N.C. Talukdar, J.
1. This Rule is for quashing the proceedings under Section 500 of the Indian Penal Code, pending before Sri K.K. Roy, Magistrate, 1st Class, Cooch Behar, in Case No. C.R. 28 of 1966 under Section 500 I.P.C. as not maintainable in law and on merits.
2. The facts leading on to the Rule are chequered but can be put in a short compass. The complainant, Rajat Kanti Bhadra, who described himself as a member of the Shoulmari Ashram, filed a complaint under Section 500 I.P.C, in the Court of the learned Sub-Divisional Magistrate, Cooch Behar against two accused persons viz., Sookomal Kanti Ghosh, Editor of a Bengali Daily called the 'Jugantar' and Dhirendranath Sen, the printer and publisher of the same. The impugned publication is an item of news purported to have been served by the P.T.I, and U.N.I, and appeared in the issue of the Jugantar dated the 7th December, 1965, under the sub-heading 'Shoulmari Sadhu', the English translation whereof is as follows: 'The Foreign Minister stated that the Sadhu of Shoulmari who calls himself Subhas Chandra Bose, is not Netaji and the Government has not the least doubt about this fact that he is not'. It was averred that the said newspaper which was published in Calcutta, was widely distributed in West Bengal, including Cooch Behar, within the jurisdiction of the abovementioned court. The learned Magistrate examined the complainant on solemn affirmation and sent the case for judicial enquiry and report to Sri I. Sundas, Magistrate, 1st Class, Cooch Behar. The latter after examining the complainant and four other witnesses observed on 16-3-1966 that no cognizance can be taken of the offence under Section 500 I.P.C. as there was a non-conformance to the provisions of Section 198 of the Code of Criminal Procedure, inasmuch as the complainant is not the person aggrieved within the meaning of that section, and dismissed the complaint under Section 203 of the Code of Criminal Procedure, sending back the record to Sri S. K. Banerjee, Magistrate, 1st Class, Cooch Behar. On a perusal of the said report, Sri S.K. Banerjee, Magistrate, 1st Class, Cooch Behar by his order dated the 18th March, 1966, dismissed the complaint under Section 203 of the Code of Criminal Procedure. The complainant thereupon preferred a revisional application under Section 436 of the Code of Criminal Procedure before the learned Sessions Judge, Cooch Behar for setting aside the order of the trying Magistratedismissing the complaint and for holding a further enquiry into the complaint filed. Sri H.N. Sen, Sessions Judge, Cooch Behar, by his order dated the 30th September. 1968, allowed the said application and directed a further enquiry into the complaint referred to above. The learned trying Magistrate, on receiving back the records sent the case to Sri G. C. Chatterjee, Magistrate, 2nd Class, Cooch Behar, for judicial enquiry and report by his order dated the 6th January, 1967. Four witnesses were examined by the learned enquiring Magistrate who ultimately submitted a report on 26-6-1967 holding that there was a prima facie case against the accused persons under Section 500 I.P.C. On the 12th July, 1967, Sri N. N. Pal, Magistrate. 1st Class, Cooch Behar, perused the report of the judicial enquiry and summoned both the accused under Section 500 I.P.C. This order as also the proceedings based thereupon have been impugned by the two accused-petitioners and the present Rule was obtained.
3. Mr. Ajit Kumar Dutt, Advocate (with Messrs. Prasun Chandra Ghosh and Birendranath Banerjee, Advocates) appearing on behalf of the accused-petitioners in support of the Rule, has made 3 three-fold submission. The first contention of Mr. Dutt which is one of law and goes to the very root of the case, inter alia is that the cognizance of the case as taken by the learned Magistrate has been bad in law and without jurisdiction vitiating the resultant proceedings because of a non-conformance to the mandatory provisions of Section 198 of the Code of Criminal Procedure inasmuch as the present complainant is not 'some persons aggrieved' within the meaning of Section 198 of the Code. In support of his contention, Mr. Dutt referred to the averments made in the petition of complaint which relate to the Sadhu of Shoulmari only and also to several authorities as well as some reported decisions on the point. The second contention of Mr. Dutt raises an interesting point of law viz., that even if it be assumed that the petition of complaint discloses a defamation of the Ashram, thereby touching the complainant as a member thereof, no action would lie under Section 500 I.P.C., as the Ashram is an indeterminate body. To establish his point on this behalf. Mr. Dutt referred to the allegations made in the petition of complaint and to the contents of the impugned publication itself. The third and the last contention of Mr. Dutt is however one of fact and relates to merits viz., that the impugned publication is not in any way defamatory and in any event the proceedings are not maintainable in the absence of the two news agencies which served the news item. When the case was called on forhearing, nobody appeared on behalf of the complainant-opposite party and after the matter was heard in part, it was adjourned in the interests of justice to give an opportunity to the complainant-opposite party to appear through some other learned Advocate, as it appeared from the records that the learned Advocate, who had originally been engaged and filed the power, was elevated to the Bench. Ultimately an administrative notice had to be issued and Mr. Arun Kumar Jana, Advocate, appearing on behalf of the complainant-opposite party made his submissions. Mr. Jana submitted in the first instance that the objections raised on behalf of the accused-petitioners as to whether there has been a proper cognizance under Section 198 of the Code of Criminal Procedure or whether the present complaint merely discloses the defamation of an indeterminate body or whether the impugned publication is not at all defamatory and not maintainable in the absence of the two news agencies, are ultimately questions of fact to be determined in a full-fledged trial and therefore the prayer for quashing at this stage is premature. With regard to the first submission of Mr. Dutt. Mr. Jana contended that there has been no non-conformance to Section 198 of the Code of Criminal Procedure because the defamation alleged relates to the head of the institution. His Holiness Srimat Saradanandiee, touching thereby all the members of the Ashram who are his disciples. In this context, he submitted that the impugned publication having lowered the Head of the Ashram in public estimation, has also so lowered the complainant, who is but a member of the said Ashram, and is as such a 'person aggrieved' within the meaning of Section 198 of the Code of Criminal Procedure. Mr. Jana next submitted that the second contention of Mr. Dutt is also not maintainable inasmuch as the defamation alleged relates not to an indeterminate body but to an Ashram, the religious head whereof viz.. His Holiness Srimat Saradanandiee, was defamed, touching thereby the present complainant also as his disciple. As to the third and last contention of Mr. Dutt, Mr. Jana joined issue and submitted that the point whether the impugned publication is defamatory or not, is based ultimately on fact and is but premature at this stage, without a full-fledged trial.
4. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the legal materials on the record, I will now proceed to determine the various points raised. As to the first contention raised by Mr. Dutt that the cognizance taken by the learned Magistrate has been bad in law because of a non-conformance to themandatory provisions of Section 198 of the Code of Criminal Procedure, the steps of Mr. Dutt's reasoning are that the impugned publication has not in any manner, directly or indirectly, defamed the Ashram or the complainant as its member or even any other member of the said Ashram, that the complainant in the facts and circumstances of the case could not in law bring an action for libel merely on the ground that his feelings have been injured that the complaint has been filed by a person who does not come within the ambit of the expression 'some persons aggrieved' within the meaning of Section 198 of the Code of Criminal Procedure; and that there having been a clear non-conformance to the mandatory provisions of the statute, the resultant proceedings stand vitiated and should be quashed at the earliest stage. in this connection Mr. Dutt made an ancillary submission that in any event, the Shoulmari Ashram being an unincorporated body or association of individuals, the complainant as its member has no cause of action and could not in law bring an action for libel, as the 'person aggrieved'. Mr. Jana's reply to the first point raised by Mr. Dutt, in a short compass, is that the defamation complained of in this case is not of an indeterminate body but it relates to the Head of the Institution, His Holiness Srimat Saradanandiee, thereby touching all the members of the Ashram as being his followers and that when the religious head is lowered in public estimation, the disciples, amongst whom the present complainant is one, are also so lowered. The complainant therefore is a 'person aggrieved' within the meaning of Section 198 of the Code of Criminal Procedure and there is consequently no defect in cognizance. in support of the respective contentions on the first point as referred to above, various authorities have been cited and a reference has also been made to several reported decisions. in Halsbury's Laws of England (3rd Edn.: Edited by Viscount Simonds) Vol. 24, page 5, paragraph 6, It has been observed under the heading 'Group Defamation' that 'A class of persons cannot be defamed as a class, nor can an individual be defamed by general reference to the class to which he belongs'. A similar view was taken by Gatley in 'Libel and Slander' (4th Edn.) at page 115 wherein there is a discussion relating to the 'defamation of a class' and it has been stated that 'where the words complained of reflect on a body or class of persons generally, such as lawyers, clergymen, publicans or the like, no particular member of the body or class can maintain an action'. The observations of Mr. Justice Willes in the case of Eastwood v. Holmes, (1858) 1 F & F 347 at p. 349 have been approved of and a reference was further made to the caseof O. Brien v. Eason reported in (1913) 47 Ir LT wherein Lord Justice Holmes and Lord Justice Cherry observed that the dictum of Willes J. In the case of (1858) I F & F 347 'was sound law and strictly applicable'. A reference in this connection may also be made to Odgers 'on Libel and Slander' (6th Edn.) at page 123 wherein it has been stated that 'The defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff'. It was further observed at page 124 that 'so if the words reflect impartially on either A or B, or on someone of a certain member of class, and there is nothing to show which one was meant, no one can sue.' It would therefore appear that there is an imprimature of authorities on the point that there will be no action of libel, if the body defamed is indeterminate, unless and untill an individual is referred to. As to the case law on the point, I will refer in the first instance to the case of Kunpffer v. London Express Newspaper, Ltd., (1944) AC p. 116 wherein Lord Porter observed at pp. 123 and 124 that 'this case raises once again the question which is commonly expressed in the form; 'can an individual sue in respect of words which are defamatory of a body or class of persons generally?' The answer as a rule must be 'No,' but the inquiry is really a wider one and is governed by no rule of thumb. The true question always is; 'was the individual, 'or were the individuals, bringing the action personally pointed' to by the words complained of ?'. The next case on the point is the case of Braddock v. Bevins (1948) 1 K. B. 580 wherein the Master of the Rolls, Lord Greene delivering the judgment of the court, observed at page 588 that 'No one of these is named in the alleged libels and before any one of them can succeed he must show that the alleged libels were or one of them was published of himself. In establishing this there are two stages. First, he must satisfy the judge as a matter of law that the words are capable of referring to himself as a particular identifiable individual ......... and secondly, if he succeeds in this he must satisfy the jury that the words do so refer to himself'. It was further observed at page 599 that 'the words appear to us to be a mere generalisation and on applying the principles laid down by the House of Lords in 1944 AC 116 the appeal of these three appellants fails'. I may refer in this context to the Nil Darpan case tried by the Supreme Court of Calcutta, cited in Mayne's Criminal Law of India wherein the words impugned as stated are 'I present the indigo planters' mirrors to the indigo planters' hands'. Chief Justice Sir Barnes Peacock observed thereupon that 'this certainly appears to me to represent to the indigo planters that if theylook into this paper they would see a true representation each of himself'. Mr. Justice B. B. Ghose in his dissentient judgment in the case of Pratap Chandra Guha Roy v. King-Emperor. : AIR1925Cal1121 referred to the same and observed at page 1127 that 'the true rule appears to be that if a person complains that he has been defamed as a member of a class he must satisfy the court that the imputation is against him personally and he is the person aimed at, before he can maintain a prosecution for defamation'. Mr. Dutt relied upon the observations made in the abovementioned case by Mr. Justice Buckland to whom the case was referred to as the third Judge, on a difference of opinion between Mr. Justice Newbould and Mr. Justice B. B. Ghose, viz,, that exception 2 to Section 499 I.P.C. Is intended to include a company or an association or collection of persons as such within the word 'person' as used in the definition, so that the latter should not be limited to individuals. It is doubtful if the police force at a particular place is an association or collection of persons as is contemplated in Exception 2, Section 499 I.P.C. and that the police force as such cannot complain of any imputation as regards its personal reputation. Mr. Justice Buckland agreed with the observation of Mr. Justice B. B. Ghosh that the true rule in such cases is that when a person complains of defamation as a member of a class he must satisfy the Court that the imputation is against him personally before he can maintain a prosecution for defamation. The next case referred by Mr. Dutt is the case of Hosseinbhoy Ismailji v. Emperor, (1935) 36 Cri LJ 408 (Sind), wherein it was observed by the Additional Judicial Commissioner Mr. Mehta that only such person as has directly or indirectly suffered in his own reputation by the defamation complained of can set the machinery of the law Courts into motion. In short, the aggrievement of the complainant should not merely be the one shared by every member of an organised society. Where, therefore, the editor of a paper writes an editorial which is highly defamatory of the spiritual head of a certain community, an individual of that community is not an aggrieved person within the meaning of Section 198, Criminal Procedure Code. Mr. Dutt further referred to another case (1935)36 Cri LJ 975 (Sind) viz., the case of Hosseinbhoy Ismailji v. Emperor, wherein the Judicial Commissioner Ferrers and the Additional Judicial Commissioner Rupchand held that where the person defamed, namely the High Priest of a community, is a male adult and does not come within the proviso to Section 198 Criminal Procedure Code, it is for him to complain, and for nobody else whether on the strength of his written authority or otherwise. The mere fact that the feel-ings of the complainant have been injured in consequence of a defamatory statement made against his religious head, affords him no ground under the law to prosecute the accused for defamation. in the case of Ankaraju Subbaraya v. Batuk Prasad : AIR1937All677 , Mr. Justice Ganga Nath referred with approval to Odgers 'on Libel and Slander' (6th Edn.) at pages 123 and 124 and the case of AIR 1925 Cal 1121, mentioned above and observed at page 678 that 'if a well-defined class is defamed, each and every member of that class can file a complaint. in other cases the defamatory words must refer to some ascertained and ascertainable person and that person must be the complainant. Where the words reflect on each and every member of a certain number or class, each or all can sue. If the words reflect impartially on either A or B, or on someone of a certain number or class, and there is nothing to show which one was meant, no one can sue ..................If a person complains that he has been defamed as a member of a class, he must satisfy the Court that the imputation is against him personally and he is the person aimed at before he can maintain a prosecution for defamation'. It will be pertinent in this context to refer also to the decision of the Supreme Court in the case of Sahib Singh Mehra v. State of Uttar Pradesh, : 1965CriLJ434 wherein Mr. Justice Raghubar Dayal delivering the judgment of the court observed at page 1453 that 'explanation 2 provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such ......... The language ofExplanation 2 is general and any collection of persons would be covered by it. Of course, that collection of persons must be identifiable in the sense that one could, with certainty, say that this group of particular people has been, defamed, as distinguished from the rest of the community'. Mr. Jana appearing for the opposite party referred to the case of Jagdish Narain v. Nawab Shams Ara Begum, (1935) 36 Cr LJ 116 (Oudh) and the observations made therein by Mr. Justice Zia-Ul-Hasan relating to the provisions of Section 198 of the Code of Criminal Procedure as to cognizance. The facts, however, are clearly distinguishable and the principles ultimately laid down there viz., chat the provisions of the said section are mandatory, are not disputed in the present case. It accordingly does not help the contention of Mr. Jana advanced in this behalf. I respectfully agree with the principles laid down by the authorities referred to above as also with the observations made in the cases cited before and I hold that the interpretation sought to be given by Mr. Jana to the provisions of Section 198 of the Code of Criminal Procedure is untenable as itseeks to cloak the same with too wide a meaning, much beyond the intention of the legislature. There has been in fact no proper cognizance in this case as enjoined under Section 198 of the Code of Criminal Procedure and the first contention of Mr. Dutt succeeds.
5. The second contention of Mr. Dutt also stands on a strong footing. The impugned publication as submitted by him, relates to the Head of the Shoulmari Ashram, His Holiness Srimat Saradanandjee, described as 'the Sadhu of Shoulmari' and not to the present complainant personally and that in the petition of complaint also there is no allegation that the complainant has been, in any way, defamed personally. The facts and circumstances again, Mr. Dutt urged, do not disclose any defamation of the Ashram either directly or indirectly and in any event the Shoulmari Ashram being an unincorporated body or association of individuals, the complainant as one of its members could not in law bring an action for libel. I have gone through the petition of complaint in this connection and have given my anxious consideration to the averments made therein but I find that there is neither any imputation against the complainant personally nor any defamation against the Ashram as such. Even if it be assumed that the petition of complaint discloses a defamation of the Ashram thereby touching the complainant as a member thereof, no action would lie under Section 500 I.P.C. as the Ashram is an indeterminate body. I agree, therefore, with the submission of Mr. Dutt that the present proceedings are an abuse of the process of the court and the objection thereto having been taken at the earliest stage, the same should be quashed in the interests of justice. in this context a reference may be made to the observations of the Supreme Court in the case of H. N. Rishbud v. State of Delhi, : 1955CriLJ526 wherein Mr. Justice Jagannadhadas delivering the judgment of the court observed at page 269 that 'when the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for ............When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537 Cr. P. C., of making out that such anerror has in fact occasioned a failure or justice'. It was ultimately held that 'To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused', I uphold therefore the second contention, also of Mr. Dutt.
6. The third and last contention of Mr. Dutt relates to merits viz., that the impugned publication is not in any way defamatory and that the proceedings are not maintainable in the absence of the two news agencies which served the news item. So far as the second part of the contention is concerned, it is not maintainable inasmuch as there is no bar in law to the institution of a proceeding for defamation against the present accused without the two news agencies being made co-accused therein. The first part of the contention again is based ultimately on facts' and the same is indeed premature at this stage. It may be pertinent in this context, to ascertain what defamation is and the ingredients thereof, Many definitions have been attempted but none has been found exhaustive. The concept of defamation is as old as the hills and the Indian Penal Code makes no distinction between the written and spoken defamation and the term defamation includes both libel and slander. The classical definition of the term however has been given by Mr, Justice Cave in the case of Scott v. Sampson, (1882) 8 QBD 491 as a 'false statement about a man to his discredit'. This definition has been approved of in a series of decisions including that of Sim v. Stretch, (1936) 52 TLR 669 at p. 671 where Lord Atkin observed that 'would the words tend to lower the complainant in the estimation of the right thinking members of the society generally'. The concept of defamation is indeed a mixed concept partly subjective and partly objective and the institution of the proceedings must be against the background of Section 198 of the Code of Criminal Procedure. Upon ultimate analysis however, whether the impugned publication is defamatory or not is a question of fact and the same must abide a full-fledged trial. I hold accordingly that the third contention of Mr. Dutt is premature at this stage.
7. In the result, I make the Rule absolute; and I quash the criminal proceedings under Section 500 I.P.C. pending before Sri K. K. Roy, Magistrate, 1st Class, Cooch Behar, in C. R. Case No. 28 of 1966.