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Muhammad Gul Vs. Hazi Fazley Karim - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1929Cal346,122Ind.Cas.205
AppellantMuhammad Gul
RespondentHazi Fazley Karim
Cases ReferredEmperor v. Abdool Wadood
criminal trial - exceptions, benefit of--duty of court--criminal procedure code (act v of 1898), sections 4(h), 68--complaint, what is--verbal prayer for issue of summons--penal code (act xlv of 1860), section 499, exceptions 8, 9--defamation--good faith, determination of-accused attempting to protect himself--benefit of exceptions--charge, form of. - .....magistrate, calcutta, on 22nd march 1928. it was a petition against four persons namely the opposite party hazi fazle karim, one golam nabi, one shamsuddin and one abdur rashid. it ran in these words:the petitioner is a merchant in a leather goods and is on inimical terms with the defendants above named over a landed property in their native district in punjab. in order to bring your petitioner's party to terms the accused persons caused the petitioner to be implicated in several false cases:(1) a cocaine ease in burdwan in which the petitioner was discharged:(2) a pistol planting case in which also on enquiry it was found that the petitioner has been falsely implicated.after all these onslaughts the petitioner moved the learned d.c. detective department and he directed them to be.....

Mukerji, J.

1. The petitioner Mohammad Gul has been convicted by the third Presidency Magistrate, Northern Division, Calcutta, under Section 500, I.P.C, and sentenced to pay a fine of Rs. 100 in default to undergo rigorous imprisonment for one month, the fine to be paid to the complainant as compensation. The subject matter of the defamation was contained in a petition which the petitioner filed in the court of the Additional Chief Presidency Magistrate, Calcutta, on 22nd March 1928. It was a petition against four persons namely the opposite party Hazi Fazle Karim, one Golam Nabi, one Shamsuddin and one Abdur Rashid. It ran in these words:

The petitioner is a merchant in a leather goods and is on inimical terms with the defendants above named over a landed property in their native District in Punjab. In order to bring your petitioner's party to terms the accused persons caused the petitioner to be implicated in several false cases:

(1) A cocaine ease in Burdwan in which the petitioner was discharged:

(2) A pistol planting case in which also on enquiry it was found that the petitioner has been falsely implicated.

After all these onslaughts the petitioner moved the learned D.C. Detective Department and he directed them to be warned in the first instance. This has enraged them further more. Accused 1 is the brother of the famous goonda Mukhia who was shot dead and accused 2 is his relation. They have started again threatening the complainant and his men with bodily injury this time. The petitioner has got to go to their side of Machuabazar as he has got business connexions there. They are thus in constant danger of bodily injury or threat by their men. In fact twice they were assaulted by some people whom they can identify and police has been informed.

Under the circumstances it is prayed for that they may be warned not to molest the petitioner or his men in the first instance.

2. The whole of this petition was incorporated in the charge that was framed against the petitioner under Section 500, I.P.C. It contains a multitude of statements and it was not quite right to leave it to the accused to find out which exactly are the imputations that were intended or believed to cause harm to the reputation of the opposite party. No complaint, however, has been made before me on this ground and perhaps it was the case that all the statements were so intended or believed.

3. The rule has been issued upon three grounds: 1st, that the elements necessary to constitute the offence has not been made out; 2nd, that the petition of the opposite party upon which the case against the petitioner was started was not a complaint within the meaning of the law and Section 198, Criminal P.C., was a bar to the trial of the case; and 3rd, that the petitioner was protected by Exceps. 8 and 9 to Section 499, I.P.C. The first and the third grounds go together, while the second ground is really a combination of two grounds as will be presently seen.

4. It will be convenient to deal with the second ground first. Under the ground it is contended in the first place that the petition of the opposite party was not a complaint within the meaning of the law. This petition was filed on 5th April 1928. In it was alleged that the petitioner and others had combined together and as a result of the conspiracy the petitioner had filed the petition of 22nd March 1928, falsely implicating the opposite party in the cases and acts mentioned therein in order to disgrace the opposite party. The prayer in it was worded thus:

Under the circumstances complainant prays that your Honour would be pleased to order the D.D. Police to cause an enquiry to be made into the matter and the allegations made against the complainant and to submit the report of the same to your Honor. And, for the time being, your petitioner reserves the right of bringing a case of defamation against the accused in future.

5. I am clearly of opinion that the petition satisfies the definition of complaint as given in Section 4(h), Criminal P.C. It. contained allegation that the petitioner had committed an offence and it was made to a Magistrate with a view to his ordering a police enquiry an action under Section 155 of the Code without which action the police would not be able to take up the investigation the case being a noncognizable one. It is said under this ground, in the next place, that in the face of the prayer in the aforesaid petition in which it was expressly stated that the opposite party reserved his right to bring a case of defamation in future the trial could not take place as Section 198, Criminal P.C, would operate as a bar. On behalf of the opposite party it is pointed out that Section 198 does not bar a trial but only the cognizance of the offence specified therein and that if the petition of the opposite party dated 5th April 1928 fulfils the requirements of the definition of complaint as given in Section 4(h) the Magistrate was competent to summon the accused and go on with the trial notwithstanding the express reservation contained in the prayer in that petition. To accede to the contention of the opposite party would perhaps be to put a rather narrow meaning upon Section 198, but I do not desire to express any decided opinion on the point. It is sufficient for me to refer to the order of the Additional Chief Presidency Magistrate, dated 2nd May 1928 by which he summoned the petitioner to stand his trial under Section 500, I.P.C. This order appears to me to indicate beyond doubt that on the report of the police having been submitted the opposite party was further examined on his complaint and gave good reasons as to why there should be a trial of the case. It is, in my judgment, a perfectly fair inference to draw from the contents of the order that the opposite party at this stage orally prayed for summons on the petitioner. Under the law a verbal prayer for this purpose is sufficient. The second ground, therefore, in both its branches must be overruled.

6. As regards the first and the third grounds which I have said go together, what has to be seen is whether the petitioner is protected by the 8th or the 9th exception to Section 499, I.P.C. The question whether defamatory statements, contained in a petition before a criminal Court, on the basis of which the Court is asked to take action, should on the ground of expediency, form the subject-matter of other charges than that of defamation is one on which neither side has addressed any arguments and is therefore not one into which I need enter. As regards the exceptions the learned Magistrate in his judgment does not appear to have dealt with them. He has simply dealt with the plea of veritas and has overruled it, observing that

accused has adduced no evidence to show that the allegations are true.

7. The 8th or the 9th exception does not appear to have been considered by him at all, as they should have, even if the petitioner did not specifically rely on them provided of course that the facts gave rise to a consideration of these exceptions. Unlike a civil suit in which the Court is confined more or less to the pleadings, in a criminal case, before a conviction is recorded, it always has to be seen whether the proved or admitted facts bring the case within an exception, which takes it out of the offence, defined. The burden of proving such facts, of course, is on the accused. The question of these exceptions, therefore, requires investigation.

8. Now, what are the facts proved in the case? The petitioner 'Mahamed Gul has a business in shoes under the name of Gulzari and Co. and Kamruddin the son-in-law of one Fatehdin who is a brother of the petitioner had a separate business in cardboard vide: P.W.4 Mohamed Amin cross-examination. The opposite party Hazi Fazlay Karim also has a cardboard business and there is trade rivalry between him and Kamruddin. In an application made by the opposite party to Mr. Bird for a police warning he mentioned the fact of this trade rivalry vide: P.W.7 Fazlay Karim cross-examination. One Mahamed Khan and one Abdul Khan sold land with building to one Mohamed Amin (not P.W.4), one Golam Nabi and one Abdul Rashid. The opposite party was a witness to the kobala in respect of this transaction, and in consequence of this transaction there is litigation pending between one Fazaldin, a nephew of the petitioner and some others on the one hand, vide P.W.7 Fazlay Karim cross-examination and Abdul Eashid and Mohamed Amin (not P.W.4) and possibly other persons on the other. (vide P.W.4 Mohamed Amin cross-examination) Abdul Rashid is the son of the said Mohamed Amin (not P.W.4), and Kamruddin was formerly a partner of Golam Nabi but left the partnership about three years ago vide: P.W.4 Mohamed Amin cross-examination. That there has been some quarrel between the opposite party and the petitioner for some reason or other is abundantly clear because the opposite party has stated in his evidence:

Mr. Amir Ali went and saw Mr. Bird on my behalf but I did not instruct him. I told Mr. Amir Ali about the quarrel between myself and the accused. I made an application before Mr. Bird in which 1 mentioned about the business rivalry with Kamruddin; after the warning I made two complaints against the accused at the Jorasanko Thana.

9. It may be that the quarrel that the opposite party was referring to was the quarrel in consequence of the allegations that had been made against him by the petitioner before Mr. Bird and which were founded upon a number of entries which the petitioner had got made at the thana against him and upon the basis of which allegations the petitioner had obtained a warning order against the opposite party: vide P.W.7 Fazley Karim, examination-in-chief. Be that as it may, it is abundantly clear that while on the one hand there is a large body of evidence establishing the fact that the opposite party is quite a respectable man, there is on the other hand the undeniable fact that the petitioner was persistently charging him with conspiracy with his enemies and also threatening him in various ways.

10. The defence of Veritas has been negatived by the learned Magistrate and I think he has taken the correct view so far as that matter is concerned, but the question remains whether upon the facts established upon the evidence to which I have referred exceptions 8 and 9 or either of them protects the petitioner.

11. In dealing with these exceptions the question of good faith has to be considered. The definition of good faith in Section 52, I.P.C , it is true, does away with the presumption that the accused acted bona fide until the contrary is proved and under the Indian law the accused has to show that he has made the imputation not without due care and circumspection. But the question to what extent should he have pushed his care and circumspection is a different matter altogether. Markby, J, in the case of. In the matter of the petition of Shibo Prasad Pandah [1879] 4 Cal. 124, in dealing with the question of good faith within the meaning of the exceptions to Section 499 and in view of Section 105, Evidence Act, observed:

The law in the mofussil is apparently that which common sense seems to me to teach, namely, that in a case of this kind the Court had a right to call upon the party making the imputation to show that he has some reasonable ground for making it.

12. In the case of Emperor v. Abdool Wadood [1907] 31 Bom. 293 it has been said:

Good faith requires not, indeed, logical infallibility but due care and attention. How far erroneous actions or statements are to be imputed to want of due care and caution must, in each case, be considered with reference to the general circumstances and the capacity and intelligence of the person whose conduct is in question. It is only to be expected that the honest conclusions of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian zeal and untrained to habits of precise reasoning.

13. The Court in determining the question of good faith should, in my judgment, should have to take into account the intellectual capacity of the person, his predilections and the surrounding facts.

14. Now the following facts cannot be disputed. The two cases referred to in the petitioner's complaint of 22nd March 1928 were false cases, instituted with the object of injuring the petitioner. Then there is the fact, spoken to by the pleader P.W.6 M. Yakub who has not been disbelieved by the learned Magistrate that in connexion with a case at Sealdah. under Section 420, I.P.C. against Fazaldin, nephew of the petitioner and which case the petitioner was looking after on behalf of the said nephew, the opposite party was seen interesting himself in one Emamon, the complainant in that case. Fazaldin was acquitted in that case, the learned Magistrate observing:

The whole incident has the appearance of a faked up case intended to harass the accused by bringing him down from Rawalpindi on the off-chance of securing a conviction by false evidence. It suggests a deep-rooted hostility which has inspired this prosecution.

15. P.W.6 M. Yakub also says that Golam Nabi who is one of the other persons named as accused in the complaint of 22nd March 1928, and whose address is given in the said complaint as the same as of the opposite party, was seen at Burdwan in connexion with the cocaine case against the petitioner. Judging the case by the standard I have indicated above, these as well as the other facts which have already been stated as established on the evidence, in my judgment, may not unreasonably have created an honest belief in the mind of the petitioner about the complicity of the opposite party in a conspiracy against him, however much that belief may be unfounded in fact. I think I cannot put my conclusions in this case in better words than those used by Prinsep, J., in the case of In the matter of the Petition of Shibo Prasad Pandah [1879] 4 Cal. 124, where he said:

I have little doubt that he (the accused) acted with a desire to protect himself by an appeal to the Magistrate, rather than to injure others.

16. The rule is made absolute. The conviction and sentence are set aside. The fine, if paid, will be refunded

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