1. This rule raises substantial points of law and I directed that notice should be Served upon the Crown for them to appear. Mr. Sen has duly appeared and has shown t cause against the rule. In this he has been joined by Mr. Lahiri appearing on behalf of the complainant. The petitioners have been convicted of defamation. Briefly the prosecution case is that they have been making allegations on various occasions and to various persons about the chastity of the complainant's wife. The first ground upon which the rule was pressed was that the Court had no jurisdiction to take cognizance of the offence in view of the provisions of Section 198, Criminal P.C., as the person defamed was the wife and not the complainant. What the section lays down is that the complaint must be made by some person aggrieved. While it excludes complaints by busy bodies and mischief-makers, it does not say that the complaint can only be made by the person defamed. The question therefore is whether the husband is aggrieved when imputations are made upon the chastity of his wife.
2. In view of the social customs prevailing amongst the community to which the parties belong, there can be no question that the husband would suffer very serious social disadvantages on account of these imputations. I should find it very difficult to say that he was not a person aggrieved. There is how ever ample authority for, the view taken by the learned Magistrate : vide the cases in Chhotalal Lallubhai v. Nathabhai Bechar ('01) 25 Bom. 151, Gurdit Singh v. Emperor ('24) 11 A.I.R. 1924 Lah. 559 and Chellam Naidu v. Ramasami ('91) 14 Mad. 379. In Thakur Das v. Adhar Chandra ('05) 32 Cal. 425, it was held that a brother is a person aggrieved when imputations are made against the chastity of a widowed sister living with him. The case of the husband is clearly stronger. The next question is one of misjoinder. Here there is not only misjoinder of the accused persons but also misjoinder of the offences alleged. The petitioners have been tried for no fewer than six offences; but the only one in which they are alleged to have acted jointly is that referred to in the h deposition of P.W. 5. It is difficult to understand what the learned Magistrate means when he refers to these offences as being committed in course of the same transaction. For example, P.W. 2 deposes that the complainant approached him with regard to the quarrel between the parties which is alleged to have been the cause of the ill-feeling. He is related to petitioner l. He asked petitioner 2 for an explanation. Petitioner 2 then told him that the real fact was that the parties were quarrelling because of the unchaste behaviour of the complainant's wife. It is quite obvious that this incident could have had nothing whatsoever to do with petitioner 1. In the course of his explanation, the learned Magistrate refers to a conspiracy between the two petitioners. Of course, they could have been jointly tried on a charge of conspiracy; but as there is no evidence whatsoever upon which such a charge could be framed, this matter is quite irrelevant.
3. In view of this misjoinder, it is quite inevitable that there should be a retrial. Even, however, if there were no misjoinder the charge has been framed in such a way that prejudice must have been caused to the petitioners. Prejudice must have resulted with regard to at least two matters. The charge refers to no fewer than 6 incidents. There are not even separate heads for each of these incidents. They are all jumbled up together, and the petitioners have been convicted once constructively for the whole lot. It is impossible to say whether P.Ws. 2 and 4 are deposing to two incidents or the same incident. My own view is that they intended to depose to one incident only. In the absence of further examination it is, however, impossible to say whether this view is correct or not. Then again, the learned Magistrate has dealt with the question of the exceptions in lump instead of considering each incident separately. For example, according to P.W. 5, the two petitioners went together and made an imputation spontaneously without the shadow of an excuse. On the other hand, petitioner 2 is supposed to have made an imputation in giving an explanation of his conduct which was demanded by P.W. 2. Similarly, P.W. 8, who is a leader of the community, is supposed to have asked petitioner 1 for an explanation of his conduct and the imputations were made in giving the explanation so demanded. It is obvious that each incident should have been dealt with separately from this point of view. The only incident for which the petitioners could be jointly tried is that deposed to by P.W. 5. It will suffice if they are retried on that charge only. The rule is made absolute, the convictions and sentences are set aside and the fines, if paid, will be refunded. I direct that the petitioners be retried by some other Magistrate on a charge based upon the incident deposed to by P.W. 5.