- (1.) The complainant Sarajit Kumar Bose was a forest ranger having his headquarters at Bara Bazar range in the district of Purulia. Bibhuti Bhusan Dasgupta was the editor and Ram Chandra Adhikari was the printer and publisher of "Mukti" a local Bengali weekly journal with its registered office at Purulia town. At the instance of Sripati Gope, a resident of Bhuni, P. S. Patanda, District Singhbhum they published a letter in the weekly issue of Mukti dated the 4th Asar, 1388 B. S. corresponding to June 19, 1965. The letter which bore the caption "Wild law in the land of the Nags (barbarians)", contained several defamatory statements concerning Sarajit Bose. On his complaint, Sripati Gope and Bibhuti Dasgupta were charged with an offence publishable under Section 500 of the Indian Penal Code and Ram Adhikari was charged with an offence punishable under Section 501 I. P. C. They were tried jointly by Shri S. M. Chatterjee, Magistrate, First Class, Purulia. The Magistrate convicted all of them of the offences with which they were respectively charged, and passed appropriate sentences. The appeals filed by them against the order were dismissed by the Sessions Judge, Purulia. The order concerning the conviction and sentence of Sripati Gope has now become final. The two courts rejected his claim for protection under the first exception to S. 499 I. P. C. A revision petition filed by Bibhuti Dasgupta and Ram Adhikari was dismissed by the High Court. They have filed the present appeal after obtaining a certificate under Article 134 (1) (c) of the Constitution.
(2.) All the courts concurrently found that the publication was not made by the appellant in good faith for the public good and that they were not entitled to the protection of the ninth exception to S. 499 as claimed by them. Mr. Chatterjee attacked this finding. The ninth exception to S. 499 provides that "it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or any other person, or for the public good." Section 52 provides that "nothing is said to be done or believed in "good faith" which is done or believed without due care and attention." The appellants' case is that on their behalf one Dol Gobinda Chakravarty made enquiries and was satisfied about the truth of the defamatory statements. It appears that Dol Gobinda did not make any report to the appellants in writing. The enquiries made by him did not reveal that all the defamtory, imputations in the publication were true. On the materials on the record it is impossible to say that the appellants published the statements in good faith or with due care and attention. In Harbhajan Singh v. State of Punjab, 1965-3 SCR 235 = (AIR 1966 SC 97) the Court held that the accused person was entitled to the protection of the ninth exception to Section 499 if he suceeded in proving a preponderance of probability that the case was within the exception. We do not find that the courts below placed upon the appellant any heavier burden of proof.
(3.) Mr. Chatterjee next contended that the trial of Bibhuti Dasgupta was illegal as he was not personally examined under Section 342 of the Code of Criminal Procedure. To appreciate this argument it is necessary to refer to the following facts. On September 27, 1961 the Magistrate examined the complainant and issued summons to the three accused. On the application of Bibhuti Dasgupta the Magistrate passed an order on December 12, 1961, dispensing with his personal appearance and permitting him to appear by his pleader. On September 17, 1962 the examination of prosecution witnesses was concluded. On the same day Ram Adhikari was examined under Section 342. On December 21, 1962 the lawyer representing Bibhuti Dasgupta filed a petition stating that he was undergoing an operation in Calcutta and that the lawyer may be examined on his behalf under Section 342. On the same date the Magistrate allowed the application and examined his lawyer. On April 17, 1963 the Magistrate delivered judgment. The plea that the trial of Bibhuti Dasgupta was vitiated on account of his non-examination under S. 342 was not taken before the Magistrate or the Sessions Judge or at the hearing of the revision petition in the High Court. It was taken for the first time in the petition for grant of the certificate under article 134 (1) (c) in this background let us examine the contention.;