1. This is a revision against an order passed by the Special First Class Magistrate, Palavered. The petitioner was prosecuted for the offence, of defamation. In the complaint filed it is alleged that the petitioner has written letters to persons in, Madurai, in which he had made allegations, which are defamatory. But in paragraph 6 of the complaint it is also stated that the accused was spreading gossips in the village in the business circles purely to belittle complainant's business integrity and harm his business if possible and that he had on more than one occasion defamed the complainant in the presence of witnesses.
The letters alleged to have been sent to merchants at Madurai were posted at Chingleput and they were received at the other end by the persons to whom they were addressed. An objection was raised by the accused in the lower Court that inasmuch as the letters referred to were sent to Madurai and were received at Madurai and as the publication, therefore, to the two persons was at Madurai, the Court at Pallavaram to which the case was transferred by the learned District Magistrate has no jurisdiction.
2. The main contention of the learned counsel for the petitioner is that the essence of the offence of defamation consists in publication of the libelous matter and that as there was no publication within the limits of the jurisdiction of the District Magistrate of Chingleput, the District Magistrate of Chingleput has no jurisdiction to take the complaint on file. But the learned counsel, who appears for the complainant-respondent, contends that the District Magistrate of the place at which the letters were posted has jurisdiction.
He relies for his contention on the decision of Spencer J. in Krishnamurthi Iyer v. Parasurama Aiyar, 44 M LJ 648: AIR 1923 Mad 666 (A). Spencer J. holds that if the accused has done all in his power towards publication and has lost control of the letter when he has committed it to the post, then he is said to have committed the offence in the place where it is posted. He referred to an English case, Rex v. Burdett, (1820) 106 ER 873 (B).
A perusal of that report will show that on the facts of that case the Jury was entitled to come to the conclusion that the letter which was addressed to X at some place was delivered to Y at another place not being put in a sealed cover, and therefore it could be publication to Y at the place where it was delivered to her. On the facts of that case publication could be inferred at the place where it was delivered to him.
On the facts of that case publication could be inferred at the place where it was delivered. That case cannot be an authority for the proposition that when a letter enclosed in an envelope is posted at any particular place, it can amount to publication at the place where the letter is posted. Spencer J. seems to hold that when once the accused has done what all he could do towards the publication, it must be deemed to have been published.
But he does not take into account the miscarriage of letters by post or the letters being lost in transit on account of accidents. There may be so many other ways in which the letters posted might not reach the other side at all, in which case' there will be no publication of the letter. The gist of the offence being publication of the defamatory matter, if the letter does not reach the other side, it cannot be said that defamation has been completed merely because the letter was posted at a particular place.
There must, therefore, be evidence of the publication to constitute detamation and till the letter is published it cannot be said that 'defamation has been committed. The decision of Spencer, J., has been followed by a Bench of this Court consisting of Odgers and Hugnes, JJ., in Burke v. Skipp, AIR 1924 Mad 340 (C). But the facts of that case will show that the letter which is said to contain defamatory matter has not been proved to be in the handwriting of the accused.
On the facts, therefore, the question does not arise as to whether the posting in a particular place would amount to publication, when the defamatory matter itself was not proved to be in the handwriting of the accused. What applies to the decision in 44 Mad LJ 648: AIR 1923 Mad 666 (A), equally applies to AIR 1924 Mad 340 (C), inasmuch as the decision in AIR 1924 Mad 340 (C) follows the decision in 44 Mad LJ 648: AIR 1923 Mad 666 (A).
3. The only other question is whether, when two offences were committed, as the complainant alleges in this case, one in the village where the accused has been publishing libelous allegations against the complainant and the other by posting letters to others in other places, both of them can be tried together in one place. In Govindaswami, In re : AIR1953Mad372 , Govinda Menon and Mack, JJ., seem to think that, if two offences were committed in two different places over which two Courts have jurisdiction and if they were committed in the course of the same transaction, they could be tried by one Court.
Here again the point docs not specifically arise for consideration, because there the two cases were tried differently by different Courts. The observations are therefore obiter and they are not binding on me. In Laxumana v. Kamala, 1929 Mad WN Cr. 38 (E),. Reilly, J., has held that successive publications of a defamatory matter though it might have been made in the same evening to different persons do not form part of one transaction. That is only a repetition rather than a continuity. So he held that he offence of defamation by publishing the defamatory matter to five different persons successively the same evening cannot be tried together, I agree with he view expressed by Reilly, J.
4. In that view I must bold that the Court at Pallavaram has no jurisdiction to try the offence of defamation committed in Madurai by the publication of the letters to the two merchants there. But there are allegations in the complaint, which show that the accused has been spreading gossips in the village itself and that there are persons before whom he has defamed the complainant. If the complainant is willing to confine his case to these allegations made to persons within the village, then the trial Court can proceed with that offence and that offence alone.
As regards defamation by means of writing letters to merchants in Madurai, the Court in Chingleput District has no jurisdiction to try that offence. It is therefore open ,to the complainant to elect and prosecute the complainant restricting his case only to the allegations made to persons within the village. Otherwise the Palavered Court has no jurisdiction to try this case.