1. This was a Rule calling on the Chief Presidency Magistrate to show cause why there should not he a farther inquiry into this case inasmuch as there was no summons under Section 500, Indian Penal Code. Process was issued under Section 506 and the trial took place under that section and the accused has been discharged for an offence under Section 500; the proceedings are, therefore, without jurisdiction.
2. The learned Magistrate in his explanation says that the issue of process under Section 5C6 was a lapses calami; he tried the case as one under Section 500 and the evidence placed before the Court was entirely evidence in support of a case under that section. But we find that at law at any rate that cannot be so, because the offence complained of as set out in the indictment is criminally intimidating the complainant on or about the 14th June 1911, in Calcutta, Section 506, Indian Penal Code, and that was the offence to which the plea of the accused ought to have been taken. Apparently, the Magistrate did not think it necessary to do so. This is also an irregularity. The law provides in summons cases that the first thing to be done is to ask the accused what he has got to say.
3. Then, as regards the trial which is said to be under Section 500, we can only say that if it was intended to be under that location, the points of law which arise in a case of defamation have been wholly ignored. The learned Magistrate says that the complainant had some ground for making the defamatory statements he did. That does not justify him in any way whatever under Section 500. It is only when a person, to whom accusation may be preferred in goad faith against another is a person who has lawful authority to deal with the subject-matter of the accusation, that the accusation is justified; and if you tell a man he is guilty of fraud, the only case in which you can plead good faith is if you made that accusation before a Court properly constituted for the purpose, and even then the onus is on the defendant to prove his good faith. There is here no question of justification. The question of good faith is entirely ignored, and merely because the Magistrate thinks that there may be some substance in the defamatory remarks he discharges the accused. This is, of course, not in accordance with law and there must be a further judicial inquiry in which the defamatory matter must be set out clearly under Section 500, Indian Penal Code, and the accused must be asked to justify it, if he can, and then be tried under that section according to law.