1. This was a rule calling upon the District Magistrate and on the opposite party, the complainant Bhagirath Shaha, to show cause why the conviction and sentence of the petitioner should not be set aside on tile two grounds, first, that the complainant was not the person who was aggrieved, within the meaning of Section 198, Cr. P.C., and, secondly, that the statement made by the petitioner to his pleader, Baba Dwijendra Nath Roy, was Covered by Section 499, exception 9, Indian Penal Code.
2. The opposite party has shown cause, and we have heard the learned Vakils on both sides, and our attention was drawn to the judgment of the Court below and to some portions of the evidence.
3. It appears that the petitioner bad been accused in a former case, under Section 506, I.P.C., for criminal intimidation. His defence in that case was that it arose out of some unpleasantness or scandal which related to the alleged elopement of the daughter-in-law of complainant in this case. The charge of defamation in the present case relates to at statement made, in the course of a conversation, by the petitioner to Babu Dwijendra Nath Roy his pleader, immediately after the termination of the proceedings under Section 506 I.P.C. The place where this conversation took place was under a banian tree, outside the Court house, a spot resorted to by legal practitioners and their clients. The learned Magistrate says that the pleader is entirely worthy of credit. The pleader has, in his evidence, stated that he asked the petitioner, in his ordinary voice in conversation what was the real cause of the trouble which had given rise to the case under Section 506, I.P.C. The petitioner, in answer, replied, also in his usual voice (i.e., as in ordinary personal conversation), that which he took as his defence before the Court, namely, that the trouble arose out of a particular alleged elopement. It appears that a mukhtear, who was engaged on the side of the opposite party, happened to overhear what was said.
4. On these facts, we are not prepared to hold that the statement made by the petitioner comes within the definition of defamation in Section 499, I.P.C., because we are not satisfied that he made any imputation with the intention of harming the reputation of any body. He made it clearly in answer to a very natural question put to him by his legal adviser at a time when the relationship of legal adviser and client cannot be said to have ceased. We do not think it necessary, in these circumstances, to decide the two precise points raised.
5. We, therefore, set aside the conviction and sentence, make the rule absolute, and direct that the fine, if paid, be refunded.