Shiv Dayal, J. - (1.)THIS is an appeal under section 417(3) of the Code of Criminal Procedure from an order of acquittal. Bhulli Ram made a complaint against Chhotelal, Ganpat, Jeewan, Babulal and Nathuram alleging that they had made certain imputations against his character and thereby defamed him. Those imputations were contained in an application which the accused persons among others had addressed to the Mazdoor Sabha, Gwalior. The learned trial Magistrate acquitted all the accused. The basis of the complaint is the application Exh. P -1, which does not bear any date. It is addressed to the President, Mazdoor Sabha, Gwalior, and contains certain allegations against Bhola, Patiram and the complainant. We are concerned only with Bhulli Ram. About him it is alleged that he sings indecent songs in the public, is a drunkard and abuses girls and women. He has been called a goonda. As for instance on the occasion of the marriage of one Moti's son, Bhulli Ram in a state of drunkenness abused girls and women of the locality and started a row. On a perusal of the said application it is quite clear that it is defamatory per se. It has been found by the trial Magistrate that the accused signed the impugned application. He has relied on the testimony of Biharilal Saxena, handwriting expert and other witnesses and has disbelieved the defence witness, Ishwari Singh, handwriting expert, whose opinion was to the contrary.
(2.)NOW the question is whether there was a publication of the defamatory statement. The President, Mazdoor Sabha, has not been produced. Copies of this application were endorsed to the Superintendent of Police, Gwalior; Police Inspector, Gwalior; Collector Gwalior; President of Mandal (which Mandal ?) Gwalior; and President, Mazdoor Sabha, Gwalior. No one of the other five addressees was summoned either to prove that he received any such application. No other witness has been produced to prove that this application was read by him. There is no evidence on the record to show that the copies were in fact dispatched to the endorsees. The complainant did not mention in his complaint, nor in his examination -in -chief, how he procured the application in question (Exh. P -1). He stated that he had brought it from the Mazdoor Sabha. Apart from this bald statement there is nothing to show who received this application and who delivered it to the complainant and when. The address is written on a separate scrap of paper which has been pasted at the top of the sheet. It is visible, although illegible, that something had been already typed on the space where this scrap was pasted. The body of the application is typed. The address is in the handwriting of some unknown person. The complainant says that he does not know who wrote those words "Shriman Adyakash Mahodya, Mazdoor Sabha, Gwalior," although he admits that the small scrap of paper is actually pasted on the application. The complainant is unable to say what was previously written over which the scrap was pasted. It is strange enough that according to the complainant the accused signed the application (Exh. P -1) in his presence (see his cross -examination) but he says nothing as to the date, time or place. He did not say anything about it either in the complaint or in his examination -in -chief. Thus the inevitable conclusion is that the prosecution has led no evidence whatever to establish that the application actually reached the President, Mazdoor Sabha, to whom it purported, to have been addressed. Nor is it proved as to when and by whom the address at the top was pasted on the application. Nor is it proved that this application was read by anybody except the complainant. In order to sustain a conviction under section 500, Indian Penal Code, it is necessary that there must be publication. Learned counsel for the appellant lays a great deal of stress on the expression "makes or publishes" and urges that as soon as the imputation concerning the complainant was 'made' intending to harm or knowing or having reason to believe that it would harm his reputation the maker committed the offence punishable under section 500, Indian Penal Code. The gist of the offence of defamation lays in the dissemination of the harmful imputation. When a defamatory statement is published, it is not only the publisher, but also the maker, who becomes, responsible and it is in that context that the word "makes" is used in section 499, Indian Penal Code. It is of the essence that in order to constitute the offence of defamation it must be communicated to a third person because what is intended by the imputation is to arouse the hostility of others. If a person merely writes defamatory words and keeps the writing with himself, the offence is not made out. Likewise, if the libeler merely communicates the libel to the person defamed it does not constitute an offence under the said section although it may amount to an insult and may be punishable as such. The question whether the libel in fact has been communicated to a third person is material. It is not enough that the libeler posted it to a third person. The English law is different.
In the absence of any evidence showing the publication of the imputation contained in the application in question, the order of acquittal must be maintained. The appeal is dismissed. I agree.