ought to have been recorded, such as, whether a proper enquiry was held and whether Sabha had authority over P.W. 1; but I can see no object to be served by fomenting any more this internecine quarrel. On their own showing, P.W. i's party has done almost exactly the same thing in the matter of excommunicating the accused and publishing the fact, I am not prepared to send the case back.
11. It is impossible then to support the lower Court's conclusion that the accused circulated the libel as a charge enquired into and proved. On the other hand there is no evidence from which to conclude that the accused circulated the charge knowing it to be false, they circulated it in the ordinary routine procedure, according to which, even if the charge was false, P.W. 1 would be liable to excommunication for mere refusal to attend. I find therefore that the publication complained of was made in the course of the usual routine procedure in 'such matters, that the usual procedure was followed regarding the enquiry into the charge itself, and that the accuseds' Sabha, to which P.W. 1 then owed allegiance, were bound on P.W. i's own showing to communicate the fact to the other sabhas of the community. P.W. 1 says, 'If any one be excommunicated from one sabha the matter will be communicated to sabhas in other places ' and again, ' Either after inquiry or if the persons against whom information is laid, absent themselves from the Sabha after being sent for, we used to communicate the complaint and the decision of the sabha to the other sabhas.'
12. It appears to me that the publication in this case was in the usual course of accuseds' duty, that there is nothing to show that the accused were not acting in good faith in the interests of their community and that the publication is therefore protected by the ninth exception to Section 499 of the Indian Penal Code. I am of opinion that the convictions therefore cannot be supported. The convictions and the sentences are therefore reversed and the fines, if paid will be refunded to the petitioners.