K.C. Chunder, J.
1. This is a petition of revision against an appellate decision of the Additional Sessions Judge of Midnapore setting aside the conviction and sentence of the accused opposite party and acquitting him of a charge of defamation.
2. One, Bishnupriya Choudhurani, who be karmachari or agent is the complainant in the present case, is a big zamindar of the Malihati Estate in the Midnapore District The accused opposite party Prohlad Chandra Dutta was in service under Bishnupriya Choudhurani. The accused filed a petition before the Magistrate of Midnapora making various allegations against the zemindar, her son and her officers, The learned Judge has said that these allegations contained in the document, namely the petition before the Magistrate, were, on the face of it, defamatory as they alleged robbery, extortion, wrongful confinement and other offences. It must not be taken that we are expressing any opinion whatsoever on the merits of the case. The learned Judge considered, though it is not at all clear from his judgment, that perhaps Exception 9 to Section 499, Penal Code applied and the accused was privileged under that exception, Ho has expressed his opinion in the judgment that the accused filed the petition to protect his pecuniary interest. As regards the question of good faith the learned Judge did not also direct himself properly. It is necessary for the Judge first to see whether the allegations made are of a defamatory nature. If he finds that this is so, it is for 'him next to consider which particular exception will actually apply. If he thinks that it is Exception 9 which should be applied he will decide what interest the accused was protecting by his petition to the Magistrate and he will next consider the question of good faith. In this connection he will consider whether for the protection of his interest his recourse to the Magistrate was proper and whether it was necessary or proper to make the allegations that he has made. He will also consider, in view of what is said about good faith in Section 52, Penal Code, whether the accused acted with due care and attention. It is regrettable that the learned Judge did not clearly appreciate what he had to do in the appeal with the result that we have very reluctantly to send it back for rehearing. We make it again absolutely clear that as regards the merits we are not expressing any opinion and the Judge must come to his own conclusions on the merits himself.
3. We therefore set aside the appellate 'judgment of the Additional Sessions Judge and the order of acquittal and remand the appeal for re-hearing to the Court of Session. In view of the fact that the Additional Sessions Judge has expressed his own opinion we direct that the Sessions Judge should himself hear the appeal. The rule is made absolute accordingly.
4. I agree.