Decided on September 17,1952



MISRA, J. - (1.) THIS application in revision arises in the following circumstance : Shri Krishna Ballabh Sahay, Revenue Minister, Government of Bihar, instituted a complaint against the petitioner, who happens to be the chief editor of a daily newspaper at Patna, known as Navarashtra, in the court of a magistrate at Hazaribagh alleging that there was a defamatory publication in that newspaper concerning the complainant which lowered him in the estimation of the public, for which the editor was liable to be punished under Section 500, Penal Code. The case was transferred from Hazaribagh to Patna under the orders of this Court and placed before Mr. S. C. Gupta, Judicial Magistrate, for trial. The trial was duly taken up, and while the complainant was under cross -examination, the defence lawyer put certain questions to the complainant in respect of his general reputation with a view to eliciting that the general reputation of the complainant was such that the petitioner committed no offence in publishing the correspondence in question respecting the case against one Zahur Ali, yarn importer, whose house at Ranchi was raided by the police on 16.5.1951. It is unnecessary to state the details of the case against Zahur Ali or the actual defamatory matter contained in the correspondence of 8.7.1951, and the correction note in regard to that correspondence published in the issue of the newspaper of 11.7.1951, because that concerns the merits of the case under trial before Mr. S. C. Gupta, Judicial Magistrate.
(2.) THE order complained of in the present petition is dated 22.7.1952, by which the learned Magistrate disposed of the application of the learned defence lawyer dated 10.7.1952, and in substance negatived his prayer that he was entitled to ask questions in general concerning the character and reputation of the complainant so as to show that it was already of such a type that the news item or correspondence complained of could not lower it further, and hence the publication by the editor did not bring him within the mischief of Section 500, Penal Code. The petitioner thereafter moved the learned Sessions Judge of Patna for making a reference to this Court for setting aside the order passed by the learned Magistrate and giving a direction that the petitioner's advocate should be permitted to carry on the cross -examination along the line he was seeking to do. The first Additional Sessions Judge of Patna, who heard the application, however, refused to make a reference on the ground that the application was directed against an interlocutory order, and as such, he was not inclined to accede to the prayer of the petitioner. He, however, made certain observations, which were more or less along the line which was followed by the learned Magistrate.
(3.) LEARNED counsel for the petitioner has raised in the present petition the points which were pressed before the learned magistrate as well. He has drawn our attention in this connection to a number of decisions, which, according to him supported his contention that in the case of a prosecution under Section 500, Penal Code, it is open to the accused person to put questions to the complainant not only with regard to his veracity or to impeach his credit, but also to show the type of reputation the complainant enjoyed in public estimation. Learned Counsel has formulated his argument in broad terms like this. Section 499, Penal Code, which defines defamation, reads as follows : "Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person is said, except in the cases hereinafter excerpted, to defame that person." This section, it is contended, makes special reference to reputation as an element to be established by the prosecutor which ran the risk of being harmed by any defamatory statement. The prosecutor, therefore, has to prove his reputation in the first instance, and as a necessary corollary it is certainly the right of the accused person to counter the existence of that reputation by necessary questions in cross -examination as also by leading evidence, if necessary. The main argument, therefore, is based upon the provisions of Section 499, Penal Code. In this connection he has invited our attention to a number of decisions, both Indian and English, and has also quoted from certain authoritative writers on this subject. The three Indian cases mainly relied upon by him are: 'Laidman v. Hearsey', 7 All 906 (A), 'Devi Dial v. King Emperor', AIR 1923 Lah 225 and 'Munnalal v. D. P. Singh', AIR 1950 All 455 . It is contended that '7 All 906 (A)' was a Division Bench ruling of that Court and Petheram, C.J., who delivered the judgment, held : "The question here is whether, with reference to these words alone, and apart from the rest of the section, Captain Hearsey intended to harm the reputation of Mr. Laidman. Before this question can be answered, it is essential to see what Mr. Laidman's reputation is, and, moreover, Mr. Ross puts the case for the prosecution on the ground that Captain Hearsey acted with a malicious intention to injure the complainant by telling a falsehood, and not with a genuine intention to furnish proper information to the public. Upon this issue, it must be material to ascertain whether Captain Hearsey, in his letter as a whole, was telling the truth or not." It is argued that it is clear from this fact that reputation became the fact in issue in the trial under Section 500, Penal Code, in terms of its definition under Section 499, Penal Code, and as such evidence concerned reputation, it was held to be admissible. It is necessary to bear, however, the facts of that case in mind in order to appreciate the worth of this contention. In that case, what the accused person, Captain Hearsey, was alleged to have done was that he wrote a letter, dated 25 -2 -1885, to the Government of India and to the Government of North West Provinces stating that on 9th of February while he was in the court of Mr. George, J., Laidman, the complainant, who was the Subordinate Judge of Dehradun and Musoorie, to give evidence in a law suit, he saw three respectable Rajput zamindars entering the court of Mr. Laidman in connection with a case in which they were interested and which had been remanded to the Subordinate Judge's Court by the High Court for rehearing and revision. The Subordinate Judge looked up and finding them there burst out into abuse in the following words : "Sooars, badmashes, haramzadas, tum hamare degree (?) high Court ko appeal kiya"; and after repeating the three obnoxious and abusive epithets, ordered them out of the court till their case was called on. As Captain Hearsey left the court, the three zamindars approached him and asked him if he had heard the Subordinate Judge abusing them. He said that he did. They complained to him of that kind of treatment and expressed their difficulty as to where they would get justice if this was the attitude and behaviour of the court which was in seisin of their case. Captain Hearsey assured them of redress, and accordingly, he brought the matter to the notice of the Government of India and the Government of the North West Provinces commenting in his letter on the conduct of the Subordinate Judge which was characterised as not only illegal and cruelly oppressive, but also ungentlemanly and cowardly in the extreme. He also referred to another specific instance of the behaviour of Mr. Laidman when he was officiating for the Superintendent of the Dun in the end of 1883 and fined a gentleman in Mussoorie a sum of Rs. 300 for saying in a privileged conversation that the Municipality were a set of pigs. He stated further that this was not an isolated case of Mr. Laidman's abusing respectable natives in his court, and when the time came, he would produce several others whom he had treated in a similar manner. The allegation in the letter of the accused in that case related not only to the particular date on which Captain Hearsey happened to be present in the Court of the complainant, but also to specific instances of his behaviour on other occasions. The prosecution case was laid not only on the ground of the accused person writing a defamatory letter against the complainant, but also on the ground that Captain Hearsey acted with a malicious intention to injure the complainant by telling a falsehood. As a matter of fact, the Hon'ble the Chief Justice appeared to hold that the questions must be confined to specific instances and not to reputation in general. Many questions were discussed in course of the argument at the Bar, but it is not necessary to refer to them specifically, as the decision was based upon the nature of the allegation in the letter complained of. It is clear from what has been stated above, that the principle of law laid down in that case will not help the petitioner in the present case, as the allegation in the correspondence complained of in this case, relates to a single instance, namely the part, if any, played by the complainant, or, at any rate, his connection with the talk dated 15.5.1951; there appears to be some error regarding this date between phone no. 126 Ranchi, alleged to be the telephone number of Zahur Ali, and phone no. 179 Patna, which is alleged to be telephone number of Shri Krishna Ballabh Sahay, Revenue Minister, Government of Bihar. There are certain allegations in the correspondence with regard to the transfer of Shri Gopi Krishna Sahay, the Sub Inspector of the anti -smuggling force, who was responsible for the raid at the house of Zahur Ali, which again arises out of the same incident. Whatever aspersions, therefore, are cast in the correspondence on the character or reputation, if any, of the complainant are confined to a particular incident which alone can be the subject matter of enquiry in the present case pending before the Judicial Magistrate. The principle of law as laid down in the Allahabad case will not apply to the facts of the present case, because there is no reference to any other incident of a similar character involving the conduct of the complainant. ;

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