1. I adopt the statement of facts in my learned brother's judgment, which I have had the advantage of reading, but give my own reasons for concurring in his conclusions, because the questions raised are of importance and may arise with increasing frequency in the future. They relate to the conditions of membership in associations, castes and sects, which as regards their adult members at least are concensual, but which probably have no counterpart in the West, because the obligations of membership in them are on the one hand so loose, that they have never been formulated by statute or any written constitution and on the other so strict that their breach is visited, as in the case before us, with the severest penalties. With the advantage or stability of such social conditions I am not concerned. It is sufficient that the law, which regulates the internal rights of those subject to them has been laid down clearly in The Queen v. Sankara I.L.R.(1882) M. 381 and Krishnaswami v. Virasami I.L.R. (1885) M. 133 and it is not disputed, that these associations are autonomous, the powers vested in their constituted heads being, subject to any special custom (none being relied on in the present case), those necessary for the protection of the interests committed to their charge. The Court's only duty is to see that these powers are exercised in accordance with the principles of natural justice; that is in the majority of cases, after the person to be affected by their exercise has been heard and his defence has received fair consideration.
2. There is no dispute before us that the accused, petitioner is the head of the religious community, to which complainant belongs; or that he has authority to exclude from it permanently or in appropriate cases until the offence against its customary law has been atoned for by penance; or that Ex. F. the notice by which complainant's exclusion pending the passing of a further order was published, was prima facie defamatory. The only question before us is whether Ex. F was covered by Exception 7 to Section 499 I.P.C., because notwithstanding that complainant had not been heard, it was published in good faith, provisionally to meet the urgency of the case. It is alleged that it was not so published, because the circumstances did not require a provisional order and because its provisional character was a pretence, the real intention being to exclude complainant permanently or for an indefinite period, without hearing him or passing a final order at all.
3. The passing of a provisional order, such as Ex. F, with out enquiry or hearing the person to be affected was, as the evidence shows, in accordance with precedent and can be justified so far as it was essential to the effectual execution of ac cused's power and duty to protect the interest of the community in his charge by saving its members from the risk of contamination from intercourse with one whose orthodoxy was in doubt. Even if immediate action had not been necessary on account of the communal feasts, which were to take place on the day of and two days after the publication and which were distinct reason against delay, precautions had in any case to be taken against the wider consequences of ordinary association between the complainant and the community at large. Before the publication of Ex. F on 23-11-1920, there had been no reason able opportunity for enquiry, because the formal representation, Ex. in, on which accused wisely insisted before he would act, reached him only on 20-11-1920. No doubt, since com plainant's alleged breach of caste law was committed on 24101920 and since tire matter was first brought to accused's notice shortly after 4-11-1920, there was, before accused sent his reply, Ex. XI, on 20-11-1920, an interview with nth and 12th prosecution witnesses, who said that complainant would undertake nothing attend the feasts and that a provisional interdict might be prepared for publication in case he attempted to do so. But the Court has no right to review the accused's exercise of his discretion in rejecting this undertaking and the alternative, the issue of an interdict in case complainant broke his word, would probably have been ineffectual to prevent the consequences, including very likely a disturbance, of his doing so. It is clear from the evidence that complainant's conduct raised difficult questions of fact and religious law, for in his lawyer's letter, Ex. A, he had referred to the newspaper report of the original occurrence, a dinner at which he and pariahs had eaten together, as false without qualification and it appears from the evidence that there was much to be said as to the exact conditions, in which such intercourse would be sinful, and that some of accused's advisers were raising the question whether any penance could be effectual. In these circumstances there is, regard being had to the limitation on the Court's right to scrutinize the accused's proceedings, more than enough to show that they were up to this stage taken in good faith.
4. In fact this account of what happened has really been necessary for the appreciation of complainant's further contention that the provisional form of Ex. F was and was intended to be a device, by which the permanent or indefinite postponement of the passing of a final order after enquiry and hearing of his defence could be secured. But in view of the circumstances already stated the further short delay until 9-12-1920, when the complaint was filed, needs no separate justification. No doubt the later periods until 4-10-1921, the date of the Magistrate's decision, and until 6-2-1922, that of the hearing of the appeal both (it may be observed) unduly prolonged by those responsible for the conduct of the proceedings passed without a final disposal by accused of the case; and they may he relied on, not as supporting directly the charge, which had been made before they began, but as evidence of accused's original intention. But they go very little, if any, way towards establishing what complainant requires and what, the form of Ex. F being provisional, it is for him to prove. In that sense there is nothing direct to support him, his evidence going no further than that, when nth and 12th and 18th prosecution witnesses, apparently on 30-11-1920 and 1-12-1920, remonstrated with accused and asked whether he would hold an enquiry, say within a year, he gave them no answer, a natural course when it is remembered that this prosecution had already been threatened and that such enquiries we're inconsistent with respect for his spiritual supremacy. After the complaint which was made mainly without reference to the failure to hear complainant and on the ground that the interdict was unjustifiable on its merits, accused may well have hesitated before proceeding to a final sentence, which might be regarded as an aggravation of what he had done. It may be true that, as 18th prosecution witness says he represented, there have in the past under accused's predecessors been cases, in which the interval between the provisional and final orders was long enough to raise suspicion as to the intention of the former. But that is not sufficient to justify the affirmative conclusion, for which complainant contends and which he can support only on the negative ground of a delay, which is intelligible in the circumstances of the case. It is not in those circumstances possible to hold that accused intended the order, Ex. F, to be other than provisional, or that he acted in bad faith. The result is that Exception 7 to Section 499 is applicable and that the conviction and sentence must be set aside, the fine, if levied, be refunded.
5. This is a revision Petition filed against the order of the Sessions Judge of South Kanara, confirming the conviction and sentence by the First Class Divisional Magistrate of Mangalore under Section 500 of the Indian Penal Code (Defamation). The accused is the petitioner. He is the head of the Kasi Mutt in South Kanara District and a section of the Gowd Sarasawat Brahmins are the disciples of the Mutt.
6. On 24th October 1920, in celebration of the 56th anniversary of the Brahmo Samaj, there was a dinner at which about, 150 people of all castes including Pariahs, Mahomedans and Christians were present. There were also three Gowd Sarasawat Brahmins, two of whom were Messrs M.N. Prabhu (the complainant) and M. Madhava Rao, Vakils practising at Mangalore. The dinner was by invitation and it appears that no Pariah was invited nor were any pariahs named on the list of invited guests. Mr. Prabhu was in the row opposite to the one in which the Pariahs sat. An account of the dinner appeared in the local Vernacular paper - Kantirava (Ex. I dated 26th October 1920). This was followed by a Memorial (Ex. II dated 29th October, 1920) signed by more than a hundred people of the Gowd Saraswat Community to the Muktessars of Sri Venkatramana Temple in Mangalore, calling attention to the report in the paper and to the fact that three members of their community had been present at the dinner and requesting the Muktessars to take action lest those persons should attend the Temple dinners, which were to come off on November 23rd and 25th and there should be a disturbance. The Muktessars then called a meeting (Ex. VIII) for November 2nd and at that meeting a resolution was passed that the memorial should be forwarded to the Swamis of the Kasi and Gokarna Mutts for disposal. The resolution was confirmed at another meeting and the memorial was forwarded by Ex. XIII dated 4th November 1920 to the accused who happened then to be in Mangalore. On the 14th November, Messrs. Frabhu and Madhava Rao addressed Ex. Section to one Mr. Venkoba Rao, (P.W. 12) in which after referring to the caste trouble ' now pending before the Swami of Kasi Mutt' they gave an undertaking not to attend Temple dinners or even enter the Temple premises during the Kartika Pournami celebrations (November) without prejudice to any action they may be advised to take in the matter in future. The nth and 12th witnesses for the prosecution had at about this time two interviews with the accused. The first one was on the invitation or the accused. The second one was three or four days afterwards. Between the two, Mr. Prabhu met Mr. Srinivasa Pai (P.W. 11) and told him of his willingness to do prayaschittam if necessary and to request the Swami not to issue an interdict. P.Ws. 11 and 12 at these interviews did their best to induce the Swami not to take any strong course of action against Mr. Prabhu. Mr. K. Sadasiva Rao, an Advocate of Mangalore also sent Ex. A (dated 16th November 1920) to the Swami on behalf of Messrs Prabhu and Madhava Rao, complaining that the report in the Kantirava was false and malicious (but without giving any particulars as to the matters in respect of which the report was inaccurate) and warning that the Swami will be held wholly and solely responsible in law if he should issue arbitrarily and without full enquiry and before hearing what his clients have to say in the matter, any interdict against them. On the 20th November the accused replied to Ex. XIII by calling for the original memorial and a muchilika (a statement) solemnly affirming the facts stated in the paper. Ex. III dated 20th November 1920, a statement signed by a number of persons confirming the report in the paper was accordingly sent to the accused. The interdicts Exs. F and H were thereupon issued on the 23rd November. They purport to be interim orders and are to remain in force until a second order is issued.
7. The present complaint was launched on 8th December. The Sessions Judge finds (1) that there was no excessive publication (2) that there was no violation of the principles of natural justice in the procedure adopted by the accused and (3) that a temporary interdict was unnecessary and that a final order without unnecessary delay ought to have been issued once for all. On this least ground, he held that the accused did not act in good faith and affirmed the conviction.
8. Taking up this last ground, I am unable to concur with the learned Sessions Judge. It is not for the Courts to dictate the details of the procedure to persons in the position of the accused. Considering that there was conflict of opinion as to how far the action of Messrs. Prabhu and Madhava Rao was reprehensible and that the matter was urgent as the temple dinner was to come off on the 23rd, it cannot be said that temporary interdicts (like Exs. F and H) were not called for. On the other hand, the very fact that the accused was not in great haste to make up his own final opinion one way or the other argues in favour of the view that he was acting with great caution. Though society has marched far (one would think it is not very far) since 1883, the law as laid down in The Queen v. Sankara I.L.R. (1883) M. 381 has not changed and it cannot be said that greater promptitude is required from caste authorities in 1920 than in 1883. It must be remembered that though action like that of the accused savours of tyranny and oppression from the point of view of an advancing community and becomes almost intolerable as the general community becomes more catholic, so long as a submission to the headship of a Swami remains the usage of the caste and the members of the community do not shake themselves off from such headship, the Swami is perfectly within his rights to resort to the Orthodox methods of conventional discipline and of vindicating caste usages, provided principles of natural justice are not violated. The advancing community is not justified in expecting its own progressive opinions to be reflected in the immutable minds of the Swamis or their faithful followers; nor can they be coerced to change with the times by fear of criminal prosecution.
9. The learned Advocate General who appeared for the. complainant attempted to support the conviction on two grounds : (1) that the interdicts were issued without due notice to Mr. Prabhu and in effect, without giving him an opportunity of being heard and (2) that the temporary interdict was really intended to be permanent as no final order has yet been issued. As to the first ground, the interviews of P.Ws. 11 and 12 with the accused and the notice (Ex. H) sent by Mr. Sadasiva Rao show that Mr. Prabhu anticipated the action of the Swami and had no opportunity of making such representation to him as he thought fit and it must be held that, for the purposes of a temporary order at least, the absence of a more formal notice could not be taken as indicating want of good faith.
10. As to the 2nd it is enough to observe that it cannot be said that a reasonable time for a complete enquiry had elapsed by the time the prosecution was launched. It is true that no final order has been issued up to date. The Counsel for the accused explains that this is due to the present proceedings. Though the explanation is not such as a man of business should advance, I still think it is true. The Advocate General says that when the accused was asked to state when he would hold his final enquiry, he did not give any answer. It is difficult to hold that he was bound to give an answer to such a question especially having regard to the manner in which it was put to him. Anyhow, the materials on the record are totally inade quate to enable me to come to the conclusion that it was clear by the 8th December that the accused had no intention to hold the final enquiry within a reasonable time.
11. In my opinion no offence has been made out and the conviction and sentence must be set aside. I only wish to add, I have no doubt that Mr. Prabhu had been the victim of an oppression northing short of cruelty and he has all my sympathy. I do not in the least sympathise with the accused or his followers. The fault lies in the social system of which Mr. Prabhu is a member and the sooner one sets about to improve it the better, and it is futile to attempt to make persons like accused responsible for the persecution.