1. This Rule was issued on the application of one Asutosh Das Gupta calling on the District Magistrate of Dacca and on the opposite parties to show cause why the order of the learned Sessions Judge setting aside the convictions and sentences of the opposite parties and directing a retrial should not be set aside, or why such other and further order should not be made as to this Court may seem fit and proper.
2. The facts which have given rise to this application are as follows: It appears that on the complaint of the petitioner, the opposite parties, namely, one Purna Chandra Ghose, and Satis Chandra Roy, were put upon their trial before the Deputy Magistrate at Dacca on charges under sections 500 and 501, Indian Penal Code, respectively. The trial took a very long time and at the expiration of nearly seven months, the learned Deputy Magistrate, by his judgment dated the 26th April, 1922, convicted the opposite party No. 1 under Section 500, Indian Penal Code, and sentenced him to simple imprisonment for three months and also to pay a fine of Rs. 500 in default, to undergo simple imprisonment for six months more, and he convicted the opposite party No. 2 under sections 500 and 501, Indian Penal Code, and sentenced him to pay a fine of Rs. 200, in default, to undergo simple imprisonment for three months under Section 501 and passed no separate sentence under Section 500, Indian Penal Code. The opposite parties thereupon preferred an appeal to the learned Sessions Judge of Dacca. The latter by his judgment, dated the 20th May 1922, held that there was no evidence to support a charge under Section 500, Indian Penal Code, so far as the opposite party No. 2 was concerned, and he further held that the opposite parties could not be tried together legally, and he, therefore, ordered a retrial of the opposite parties separately, that is to say, of the opposite party No. 1 under Section 500, Indian Penal Code, and of opposite party No. 2 under Section 501, Indian Penal Code.
3. The orders referred to above were made by the learned Sessions Judge under the provisions of Section 423, Criminal Procedure Code. That section enacts that the Appellate Court shall peruse the record of the appeal, and after hearing the appellant or his Pleader, if he appears, and the Public Prosecutor, if he appears, and in the case of an appeal under Section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may, in an appeal from an order, of acquittal, reverse such order and direct further enquiry, or, in an appeal from a conviction, reverse the finding and sentence, acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction, subordinate to such Appellate Court. It is not necessary for us to quote the remaining words of the section.
4. The order of the re-trial which was made by the learned Sessions Judge, in the 20th May 1922 has been attacked before us on two grounds, one, that such an order of re-trial should not have been made without giving the complainant, who had complained of having been defamed by the printing and publication, of a certain defamatory matter, an opportunity of stating what he had to say in support of the order of conviction by the Deputy Magistrate. In the second place, the order has been attacked on the ground that the learned Sessions Judge was wrong in holding that the opposite parties could not be tried together legally and in ordering a re-trial.
5. Before us a preliminary objection has been taken by Mr. Sanyal who appeared on behalf of the opposite parties to the effect that the order of the Sessions Judge being an order of acquittal, a private complainant has no locus standi whatever and ought not to be heard by us. To that a sufficient answer is to be found in the judgment of Sir Dawrence Jenkins, C.J., in the case of Faujdar Thakur v. Kasi Choudhuri 27 Ind. Cas. 186 : 42 C. 612 : 19 C.W.N. 184 : 21 C.L.J. 53 : 16 Cr.L.J. 122. We think that in a case of this description and on the facts of such as have been brought to our notice in this case a private complainant may well be heard by the High Court, when it is called upon to exercise its powers of revision. The preliminary objection, therefore, fails, and we now proceed to consider the points which have been urged before us.
6. Of the two points mentioned, the second is the real point involved in the case, but before the second point is discussed, we may observe in passing that before the learned Sessions Judge the only question for decision was whether the conviction of the. appellants was right or not, and in this view of the matter, he could only hear the parties who are mentioned in Section 423, Criminal Procedure Code. Be that as it may, as has been observed above, the second point is the real point which is involved in the case. We are indebted, to Mr. Mukherjee and to Mr. Sanyal for the very exhaustive arguments addressed to us on the question whether there should or should not have been a joint trial of the two opposite parties under Section 239, Criminal Procedure Code, on the charges which were brought against them.
7. Mr. Mukherjee has argued that the two offences, namely, the offence under Section 500 and the offence under Section 501, really form parts of one transaction, the transaction being the publication of a matter which was defamatory, and if they form parts of one transaction and if the two acts, namely, the act referred to in Section 500 and the act referred to in Section 501 form a series of acts leading to one transaction, the joint trial of the two opposite parties is entirely in order and the learned Sessions Judge had no power whatsoever to set aside the conviction and sentence passed on the opposite parties and to order a re-trial of the opposite parties; in other words, if Mr. Mukherjee is right in his contention that the accused started together for the same goal and that in the process a series of acts, although separated by intervals of time, were committed, they could legitimately have been jointly tried for those offences. For the purpose of finding out whether in this case the opposite parties could have been jointly tried, it is necessary to look into what has been found by the learned Sessions Judge. Both the opposite parties, as we have said, were charged under Section 500, Indian Penal Code, and the opposite party No. 2 was charged under Section 501. Now, so far as the charge under Section 500 is concerned, we have the findings of the learned Sessions Judge that there is really no evidence of conspiracy between the two opposite parties in other words, this finding amounts to a statement that, so far as the charge of publication of the defamatory matter is concerned, the two petitioners could not have been charged together. Therefore, the position is that, according to the learned Sessions Judge, there could have been one charge under Section 500 against the opposite party No. 1, and another under Section 501 against the opposite party No. 2. But that, for the reasons given by the Sessions Judge, no joint trial was possible. For the purpose of finding out, whether the learned Sessions Judge is right in his contention, we must examine the terms of Section 239, Criminal Procedure Code, and the illustrations to that section in order to test the soundness of the reasonings adopted by the learned Sessions Judge. Having regard to the finding of the learned Sessions Judge, we are of opinion that it is difficult to say that there is any common act with which both the opposite parties could have been linked together. There is no common factor so far as the offences alleged to have been committed by the two opposite parties are concerned Illustration (b) of Section 239 affords, on the facts of this case, and on the findings arrived at by the learned Sessions Judge to be conclusive answer to the question of the legality of the joint trial of the two opposite parties. We must proceed on the basis that, so far as the opposite party No. 1 is concerned, he is innocent of the charge of the publication of the defamatory matter. That being so, and although this case is one on the border line, taking into consideration the peculiar facts of this case, we are unable to say that the joint trial of the two opposite parties was validly held; in other words, we have come to the conclusion on a very careful consideration of the arguments that have been addressed to us that the order made by the learned Sessions Judge must be allowed to stand.
8. The result is that this Rule must be discharged.