1. This rule is directed against the order of Mr. K.C. Som, a Magistrate with first class powers at Howrah, whereby he acquitted the opposite party in respect of a charge under Section 500, Penal Code. It appears that the opposite party Mr. C.B.L. Bhatnagar is the editor of a newspaper called 'Musafir' and it was alleged that, in the issue of that paper which appeared on 24th November 1940, an article was published which contained a number of statements defamatory to the complainant. A complaint was filed by the petitioner on 17th December 1940, and after the issue of process the opposite party was duly placed on his trial, but was acquitted on 1st June 1942 on a finding to the effect that
the accused was not actuated by any malice, hatred or jealousy against complainant with a view to defame him, but what he did was for the benefit of at least one section of the travelling public.
2. In the first place, it may be mentioned that we do not think that the proper procedure was adopted in framing a charge against the opposite party. The charge merely contains a reference to the article contained in the 'Musafir' without drawing attention to the particular passages contained in that article which were alleged to be defamatory. In our view, in a case of this nature, the alleged precise defamatory statements on which the prosecution relies should be separately mentioned in the charge in order that the accused may know exactly what case he has to meet. Mr. Mukherjee who appears on behalf of the complainant-petitioner criticises the judgment of the learned Magistrate on the ground that the findings which it contains are not sufficient to justify an acquittal and that the learned Magistrate has not considered the case in the manner in which the provisions of Section 499, Penal Code, demand. There is no doubt that the above-mentioned article contains a number of statements which were clearly defamatory and by which the accused must have intended prima facie to harm the complainant or by using which he had reason to believe that the imputation contained in such statements would harm the reputation of the complainant. This being the case, it is clear from the terms of Section 499, Penal Code, that the opposite party should have been found guilty under Section 500, Penal Code, unless he was able to bring himself within any of the exceptions to Section 499 of the said Code. The question whether or not his case fell within any of those exceptions was not considered by the learned Magistrate and the finding on which the acquittal is based is altogether irrelevant on the question whether or not the article falls within any of the exceptions to Section 499, Penal Code.
3. In these circumstances, we think that there should be a retrial in connexion with this matter and that the order of acquittal dated 1st June 1942 should be set aside and we direct accordingly. The retrial should be held by some Magistrate other than Mr. K.C. Som, who may be deputed for this purpose by the District Magistrate of Howrah. It will proceed on the evidence which is already on the record and we direct that on the basis of the evidence which has already been recorded a proper charge should be drawn up in which those defamatory statements on which the prosecution seek to rely are specifically and separately set out. The trial will then proceed according to law from the point at which the new charge is framed and both parties will be at liberty to cross-examine those witnesses who have already been examined and to adduce such further evidence as they may consider necessary. The rule is made absolute in these terms.
4. I agree.