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Pratap Chandra Guha Roy Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal1121,90Ind.Cas.387
AppellantPratap Chandra Guha Roy
RespondentEmperor
Cases ReferredLe Fanu v. Malcolmson
Excerpt:
- newbould, j.1. the petitioner, pratap chandra guha roy, was tried and convicted by the sub-divisional magistrate of faridpur on three charges of defamation and was sentenced under section 500 of the indian penal code to one year's simple imprisonment for each offence, the sentences to run concurrently. on appeal to the sessions judge of faridpur his conviction on the third charge was set aside and the sentences were reduced to six months' simple imprisonment on each of the two charges on which the conviction was upheld, these sentences also running concurrently. the petitioner has obtained an open rule from this court calling upon the district magistrate and the complainant to show cause why the conviction of and the sentence passed on the petitioner should not be set aside or such other.....
Judgment:

Newbould, J.

1. The petitioner, Pratap Chandra Guha Roy, was tried and convicted by the Sub-Divisional Magistrate of Faridpur on three charges of defamation and was sentenced under Section 500 of the Indian Penal Code to one year's simple imprisonment for each offence, the sentences to run concurrently. On appeal to the Sessions Judge of Faridpur his conviction on the third charge was set aside and the sentences were reduced to six months' simple imprisonment on each of the two charges on which the conviction was upheld, these sentences also running concurrently. The petitioner has obtained an open Rule from this Court calling upon the District Magistrate and the complainant to show cause why the conviction of and the sentence passed on the petitioner should not be set aside or such other orders passed as to this Court may seem fit.

2. The two charges in respect of which the petitioner's conviction has been upheld are as follows:

Firstly: That you on or about the 13th day of June 1923 at Berhamganj, P.S. Sibchar, defamed the complainant by making and publishing the following imputation in your speech at a public meeting concerning the police force employed at Char Maniar of which the complainant was a member and the principal officer in charge of the investigation to the effect that not to speak of the police only, but the British Government themselves and the superior officers Including from the District Magistrate down to the daroga and chowkidar's were all beasts and pigs In their conduct, intending to harm, and knowing and having reason to believe that it would harm, the reputation of the said complainant and the police force employed at Char Maniar, and that you thereby committed an offence punishable under Section 500, Indian Penal Code, and within my cognizance.

Secondly: That you on or about the 17th day of June 1923 at Faridpur, P.S. Kotalli, defamed the complainant by making, and publishing in your speech at a public meeting the following imputation concerning the police force employed at Char Maniar of which the complainant is a member and the principal officer in charge of the Investigation to the effect that the 'police force employed at Char Maniar had bitten off the nipple of the breast of women and had bitten the sheek of a, woman nine month's pregnant intending to harm and knowing and having reason to--believe that such imputation will harm the reputation of the complainant and the police employed at Char Maniar, and that you thereby committed an offence punishable under Section 500, C.P.C. and within my cognizance.

3. The complainant is Rasiduddin Khan, a Sub-Inspector of Police. On the night of the 16th May 1925, a dacoity was committed in the house of one Adu Molla in village Char Maniar. In consequence of Information received a body of police under another Sub-Inspector, Badaruddln Ahmed, arrived there while the dacoity was going on. For some reason that has not been made clear the Sub-Inspector Badaruddiln and his party were attacked and kept, confined by the villagers of Char Maniar. Rasiduddln Khan was the Sub-Inspector in charge of Sadarpur police station In whose jurisdiction Char Maniar is situated. As such he investigated both cases, the case of dacoity and the case of assault on the police mentioned above. The petitioner who is a member of the District Congress Committee made several speeches, and the charges set out above relate to statements he is alleged to have made in two of those speeches.

4. A great deal of time has been wasted in the lower Courts owing to their having investigated issues that did not arise on the charges framed and the defence set up by the petitioner. The charges, though not well worded, have evidently been framed on the case for the prosecution that the complainant is one of an association of persons, the police force employed at Char Maniar, and that imputations have been made against this collection of persons as such, so as to amount to defamation as defined in Section 499, I.P.C., with special reference to Excep. 2 of that section. The main defence of the petitioner is a denial that he defamed the complainant. Though be does not deny having made imputations against some members of the police force employed at Char Maniar, he contends that these imputations are not directed against the whole body of members of that force and were not defamatory of the complainant either individually or as a member of that body. His case is that, so far as he made general imputations, they were criticisms of the acts of the Government, and so far as the made imputations of definite acts, they were against Bengali constables only and not against the whole police force at Char Maniar. He has attempted to justify the accusations of the constables; but no attempt has been made to justify any imputation against the complainant. Consequently it is irrelevant whether the imputations against the constables were true or were made in good faith and it is unnecessary to consider the evidence relating to these issues.

5. As regards the charges on which the petitioner has been convicted, the first contains a definite allegation that the complainant was defamed by an imputation concerning the police force employed at Char Maniar, of which he was a member. The words set out in the charge are not mere abuse and are clearly defamatory. The only defence worthy of serious consideration that is made to this charge is a denial that such words were used. The principal witness as to the words used in the speech delivered at Berhamganj was Ansar Ali (P. W. No, 6), a Sub-Inspector who took written notes of the speech in long-hand Bengali. For the petitioner it is urged that the defamatory words set out in the charge are not found in these written notes (Ex. 7', and, therefore, the charge must fail. But the written notes do not purport to be a complete report of the speech, I see no reason, why this witness, with the assistance of these notes, should not be able to remember that these words were used. Further, the charge is not that the petitioner used these actual words, but that he used words to this effect. That he used words imputing bestial conduct to the police force engaged at Char Maniar appears not only in the written notes, but is also supported by the evidence of Mahabatulia, an Assistant Sub-Inspector of Police (P. W. 7), and three non-official witnesses (P. Ws. 20, 21 and 22). From their evidence it is clear that these imputations were made against that police force as a whole and not against the Bengali constables only. This evidence is unrebutted and justifies the findings of the lower Courts, that the first charge has been established.

6. In my opinion the conviction on the second charge cannot be upheld. Though the learned Sessions Judge finds that, in the speech delivered at Faridpur, the whole Corse at Char Maniar were attacked by the petitioner, this is not sufficient to support a conviction on this charge as framed. The charge does not relate to the whole speech but to portions alleging certain definite acts of brutality. It is not suggested that the complainant personally was accused of these acts. 1 he imputations were not against a collection of persons as such but against some individual members of that collection of persons. To accuse the police force of biting off a nipple of a woman or biting a woman's cheek is absurd on the face of it and no such absurdity is to be found in the report of this speech, Ex. 12, the accuracy of which is not seriously disputed. The prosecution might have been able to make out a case of defamation by innuendo on the allegation that the speech implied that the officer in charge of the investigation was responsible for the acts of his subordinates, but the charge as framed does not require the petitioner to meet such a case.

7. It was not argued before us that the sentence Was too severe.

8. I would therefore make this Rule absolute to this extent and reverse the finding and sentence convicting the petitioner on the second charge. I would not interfere with the conviction and sentence on the first charge.

9. I regret that I feel compelled to differ from my learned brother. As this difference will necessitate a reference to a third Judge I think it is necessary to express my opinion shortly on some other points though I have held them to be irrelevant to the issues that really arise in the case.

10. The plea of verities entirely fails. In both the judgments of the lower Courts good reasons are given for holding that the evidence to support the charges of misconduct against the constables is totally false. No attempt was made at the hearing of this Rule to meet the arguments in these judgments on which these findings were based. I can attach no weight to the argument that so many women could not have made such complaints unless there were some grounds for them. It amounts to not more than saying that if enough mud is thrown some will stick. I am unable to accept the plea that these accusations were made in good faith. It is impossible that a man of the petitioners intelligence and education could have believed the stories that were told to him. I have no doubt that he made these false imputations not believing them to be true but out of hatred of the British Government.

11. The learned Sessions Judge has written in his judgment that though he is inclined to hold that there was some kind of rough handling of Gaizulla and also that there might have been some rough handling, such as, the catching hold of woman's hand, pulling at their cloth, etc., there is no credible evidence, to support a judicial finding of these facts. The petitioner may have believed that there was a substratum of truth in the stories that were told to him but even so it was not for the public good to make these false charges. On the contrary by supporting grossly false exaggerations he made it more, difficult for the truth to be ascertained and the offenders, if any, to be punished.

12. As my learned brother and myself are divided in opinion, the case with our opinions thereon will be submitted to the Chief Justice in order that it may be laid before another Judge of the Court under Section 429 read with Section 439 of the Code of Criminal Procedure.

B.B. Ghose, J.

13. I regret I have not been able to agree with my learned brother on all the questions and as I have come to different conclusion, I give my reasons in some detail.

14. This Rule was obtained by the petitioner against the conviction and sentence under two charges of defamation under Section 500, I.P.C., by the Sessions Judge on appeal from a conviction by the trial Court, i he Sessions Judge acquitted him of one of the three charges on which he was originally convicted and reduced the sentence from one year's to six months' simple imprisonment on each charge, the sentence to run concurrently. The facts are that there was a dacoity in the house of one Adiladdi or Adu Mollah of village Char Maniar on the 16th of May 1923. When the dacoity was going on six constables, under two Sub-Inspectors, arrived at the place and they entered the house and succeeded in capturing 3 of the dacoits. The villagers turned out and apparently mistaking the policemen for dacoits assaulted them and kept them tied up in the house of Adu Mollah. Information reached the Sadarpur thana, within the jurisdictions of which Char Maniar is situated, next morning, of the dacoity as also of the policemen having been tied up and policemen in two batches arrived at the village. The first batch of policemen released, the men who had been kept tied up the previous night. The complainant Sub-Inspector Rasiduddin arrived at the village with the 2nd batch of men on the 17th May in the afternoon. Other police officers also came from other thanas. On the arrival of the police at the village almost all the male population fled away leaving the women behind them. On the 18th May house to house search was made in the village by the police, and the. police complained there for several days making enquires in both the cases, of assault on the police and of dacoity. The petitioner hoard stories of oppressive acts committed by the police in the village, came there early in June with some other persons saw many of the women who were alleged to have been maltreated and other persons and took down notes of what he had been told. Leaving the village with the information he had obtained he delivered three speeches in three different places in which he is alleged to have made defamatory statements with regard to the complainant. We are not now concerned with the third charge of which the petitioner has been acquitted by the learned Sessions Judge. We have to deal with the first two charges only. I should first dispose of two questions of a preliminary nature, It was urged that the complaint is not sustainable because it was made at the instance and under the orders of the superior officer of the complainant and not of his own motion. I do not think there is any substance in this contention. If the complainant has been defamed it is of no consequence that he complained under the orders of his superior officer in order to clear his character, although, if left to himself he might not have taken the trouble of prosecuting the offender. The second question relates to the rejection of the notes taken by the petitioner of the statements made by the villagers which he sought to prove in the trial Court. The Sessions Judge on appeal admitted the notes of the statements of those persons only, who were called as witnesses at the trial presumably as corroborative of their evidence but rejected the rest. In my opinion, the petitioner was entitled to prove the notes as evidence of his good faith and they were relevant on the question, although the persons who made the statements were not examined. I hold, that the notes were wrongly rejected, but I do not think there should be an order for re-trial on that ground as there ate sufficient materials on the record for deciding the question.

15. The charges we have to deal with are these:

Firstly, that you, etc., etc., defamed the complainant by making and publishing the following imputations in your speech at a public meeting concerning the police force employed at Char Maniar of which the complainant was a member and the principal officer...to the effect that not to speak of the police only but the British Government themselves and the superior officers including from the District Magistrate down to the Daroga and Chowkidars were all beasts and pigs in their conduct, intending to barm, etc., etc.

Secondly, that you. etc., etc., defamed the complainant by making'...the following imputation ... to the effect that the police force employed at Char Maniar had bitten off the nipple of the breast of a woman and had bitten the cheek of a woman, etc.

16. I shall now deal with the question raised a applicable only to the first charge. It. is urged that the words are merely abusive and not defamatory. General words of abuse may not be defamatory but I cannot hold that to speak of a person that he is a beast and a pig in his conduct is not defamatory. The next plea is that the petitioner did not utter the words set out in the charge but only spoke about the beastly oppression by the constables. There cannot be any doubt that the words complained of as constituting the offence must be set out in the charge and proved before the accused can be convicted. when there is a denial the evidence in support of the prosecution must be scrutinized. The notes of the speech were taken in long hand by P.W. 6 who says the accused spoke fluently and he could not take down all that the accused said. In his notes, Ex. 7, the following words occur; ' What oppression has been committed on women of 14 to 30 years, for which it is the duty of every one of us to extirpate the police like dogs, hogs and (illegible;. Why the police only, the barbarous British Government itself from the highest officer the District Magistrate down to the Daroga, Duffadar and Chowkidar all are beasts illegible).' These words are different from those set out in the charge. In his deposition the witness gives the words in Bengal, which may be translated thus ' 'We should try to extirpate the police with our heart's blood like despicable dogs, pigs and goats. Why the police only the Daroga, Magistrate, Duffadar, Chowkidar all behave like beasts and pigs.' These also are not the name words as in the charge. The other witnesses who speak about the words uttered by the petitioner are P.W. 7, P.W. 20, P.W. 21 and P.W. 22. I need not set out in detail what each witness says. It is sufficient to say that the words ascribed to the accused are differently stated by each witness and the petition of complaint also puts them differently. In this state of the evidence I cannot hold that It has been proved that the accused spoke the Words stated in the charge, and it would not be correct to say that the words given in the different versions have the same meaning. When spoken words are alleged to have constituted the offence a very slight alteration of a word may give quite a different meaning to them. From the petition of complaint and also the evidence of P.W. 6 its is clear that a distinction is made between the 'police' and the superior officers, as Deroga and the Duffadar as well as Chowkldar. This supports to some extent the plea of the accused that what he said was in relation to the constables and not with reference to the superior officers. In my judgment the evidence does not substantiate this charge and it must therefore: fail on that ground. The next point urged is that the words the accused is charged with are too general and cannot, be defamatory of an individual such as the complainant. The case of Eastwood v. Holmes [1858] 1 F & F. 347 is cited in support, where it was observed by Willes, i., that if a person wrote all lawyers were thieves, no particular lawyer could sue him for libel. It seems to me that the words in the charge 'the British Government themselves, and the superior officers including from the District Magistrate down to the Daroga and Chowkidars were all beasts, etc.' are too wide to admit of the construction that any particular police officer was defamed.

17. The other questions raised apply equally to both the charges. The first question is whether the complainant was the person defamed or, in other words, whether he is a 'person aggrieved' by the offence as contemplated under Section 198 of the Criminal Procedure Code, so as to entitle him to maintain the prosecution. This is what is stated in the petition of complaint: ' That it appears therefore that in making the above charges Dr. Pratab Chandra Guha Roy has intended to harm the reputation of the police and other high officials of the British Government and the Government themselves. ... The allegations are being announced throughout the District and it is therefore necessary that their falsity should be proved in the most effective manner viz., by trial in Court of law, etc.' The learned Standing Counsel relies on ex-planation 2 of Section 499, I.P.C., as giving the complainant the right to maintain the prosecution, That explanation runs as follow: 'It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such,' the contention seams to be that in this, case there was defamation of the police force, i.e., a 'collection of persons as such.' As far as I am aware those words in the explanation have not been judicially dealt with in any reported case. In my opinion those words mean that a collection of persons as such may be collectively detained in the same manner as a 'company.' The general principles on which a company may be said to have been defamed would therefore apply equally to the case where it ii alleged that a collection of persons as such has been detained. Those general principles were formulated by Chief Baron Pollock in 'Metropolitan Saloon Omnibus Go. v. Hawkins [1859] 4 H.& N 87, where he said: 'It (a corporation) could not sue in respects of an imputation of murder or incest, or adultery, because it could not commit those crimes. Nor could it sue in respect of a charge of corruption, for a corporation cannot be guilty of corruption, although the individuals composing, it may be.' This was adopted in Mayor, (do., of Manchester v. Williams [1893] 1 Q.B. 94 where it was laid down that a corporation may sue for libel affecting property, not for one affecting personal reputation. Similarly, Lopez, L. J., said in South Hetton Coal Co. v. North Eastern News Association [1894] 1 Q.B. 133: 'A corporation or company could not sue in respect of a charge of murder, or incest or adultery because it could not commit those crimes. Nor could it sue in respect of a charge of corruption or of an assault because a corporation cannot be guilty of corruption or of an assault although the individuals composing it may be.' These observations are quite apposite to the question before us and in my opinion the police force as such cannot complain of any imputation as regards its personal reputation because it cannot be guilty of beastly {conduct, nor can the collective body be guilty of the offence of biting off the 'nipple of the breast of a woman or of biting the cheek of a woman. The matter may be tested in another way. Suppose somebody laid a complaint before a Magistrate in terms of the words of the charges in this case, would any Magistrate issue process against the police force as such or any member of the police force? I am sure no Magistrate, would. In my judgment, therefore, the charges fail on the ground that they refer to the personal conduct only of a collection of persons as such.

18. I shall next deal with the case of The King v. Osborne 2 Born. 138, on which the learned standing counsel relied strongly. I take the report of the case from 2 Swanston as it is fuller than the report in Barnardiston. The report runs as follows: 'The paper on which the Information was prayed, contained an account of a murder committed on a Jewish woman and child by certain Jews lately arrived from Portugal and living near Broad Street, became the child was begotten by a Christian, and the affidavits set forth that several persons mentioned therein, who recently arrived from Portugal, and lived in Broad Street, were attacked by multitudes in several parts of the city, barbarously treated and threatened with death, in case they were found abroad any more.' Strange showed cause against the information, and that it could not be granted as for a libel, because it not appearing who the persons reflected upon are, no judgment can be given for the King, as in King v. Orme 1 Ld. Raym. 486.

Sed per cur. Admitting an information for a libel may be improper, yet the publication for this paper is deservedly punishable in an information for a misdemeanour, and that of the highest kind; such sort of advertisements necessarily tending to raise tumults and disorders among the people, and inflame them with an universal spirit of barbarity against a whole body of men, as if guilty of crimes scarcely practicable, and totally incredible.

19. It seems to me that Court held in that case an information for a libel was improper; but it was granted for some other misdemeanour, as tending to raise tumults, etc., I do not think this case helps the prosecution. Nor does the case of Rex v. Wiliiams [1811] 5 B. & Ald. 595, as in that case the imputation was against all the clergy in Durham and the libel was on every one of them. There is no imputation like that in the present case. I may also refer to the Nil Darpan case tried by the Supreme Court of Calcutta, cited in Mayne's Criminal Law of India. There the words complained of were: 'I present the indigo planters ' mirrors to the indigo planters' hands....' Sir Barnes Peacock, C.J., is reported to have observed on the words used: 'This certainly appears to me to represent to the indigo planters that if they look into this paper they would see a true representation each of himself. ' 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. In England the question as to how the words were understood by those to whom they were addressed, is a question for the jury if the Judge holds that there is a prima facie case. Here when the case i not tried with the aid of jury, the question must be decided by the Judge as a question of fact, and in deciding this question the following principle should be borne in mind: 'All circumstances which were apparent to the bystanders at the time the words were uttered should be put in evidence, so as to place the jury as much as possible in the position of such bystanders, and then it is for jury to say what; meaning such words would fairly have conveyed to their minds.' Odgers on Libel and Slander, 5th Ed., p. 111.. We should not construe the words as we would a document of title according to rules of construction of deeds and specially when the words spoken have not been proved with certainty, and we have to decide not merely whether the words are defamatory but also whether the words refer to the complainant. Applying these principles, and taking all circumstances into consideration, I am of opinion that the words complained of in the charges have not been proved to have been used with reference to each and every member of the police force, and the complainant cannot therefore be said to be a person aggrieved by the offence complained of. In my opinion the charges are not sustainable against the petitioner at the instance of the complainant.

20. In my opinion this is sufficient to dispose of the Rule; but as the matter must be placed before another Judge on account of our difference of opinion I must record my judgment as to whether the case falls under any of the exceptions to Section 499, I.P.C., assuming that the complaint is otherwise sustainable. As regards the first exception, i.e., the plea of truth, I agree with the learned Sessions Judge when he says that where the defamation imputes a crime to the complainant, and the accused plead-; justification there must be the same strictness of proof a;; on a trial for such crime. Hut in this case no crime was imputed to the complainant himself, and the persons against whom the allegations were made were not before the Court. In this case no Court would be justified in pronouncing an opinion that the allegations against persons not before it, were true without giving an opportunity to those persons to be heard. I pointed this out to the learned Counsel for the petitioner when he was submitting that the allegations were true. All that the accused could establish in the present case was that there was prima facie evidence as to the truth of the allegations and which the accused might reasonably believe to be true or, in other words, his good faith. It is contended on behalf of the Crown that the petitioner cannot urge the plea of good faith because he says he spoke only about the conduct of the constables, and all that he heard was about the conduct of the constables. If his plea that he spoke only about the constables is not accepted, the plea of good faith on his own statement is not maintainable. I do not think this contention can be accepted, as it seems to me not proper that one part of the statement of the petitioner should be rejected and the other part used as an admission of guilt. In one portion of his argument the learned standing counsel said that although the members of the police force were fluctuating the imputations might be held to be on the complainant because the men were under his control and he was at the place all along. if that be so, the petitioner may establish his good faith by giving evidence with reference to the conduct of the constables. It was however, not argued on behalf of the Crown the petitioner had no reasonable cause for believing the statements he had heard in the village and that he has not succeeded in establishing his good faith on that ground. But as the learned Sessions Judge came to a different conclusion, I think it right to record my opinion on the question. It appears to me that on the finding of the Sessions Judge himself some acts of oppression were committed there. Dealing with the matter of Gaiuddi who was alleged to have been beaten with the result that ha died, the learned Judge observes, ' Moulvi A Quadery has stated in his deposition that although he, found no marks of injury on the man and most of the people there said that the man had epilepsy, some people also were saying at the time that Gaizuddi had been beaten by constables. I am, therefore, inclined to hold that there was some kind of rough handling on him. '

21. This witness was the Deputy Superintendent of Police and he saw the man when ho was in a dying condition. He also deposed that Deputy Magistrate Babu Mani Mohan Ghose, P.W. 14, who was there also heard about this at the time. It is regrettable that none of these officers made any enquiry at that time about the allegations, which might have enabled, them to find out the truth at once. The Sessions Judge further held that there might have been some rough handling, such as catching hold of woman'; hands, pulling at their cloth, etc, I cannot agree with the Deputy Magistrate, P.W. 14, above named, that pulling women by the hands, taking away their cloth, making women naked, prodding thorn with guns, could be legally justified. It is not necessary for the purpose of this case to examine the evidence regarding the various cases dealt with by the Sessions Judge. But I think it would be right to refer to some of the cases. One Fuljan Bibi came into Court and deposed amongst other things that the nipple of her breast was bitten off. She was not asked whether she was willing to submit to an examination of her parson but was disbelieved because another witness who went to the village to make enquiries stated that the name of another woman was given to that witness as having been so maltreated. I do not think this to be satisfactory. The case of one Haju Bibi also deserves notice. She complained that she had been raped. It was alleged that there was an eyewitness, a boy of about 16 years named Noai. Noai was examined by the Deputy Magistrate several times, a rather unusual procedure. The matter was adjourned for the identification of the man. The Deputy Magistrate P.W. 14 says, ' Noai witness identified constable Mir Ahmed Ali as the ravisher. The constable was mixed up with 30 others. ' After this identification the case was dismissed. In this ease I think either the constable should have been tried for the offence alleged or the woman for bringing a false charge against an innocent man. But as I have said it is immaterial for the present case whether the stories were true or false. In my opinion, however, the petitioner had reasonable grounds for believing in the truth of the allegations made to him having regard to all the circumstances and as it is also not argued on behalf of the Crown that there were no reasonable grounds for the petitioner's belief. I hold that the case comes under the ninth exception of Section 499, I.P.C., although the language of the petitioner is otherwise objectionable. On all these grounds I would make the rule absolute and acquit the accused of the charges. I do not think it necessary to refer to some other points urged by the petitioner's counsel as in my opinion they fall within one or other of the questions I have dealt with.

Buckland, J.

22. The petitioner in this case has been tried and convicted by the Sub Divisional Magistrate of Faridpur on three charges of defamation and was sentenced under Section 500, I.P.C., to one year's simple imprisonment, these sentences to run concurrently.

23. On appeal to the Sessions Judge of Faridpur his conviction on the 3rd charge was set aside and the sentences were reduced to 6 months simple imprisonment on each of the two charges on which the conviction was upheld; these sentences also to run concurrently.

24. He has obtained a rule from this Court calling upon the District Magistrate and the complainant to show came why the conviction and the sentence passed upon him should not be set aside or such other orders passed as to this Court may seem fit.

25. The rule came on for hearing before my learned brothers Newbould and B.B. Ghose, JJ., who are equally divided in opinion. The case with the opinions of the learned Judges has been laid before me under Section 429, Criminal Procedure Code.

26. The charges in respect of which the petitioner's conviction has been upheld by the Sessions Judge are as follows:

Firstly.-That you on or about the 13th day of June 1923 at Berhamganj P.S. Sibchar, defamed the complainant by making and publishing the following imputation in your speech at) a public meeting concerning the police force employed at Char Maniar of which the complainant was a member and the principal officer in charge of the investigation to the effect that not to speak of the police only but the British Government themselves and the superior officers inducting from the District Magistrate down to the daroga and chowkidars were all beasts and pigs in their conduct, intending to harm and knowing and having reason to believe that it would harm the reputation of the said complainant and the police force employed at Char Maniar, and that you thereby committed an offence punishable under Section 500,I. P.C., and within my cognizance.

Secondly. That you on or about the 17th. day of June 1923, at Faridpur P.S. Kotwali, defamed the complainant by making and publishing in your speech at a public meeting the following imputation concerning the police force employed at Char Maniar of which the complainant was a member and the principal officer in charge of the investigation to the effect that the police force employed at Char Maniar had bitten off the nipple of the breast of a woman and had bitten the cheek of a woman nine months pregnant intending to harm and knowing and having reason to believe that such imputation will harm the reputation of the complain-ant and the police employed at Char Maniar and than you thereby committed an offence punishable under Section 500, I.P.C., and within my cognizance.

27. It has been submitted on behalf of the petitioner that these charges are defective.

28. Under Section 499, I.P.C., whoever by words...makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said to defame that person.

29. The person concerning whom the imputation is made, whom it is intended to harm in his reputation, and who in consequence is defamed is the same throughout.

30. There is confusion in these charges between the complainant and the police force at Char Maniar in relation to the various ingredients of the charge.

31. It is charged that the complainant was defamed by imputations made concerning the police force at Char Maniar, and that the reputation intended to be harmed was that of the complainant and the police force.

32. It is obvious that charges so framed do not conform to the requirements of the definition.

33. The defects seem to have originated in a failure to appreciate Excep. 2 to the section and the principles applicable when the words making the imputation appear to be general expressions; but the complaint is that they are directed against a particular individual.

34. The explanation in my opinion 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.

35. In a case in which the explanation is properly called into use the identity of the company or association or collection of persons must be maintained throughout with reference to the imputation said to have been made concerning them as such with the intention of harming their reputation so that thereby they are defamed. An imputation concerning a company or association of persons as such and the last two words of the explanation are most material to its correct application cannot by virtue of this explanation justify a charge of defaming an individual, and a charge cannot combine the explanation with the, definition for such a purpose. Nor does it carry the matter any further to state, as has been done by the charges in this case, that the complainant was a member of the police force at Char Maniar.

36. These charges seem to have assumed that the police force at Char Maniar is an association or collection of persons such as the explanation contemplates, but without expressing any definite opinion on the point, as it does not directly arise, I have considerable doubt whether such a view is correct. Aldridge v. Barrow [1907] 34 Cal. 662, which is some authority on the point, was a civil suit, but that would not appear to affect the principle (vide the observations of Fletcher Moulton, L. J., in Jones v. E. Hulton & Co. [1909] 2. K.B. 444.)

37. In this case the petitioner is charged with having defamed an individual. The imputations in the charges are general expressions assuming that they concern the complainant. This would appear to be the case notwithstanding the reference in the first to the District Magistrate and the daroga, because neither of these officers, who are capable of identification, if the investigation referred to in the charge is specified, which has not been done, is the complainant in the case. As regards the second charge, though no one is referred to by name or by reference to his office in the imputations charged, the nature of the imputations is indicative of the fact that an individual may be meant.

38. It may be that the general nature of the imputations has led to the confusion in the charges. There is no necessity for that to have occurred.

39. The cardinal rule is that the offence consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it [Per Lord Loreburn, L. C, in E. Hulton & Go, v. Jones [1910] A.C. 20]. Lord Shaw of Dumferline in his speech cited Bourke v. Warren [1826] 2 C.& P. 307 in which Abbott, C.J., said: ' The question for your consideration is whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It: is not necessary that all the world should understand the libel: it is sufficient if those, who know the plaintiff can make out, that he is the person meant. '

40. Following upon the rule so laid down it i incomes a matter of comparative indifference whether the words are general or refer to a specific individual; but lost this be taken too literally I should explain that it may be that an individual is as much defamed by words apparently only of more general application as by words us erring to him by name. The test is that formulated by the learned Judges whose observations I have quoted.

41. A very good instance of a case where defamatory matter may appear only to apply to a class of individuals, yet, if the descriptions in such matter are capable of being, by innuendo, shown to be directly applicable to any one individual of that class an action may be maintained by such individual in respect of the publication of such matter, is to be found in Le Fanu v. Malcolmson [1848] 1 H.L.C. 637. The defamatory matter is too long to be reproduced here seriatim; all that I need quote are a passage from the judgment of Lord Cottenham, L. C.: ' If a party can publish a libel so framed as to describe individuals, though not naming them, and not specifically describing them by any express form of words, but still so describing them that it is known who they are, as the jurors have found it to be here, and if those who must be acquainted with the circumstances connected with the party described may also come to the same conclusion, and may have no doubt that the writer of the libel intended to mean those individuals, it would be opening a very wide door to defamation, if parties suffering all the inconvenience of being libelled were not permitted to have that protection which the law affords. If they are so described that they are known to ail their neighbours as being the parties alluded to; and if they are able to prove to the satisfaction of a jury that the party writing the libel did intend to allude to them, it would be unfortunate to find the law in a state which would prevent the party being protected against such libels; ' and the following passage which is to be found in the judgment of Lord Campbell:

The first objection which has been relied on by the counsel for the plaintiff in error, who certainly has argued the case with his usual ability, and has brought forward all the arguments that Laming and talent could supply: the first objection is that this libel applies to a class of persons, and that therefore an individual cannot apply it to himself.

Now I am of opinion, that that is contrary to all reason, and is not supported by any authority. It may well happen that the singular number is used; and where a class is described, it may very well be that the slander refers to a particular individual. That is a matter of which evidence is to be laid before the jury, and the jurors are to determine whether, when a class is referred to, the individual who complains that the slander applied to him is, in point of fact, justified in making such complaint. That is clearly a reasonable principle, because whether a man is called by one name, or whether he is called by another, or whether he is described by a pretended description of a class to which he is known to belong, if those who look on know well who is aimed at, the very same injury is inflicted, the very same thing is in fact done as would be done if his name and Christian name were ten times repeated.

42. The confusion of ideas which these charges disclose makes it impossible for a proper trial to be held. To give but one instance the question of the relevancy of evidence will be approached from a different standpoint if tine charges stand as drawn, or if they are drawn as they should be in accordance, with the principles applicable to the case. I may even go so far as to say that there has been no trial at all of the petitioner for having defamed the complainant for a trial on these charges cannot be said to have been such a trial.

43. In the circumstances the evidence and the merits generally have not been gone into. As I appreciate the situation there should be a new trial upon charges properly drawn, and in that view I ought to express no opinion on the merits even had they been fully argued. The question is as to the form the final order should take, as to which I have now heard learned Counsel for the parties.

44. The order will be that the conviction and sentences by the Sessions Judge, Faridpur, be set aside, and I direct that the case be retried by the District Magistrate, Faridpur, or by such Subordinate Magistrate to whom he may assign the case, other than Babu A.R. Bose, Sub-Divisional Magistrate of Faridpur, before whom the previous trial was held.


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