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The Queen Vs. Sri Vidya Sankara Narasimha Bharathi Guruswamulu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in(1883)ILR6Mad381
AppellantThe Queen
RespondentSri Vidya Sankara Narasimha Bharathi Guruswamulu
Cases ReferredIn Reg. v. Hart
Excerpt:
penal code, sections 500, 503, 508 - injury--privilege--unnecessary publication. - - on this occasion, virasalingam and 'two others addressed a petition to the respondent requesting that he would attend the meeting and sanction widow-marriage, and urging that, in the opinion of the petitioners, it was permitted by the hindu sastras, and its introduction was conducive to public good. for, this was not the ground on which the respondent pronounced the complainant and others to be out of caste, and, even assuming that he was entitled to take the objection in his defence in a criminal case, venkata subbamma's marriage was not the only one condemned by him. document i is addressed by the respondent to 'his disciples and to the learned and the public of rajahmundry, to cheruviru yegnanna.....muttusami ayyar, j.1. this is an appeal from an order of acquittal made by the joint magistrate of the district of godavari in calendar case 2 of 1882 on his file. the complainant in this case is one atmuri lakshmi narasimham, a komati by caste, and the district munsif of rajahmundry, and the respondent is the high priest of the smarta sect in the northern circars, and the head of one of the six mattams belonging to that sect called abhinava virupakshi mattam. in 1881 there was an earnest discussion in rajahmundry and in other places, as to whether widow-marriage was not really in accordance with hindu law, and whether, if contracted in opposition to the existing usage, it should entail loss of caste. as might be expected, there was a difference of opinion on the subject, and the party in.....
Judgment:

Muttusami Ayyar, J.

1. This is an appeal from an order of acquittal made by the Joint Magistrate of the district of Godavari in Calendar Case 2 of 1882 on his file. The complainant in this case is one Atmuri Lakshmi Narasimham, a komati by caste, and the District Munsif of Rajahmundry, and the respondent is the high priest of the Smarta sect in the Northern Circars, and the head of one of the six mattams belonging to that sect called Abhinava Virupakshi mattam. In 1881 there was an earnest discussion in Rajahmundry and in other places, as to whether widow-marriage was not really in accordance with Hindu Law, and whether, if contracted in opposition to the existing usage, it should entail loss of caste. As might be expected, there was a difference of opinion on the subject, and the party in favour of such marriage was numerically small in comparison with the orthodox party which was opposed to it. The foremost advocate of widow-marriage in Rajahmundry is one Kandukuri Virasalingam, a Brahman by caste. In March 1881, the respondent happened to visit Rajahmundry, and Virasalingam and others convened a meeting in the Maharaja of Vizianagaram's school, where the subject of widow-marriage was discussed. On this occasion, Virasalingam and ' two others addressed a petition to the respondent requesting that he would attend the meeting and sanction widow-marriage, and urging that, in the opinion of the petitioners, it was permitted by the Hindu Sastras, and its introduction was conducive to public good. It does not appear that the respondent expressed any opinion on the real issue, and we must take it upon the evidence that he declined to sanction it. The second witness for the prosecution, Virasalingam, deposed that, when the respondent's sanction was asked, he remained silent. It appears also from his evidence that one Krishna Sastri, a pandit, attended the meeting already mentioned on behalf of the respondent and stated that the latter would accord his sanction if the majority of caste Hindus applied for it by a mahazar. Having regard to the fact that, if the majority were in favour of the marriage, there would be no necessity for the respondent's sanction, the pandit's answer must be accepted as amounting to a refusal of Virasalingam's application. Notwithstanding Sankaracharyar's hesitation, the agitation in favour of widow-marriage gained strength, and, on the 11th December 1881, one Gogulapati Sri Ramulu, a brahman, married a brahman widow, Kanaparti Suramma, and, on the 15th December 1881, one Ravucherla Ramachandraya Garu a brahman, married a brahman widow, Surampati Venkata Subbamma. Both these marriages were celebrated in the house of Virasalingam, and, although it was conceded for the prosecution, that Vankata Subbamma's first husband and her present husband were of the same gotram, it was deposed to by Virasalingam that he gave away the bride in his own gotram which is different from that of Ramachandraya Garu. At the hearing, it was mentioned that this marriage was at all events open to the objection that it was contracted within the prohibited line of descent. How far the answer which Virasalingam's evidence suggests, is satisfactory, and whether it was competent to him to change the widow's gotram, or whether it is her father's or first husband's gotram that is to be regarded in determining whether the new alliance is a prohibited connection, are matters on which it does not seem to be necessary to express an opinion. For, this was not the ground on which the respondent pronounced the complainant and others to be out of caste, and, even assuming that he was entitled to take the objection in his defence in a criminal case, Venkata Subbamma's marriage was not the only one condemned by him. Nor is this objection material as will appear later on from the ground on which our judgment rests.

2. It appears that, when these two marriages were performed, those in their favour showed their approval in different ways. Some only attended them, some also accepted betel and nut, some dined with the bridal parties, and others invited and entertained them in their own houses. As to the form in which the complainant assisted them, he deposed that he only attended and encouraged them, but did not accept betel. Though it is stated by the respondent in document A that the complainant accepted also betel, I do not attach weight to this discrepancy, as the acceptance of betel is, according to social usage, only a token of approval and goodwill.

3. Shortly after the two marriages were celebrated, a meeting of the orthodox party was convened, and a petition or mahazar signed by 72 persons was sent to the respondent in which instructions were applied for as to the mode in which orthodox Hindus should conduct themselves towards those who aided the marriages. In answer to this petition, the respondent sent the document Ex. I to the petitioners, and transmitted by post' the post-card Ex. A to the complainant. Document I is addressed by the respondent to 'his disciples and to the learned and the public of Rajahmundry, to Cheruviru Yegnanna Sastri, and other gentlemen well versed in temporal matters.' It acknowledges the petition, refers to the two marriages, and then states that they are not sanctioned by the Vedas, that they are forbidden by the Sastras, and that they are contrary to an ancient and long-established custom which has as much authority as the Sastras. It directs that those who are not connected with the marriages shall not go for meals or for betel nut, or on occasions of joy or. sorrow, daily or otherwise, to the houses of the married couples, of the persons who gave the widows in marriage, of those who dined with them or accepted betel during the ceremony, or were connected with the marriages in other ways. It further declared that such persons were outcastes, excommunicated some permanently, and others provisionally, and concluded with the direction that as soon as this 'Srimukam reaches you, you shall convene a meeting in a suitable place, acquaint all with these matters, and see carefully that wide publicity is given to the same.' The complainant is one of the persons pronounced out of caste provisionally, or until he submitted to the penance prescribed as an atonement, and obtained from the respondent a certificate of purification. The post-card A, which was transmitted to the complainant purports to be an order caused to be written to him by the respondent, and it is as follows:

It has come to our knowledge that thou hast encouraged, brought about, and taken betel on the occasion of the widow-marriages that took place at Kan-dukuri Virasalingam's house in Rajahmundry. Thou art, therefore, given to understand that we lay thee under interdict, and order that, until thou under-goest the penance prescribed by the Sastras, and obtainest (from us) a certificate declaring thee pure, others shall not invite thee for meals, betel nut, or on occasions of joy or sorrow; that others shall not go to thy house on the said occasions; and that thou shalt be prevented from entering temples.' After the publication of this interdict, the complainant and others were put to serious inconvenience. He deposed that he was prevented from fulfilling two vows in the temples at Rajahmundry, that his own brothers and cousins declined to stay with or visit him, and that the calendar brahman, who used to read to him the calendar or panchangam, ceased to attend as usual. The second witness referred to the difficulty experienced by those under an interdict in getting brahmans to assist in the performance of annual obsequies in honour of their parents. The fourth witness stated that he was not permitted to perform his vows in temples on the ground that, if he were permitted to do so, a purifying ceremony must be performed to the idols themselves in those temples. The fifth witness stated that, when he visited Kottapalli and Tirumalapalam, no brahman or komati would permit him even to cook his own food in their houses, although they agreed to feed him outside the houses as if he were a sudra. Looking to the aversion with which bigoted men ordinarily regard those who are outcastes, we may accept the evidence as to the hardship, annoyance, and inconvenience which have been, and are likely to be, occasioned to the complainant by the publication of Exhibits A and I.

4. On the 11th January 1882, the complainant charged the respondent with offences punishable under Sections 499 and 500, 503 and 506, and 508 of the Indian Penal Code. He contended also that, as he was a Visishta Advaiti, the respondent was not his spiritual superior and had as such no authority over him. As to this contention, the Joint Magistrate found upon, the evidence that the respondent was the complainant's guru, and I see no sufficient reason to differ from the Magistrate. If the complainant were a Vaishnavite, both in creed and ritual, the respondent would certainly have no jurisdiction over him. The great Sankaracharyar, the father of the Advaita or non-dualistic philosophy or creed in Southern India, was the founder, of the mattam which is now presided over by the respondent whilst Visishta Advaities represent the dualistic school of religious philosophy founded by Ramanujacharyar, the great religious teacher of the Vaishnava Sect. But it appears from the evidence in this case that there is a class of komatis at Rajahmundry, called Trivarnikulu, who are rigid Vaishnavites, and who are not amenable to the respondent's spiritual jurisdiction; but with these, the complainant and his relations do not eat, intermarry, and have no other connection. Although in doctrine the complainant is a Visishta Advaiti, he appears from the evidence to retain the Smarta ritual and to intermarry with Smarta Komatis, and to conform in many respects to Smarta usages. In his own evidence, he had to admit that his son and daughter are married to Smarta komatis, that he eats with them, that at the annual obsequies he gives one 'Patram' to a Visishta Advaiti brahman and two patras to Smarta brahmans. He further admitted that 'mantras' are read in his house by a Smarta brahman during religious ceremonies, that his family priest at Masulipatam is a Smarta brahman, that he does not eat or intermarry with Trivarnikulu, and that his guru (high priest) at Pantapad is a disciple of the respondent. According to his seventh witness, it was the complainant's grandfather who, though a Vaishnava by creed, built the Siva temple at Rajahmundry. The fourth, fifth, and sixth witnesses for the defence, who are complainant's relatives, admit that the respondent is their guru, though, like the complainant's, their practices are in some respects those of Vaishnavas. The whole evidence in the case conveys the impression that the complainant and his ancestors were originally Smartas, both in doctrine and ritual, and acknowledged the respondent and his predecessors as their spiritual superiors; that, though they since changed their doctrine as to the unity of soul and God, and adopted some Vaishnava practices, still they retained their old Smarta ritual, intermarried, and ate with Smartas only, and continued to acknowledge the respondent as their guru. This view is further confirmed by the fact that (the guru at Pantapad, whom the complainant acknowldeges to be his spiritual superior, is a disciple of the respondent. We must therefore take it upon the evidence, for the purposes of this case, that the respondent is the complainant's spiritual superior or guru.

5. The next question for decision is whether, upon the facts mentioned above, the respondent ought to have been convicted either of criminal intimidation, or of criminal threat to render the complainant an object of divine displeasure, or of defamation.

6. In forming our judgment, I must premise that we are not at liberty to discuss here whether or not widow-marriage is not to be desired in the interests of morality or of women in India. Nor is it for us to go behind the usage and to inquire into the historical origin of the alleged prohibition. It may be that there are texts which, when reasonably interpreted, show that in ancient times there were twice-married women, and there were women who married after they attained their maturity. But we cannot overlook the usage, and inquire, for the purpose of this appeal, whether the people ought not to have adopted as their guide some particular texts or some particular interpretations of those texts, in preference to the texts and interpretations which have rightly or wrongly come to be received by them as law. The learned Advocate-General observed at the hearing of this appeal that there was no evidence of custom which was relied on by the Magistrate. It appears to me that the question was not one of particular custom which was relied on by the Magistrate. It appears to me that the question was not one of a particular custom, but of a general custom which is a matter of general notoriety, and that the Magistrate was entitled to take judicial cognizance of it. Even assuming that he was not, there are traces of the usage in commentaries and texts which lend color to his view. Apastamba and Gautama say that the woman who is eligible for marriage ought not to have belonged to another man. In prescribing the duties of a woman who has lost her husband, Vishnu says that she must either preserve her chastity or ascend the funeral pile. (See Max Midler's Sacred Books of the Bast).

7. Among daughters, the author of the Dayabhaga denies the capacity of a childless widow to inherit, on the ground that it is not legally possible for her to have issue. The author of the Smriti Chandrika follows him. The advocates of widow-marriage sought the respondent's sanction, probably because it was, in their view, a desirable reform, though an innovation upon the existing practice. We must therefore take it that widow-marriage is, as believed by the Magistrate, contrary to the usage obtaining among brahmans and the other regenerate classes in this presidency, and that the respondent's conduct must be judged in this case in connection with it.

8. Keeping this in view, I concur in the opinion of the Magistrate that the charges of criminal intimidation and criminal threat to render the complainant an object of divine displeasure cannot be sustained. There can be no criminal intimidation where the injury of which complaint is made is the hardship arising from a conventional punishment, which a spiritual superior, acting in the exercise of his authority as regulated by the custom of the caste, is competent to inflict.

9. The custom implies a common submission to his authority, and, assuming that there was an error of judgment on his part, the error cannot be accepted as sufficient for turning a case of conventional discipline into a criminal offence. It may be a matter for regret that there should be this spiritual tyranny and oppression, but if it is consistent with the usage of the caste of which the complainant claims to be a member, and if it is not expressly forbidden by law, we are not at liberty to treat it as a criminal offence. The Magistrate has found, and I see no reason to dissent from the finding, that the respondent believed honestly that widow marriage was sinful, and that those who aided it lost their caste. It is not denied that the pronouncing a man out of caste is a conventional mode of vindicating caste usages. Nor does it appear that the respondent acted in this case officiously or before instructions were solicited from him by his orthodox disciples. Neither was there any threat on the part of the respondent to render the complainant an object of divine displeasure, within the meaning of Section 508. The respondent did not threaten to do any future act. Nor did he attempt to induce a belief that it was the interdict that would be the cause of divine displeasure. Exhibit A amounts in substance to this: 'You have done a sinful act by aiding widow-marriage and thereby made yourself an object of divine displeasure. For this I punish you in the mode permitted by the usage of our caste. I also mention to you how in my opinion you may atone for your conduct, and regain divine favour. If you follow the advice, I shall withdraw the punishment.' From the respondent's standpoint, the interdict was designed not as a means of invoking divine displeasure, but as a means of removing, if possible, the divine displeasure which, in the opinion of the accused, the complainant had incurred by his own act. According to the conventional practice of Hindus, it is not in the power of their priest to make, by his own act, that a sin which is not according to their own Sastras really sinful. The really important question, therefore, is whether the respondent is guilty of defamation.

10. By Explanation III to Section 499, any imputation, which directly or indirectly lowers in the estimation of others the character of a person in respect of his caste, is defamatory, and as the complainant is pronounced both in documents I and A to be an outcaste, they are prima facie defamatory. It only remains for us to consider whether the occasion which gave rise to the imputation was privileged, and whether the presumption of malice arising from the publication is rebutted. It was argued by the learned Advocate-General that the respondent had no special interest in widow-marriage, as relatives of the parties to the marriage have, and that the publication cannot be said to be conducive to public good within the meaning of the First Exception to Section 499. The First Exception is, no doubt, inapplicable to this case, and it cannot be said that the denunciation of an act expressly sanctioned by the Legislature, as the widow-marriage is by Act XV of 1856, is conducive to public good within the meaning of the Indian Penal Code. It seems to me that the act denounced must be some uripermitted act, and that the good contemplated must be that of the general public as contradistinguished from what is regarded as a spiritual benefit by a particular sect. I am, however, unable to assent to the view that, without a special interest such as that of the close relations, there can be no privilege. I think that Exception VII would confer a privilege upon the defendant. As the complainant's spiritual superior, he had authority over him, arising out of custom which is not forbidden by law, and the complainant's conduct in connection with widow-marriage was a matter to which that authority extended, and the occasion was therefore, in my opinion, one when a privilege might exist, provided that it was exercised in good faith or with due care and attention. Where the circumstances are such that all that was said or done is consistent with one's duty, legal, moral, social, or spiritual, the defamatory words would afford no evidence of malice when the occasion is privileged, Gardner v. Slade 13 Q.B. 796. The Magistrate seems to think that, unless personal ill-will is shown to exists there can be no defamation, and to this view also I cannot assent. If there is malice in law, the imputation would be defamatory though there might be no malice in fact. Malice in law consists in the conscious violation of law to another's prejudice, and, for the purpose of deciding whether it exists or not in this case, we are bound to consider whether the privilege was exercised with due care and attention, to look at the defamatory language which was employed, and at the mode of publication which was adopted, and to see whether they are so far in excess of the privilege as to indicate a conscious disregard of the legal right of the party on whose character the imputation was made. Applying these principles to this case, I cannot say that the mode of publication adopted as regards Exhibit A is consistent with good faith, and does not indicate a conscious violation of law to the complainant's prejudice.

11. Exhibit I is a communication between the respondent and his disciples, and I am not prepared to hold that the language employed, and the directions given therein, are inconsistent with what the defendant might have believed to be his duty as their spiritual superior. Nor did the respondent exceed his privilege in addressing the Exhibit A to the complainant, over whose conduct he had authority as supiritual superior. It may be that, for the part which the complainant took, excommunication may have been too severe a punishment, especially when regard is had to the fact that brahmans and komaties attend, without being excommunicated, marriages in the houses of Sudras, Muhammadans, and others who do not belong to their own caste. It may be that the language employed was strong and insulting, but these are slight excesses which, when the occasion is privileged, ought not to be accepted as conclusive evidence of malice, and they may have been supposed by the respondent to be deserved by the complainant, inasmuch as he attended the widow marriages to mark his disapproval of their prohibition and not as a mere matter of courtesy. So far the respondent's conduct is within the principle laid down in Beg. v. Hart 1 Wm BL 386. But communicating a libellous statement by a postcard, which may be read even by those who are not respondent's disciples and even of his caste, is illegal, and a wanton excess of privilege which appears to me to vitiate it altogether. Exhibit A was intended for the information of the complainant alone, and the privilege which the respondent had did not extend to its publication to the whole world. The case cited by the learned Advocate-General, Williamson v. Freer L.R. 9 C.P. 393 is conclusive on the subject. In refusing a new trial, Justice BRETT observed in that case: 'I think a communication, which would be privileged if made by letter becomes unprivileged if sent through the Telegraph office, because it is necessarily communicated to all the clerks through whose hands it passes. It is like the case of a libel contained on the back of a postcard.'

12. This mode of communicating a sentence of excommunication is quite new and not sanctioned by custom, and the duty arising from the relation of spiritual superior and disciple does not protect libellous communications to persons who are not disciples and for the protection of whose spiritual interests the power of excommunication is not allowed by the custom of the caste. It may be that the respondent regarded the complainant honestly with extreme aversion on account of the latter's connection with widow-marriage, and was reckless as to the mode in which he communicated his sentence. But it cannot be accepted as a justification of a wanton transgression of the limits within which the law confines the privilege for the protection of the party who happens to be libelled. I am, there fore, of opinion that the mode of publication adopted by the defendant regarding Exhibit A vitiates the privilege and indicates a conscious disregard of the complainant's legal right. On this ground, I must say that legal malice is made out and that the respondent must be convicted of defamation. As to Exhibit I and its publication, I agree with the Joint Magistrate that the respondent is protected by Exception IX. He did not exceed the limits of his duty in relation to his disciples.

Charles A. Turner, Kt., C.J.

13. Sri Vidya Sankara Narasimha Bharathi Guru Swamulu-varu, who is the respondent to this petition, is the Sankarachari or chief priest of the Smarta sect in the Northern Circars. In the exercise of the functions of his office, it is his duty to instruct the members of the sect as to the interpretation of the ordinances by which the sect is governed, and he is empowered to pronounce sentence of excommunication against such of the members of the sect as may transgress the ordinances so interpreted. The com-plainant, a District Munsif, while refusing to admit explicitly that he recognized or

14. submitted to the authority of the respondent, has (the Magistrate found, and I think rightly) so conducted himself as to warrant the belief that he was a member of the sect.

15. In December 1881, two marriages were celebrated at Rajahmundry between Hindus, the brides being widows. The circumstance produced considerable discussion among members of the Smarta sect, and, in pursuance of a resolution passed at a meeting, an address numerously subscribed was forwarded to the respondent, informing him of the marriages, and inviting him to instruct the orthodox members of the sect how they should conduct themselves towards the persons who had taken part in or supported what were regarded as violations of the ordinances of the sect.

16. The complainant had attended the marriages, and advocated the marriage of widows, and these facts were brought to the notice of the respondent in the address submitted to him.

17. On the 27th December, the respondent sent his reply, Exhibit I. It declared that the marriages of widows were not sanctioned by the Vedas, were forbidden by the Sastras, and were contrary to long-established custom. It prohibited intercourse with persons who took part in such marriages, and intimated that five persons had been permanently and twenty temporarily excommunicated for the part they had taken on the occasions which gave rise to the communication.

18. Among the persons temporarily excommunicated was the complainant. The answer of the respondent was publicly read at a meeting of the members of the sect.

19. On the 2nd January 1882, the respondent addressed and sent to the complainant a registered postcard, bearing a communication, of which the material portion has been translated as follows:

It has come to our knowledge that thou hast encouraged, brought about, and taken betel on the occasion of, the widow-marriages that were celebrated in Kandukuri Virsalingam's house in Rajahmundry. Thou art therefore given to understand that we lay thee under an interdict, and order that, until thou undergoest penance prescribed by the Sastras, and obtainest from us a certificate declaring thee pure, others shall not invite thee for meals, betel-nut, on occasions of joy and sorrow, that others shall not go to thine house on the said occasions, and that thou shalt be obstructed from entering the temples.

20. The complainant thereupon filed a complaint in the Magistrate's Court, and the respondent was charged with the offence of defamation punishable under Section 500; of criminal intimidation, Section 503; and of intimidation by attempt to induce the belief that by an act of the offender the person intimidated will become an object of divine displeasure, Section 508 of the Indian Penal Code.

21. The Magistrate found that the respondent had acted in good faith and without malice, and held that, although the respondent had published, in his answer to the address, matter defamatory of the complainant, he was protected by privilege; the communication having been made in good faith for the protection of the respondent and of the persons to whom it was addressed.

22. It would seem' that in the Magistrate's Court-the postcard, Exhibit A, was not relied on as supporting this charge.

23. The Magistrate also held that the offence of criminal intimidation under Section 503 was not established, because: he considered that in informing, the complainant in good faith that he would be debarred from the privileges of a member of the sect, until expiation of the caste offence which it was held he had committed, the respondent had not threatened the complainant with injury in the sense in which that term is defined in the Indian Penal Code, namely, harm illegally caused, Section 43, the exercise by the respondent of jurisdiction in matters relating to the Sect not being in itself illegal; and lastly, he held that the respondent had not been guilty of the offence punishable under Section 508, inasmuch as he had not threatened the complainant that by any act done by him (the respondent), he would become an object of divine displeasure, but informed him that by his (the complainant's) own act he had already become an object of such displeasure. The Magistrate consequently acquitted, and from the order of acquittal this appeal has been lodged. I am bound to concur in the regret expressed by the Magistrate that differences of opinion on a matter of religious practice should have induced the complainant to appeal to the Criminal Court and compel the exercise of jurisdiction in a matter on which, however clearly the complainant might establish that an offence had been committed, the Criminal Court can give no effectual relief. It cannot pronounce an opinion on the doctrine which is disputed, nor can it compel the restoration to the complainant of his caste privileges. It can only pronounce whether the respondent, who it appears to me acted in the discharge of what he believed to be his duty, though his belief may be erroneous, has brought himself within the purview of the Criminal Law.

24. I agree with my honourable colleague that the charge under Section 508 cannot be sustained. The accused notified to the complainant that, in consequence of an act of the complainant, he, in the exercise of his functions, had declared him an outcaste, and intimated to him that until he had purged himself by penance and had been received back into caste by the accused, the temporal disqualifications of an outcaste would attach to him. The accused did not threaten the complainant that he would do any act to render him an object of divine displeasure. As the spiritual superior of the complainant, he passed on him a temporal sentence, which is customarily pronounced on those who violate caste usages, but offered to restore him to caste privileges on submission. To constitute the offence punishable under this section, it must be shown that the respondent threatened to do a future act or illegally to omit to do an act, and that by such threat he induced or attempted to induce the person threatened to believe that by that act or illegal omission the person threatened, or some one in whom the person threatened was interested, would become an object of divine displeasure.

25. It is not shown that the accused threatened to do or to omit to do anything in future. He announced an act already completed. Assuming that it had been proved that the accused, instead of pronouncing a sentence of excommunication, had threatened excommunication, I do not think the charge could have been sustained, unless it had been shown that a Hindu is rendered an object of divine displeasure by the sentence of the spiritual teacher and not by the supposed sin which has provoked that sentence, or unless it had been shown that a threat of excommunication was likely to produce and was intended to produce a belief that such would be its effect.

26. I also agree that the charge of criminal intimidation punishable under Section 503 is not established by the evidence.

27. To constitute that, offence, it must be shown that the accused threatened another with 'injury.' The term 'injury' denotes in the Indian Penal Code 'any harm illegally caused.' If, as I find, the accused was in virtue of his office entitled by the usage of his caste to pronounce sentence of excommunication, and in good faith pronounced that sentence on the complainant, who, he had reason to believe, was subject to his jurisdiction, it cannot, I think, be held he threatened to cause the complainant any harm illegally when he informed him of the consequences the sentence of excommunication entailed on him, those consequences being such as ordinarily attend excommunication.

28. Lastly, as to the charge of defamation, I agree with the Magistrate that, in communicating to the complainant and to the members of the caste the opinion he had been invited to deliver and the sentence he had felt himself compelled to pass, and in directing the publication of that sentence to the caste, the accused was protected by privilege under the Seventh and Ninth Exceptions to Section 499. Having spiritual jurisdiction over the complainant which he was entitled to exercise in virtue of a contract implied in the complainant's adherence to the sect, he cannot be held criminally responsible for the censure which in good faith he passed on the complainant's conduct. In communicating the sentence of excommunication to the members of the caste, he acted in good faith for the protection of their interests, for, by associating with an excommunicated person, they would contract impurity. Moreover, to give effect to the sentence some publication was necessary.

29. In Reg. v. Hart l Wm. 386 a lady of the Quaker sect frequented balls and concerts. The members of the sect admonished her and subsequently expelled her from the sect, recording in their proceedings as a reason for her expulsion that she had not practised the duty of self-denial. She preferred a criminal indictment for libel and the Court held that the transaction was merely a piece of discipline. But I agree with my honourable colleague that the offence of defamation is established by the admitted publication of the postcard. A privilege does not justify publication in excess of the purpose or object which gives rise to it. A man may in good faith complain of the conduct of a servant to the master of the servant even though the complaint amounts to defamation, but he is not protected if he publishes the complaint in a newspaper.

30. A spiritual superior, in pronouncing and publishing a sentence of excommunication, may be protected by privilege so long as the publication is not more extensive than is required to effectuate the purpose for which the privilege is conceded to him for the censure of a member of the sect in matters appertaining to religion or the communication of a sentence he is authorised to pronounce to those who are to guide themselves by it.

31. The communication of the sentance of excommunication to the complainant by a card sent through the post was a publication in excess of the purpose for which the privilege was allowed, and is therefore not protected by privilege.

32. Although it may be possible that the accused in using this means of communication did not know that he was committing an offence, he did not adopt it as the cheapest, for the postcard was registered; he must have known that the announcement might, by reason of the form of communication adopted, reach others than those to whom he was entitled to make it, and he must be held to have committed the offence of defamation.

33. Affirming the acquittal on the other charges, we would set it aside and convict the accused on the charge of an offence punishable under Section 500, and would sentence him to pay a fine of Rs, 200 (two hundred), or in default to suffer simple imprisonment for the term of one month.

34. Ordered accordingly.


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