GOBINDA PERSHAD PANDAY Vs. GLGARTH

JUDGEMENT

(1.) THE Magistrate had before him a complaint of defamation as well as of dishonestly using a forged document under Section 471, Indian. Indian Penal Code. THE alleged forgery consisted in affixing a false signature to a letter on -which the charge of defamation proceeded. At the trial, the evidence was, no doubt, principally directed to the charge under Section 471, and it appears that, at the close of the trial, the Magistrate suddenly turned round and convicted the accused of defamation, having no charge before him of that offence. On appeal, the Sessions Judge very properly found fault with such a proceeding. He seems, however, to have followed the Magistrate into an error regarding the evidence necessary to prove the offence of defamation, for he points out that there is no evidence to show that the complainant has been injuriously affected by such alleged defamation. That, however, is not necessary to constitute an offence of defamation as defined in Section 499, Indian Penal Code. THE law requires merely that there should be an intent that the person who makes or publishes any imputation should do so intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. THE Sessions Judge, after considering the irregularity in the trial from the absence of any charge, seems to have held that it seriously prejudiced the accused so as to have in fact occasioned a failure of justice, and he also seems to have considered that the evidence on the record was not sufficient to establish that offence He, therefore, under Section 423 (b), Criminal P. C., held that he had authority to order a new trial, and he accordingly passed an order to that effect. We are inclined to think that a. 232, Criminal P. C., applies to this case rather than Section 423. It may be doubted, but on this point we express no opinion, whether an Appellate Court has under Section 423 (b) general power to order a new trial; In our opinion Section 232 applies completely to the present case, and we think that under it the Sessions Judge was competent to direct a new trial. But it remains for us, on this rule, to consider whether, under Section 232 (2), we should not order further proceedings to be stayed, because we are not shown that any valid charge could be preferred against the accused. We have heard the letter in which defamation is alleged to be contained, and we cannot find that there is anything which can reasonably be held to amount to such an offence. We therefore, direct that further proceedings be stayed.