Sanatan Daw v. Dasarathi Tah

1. This appeal is by special leave under Section 417, Sub-section (3) of the Code of Criminal Procedure against an order of acquittal passed by Sri S.K. Ganguli, Presidency Magistrate, Calcutta on 16-9-1949. The appellant, Sanatan Daw was the Director and Managing Partner of the Electric Supply Co. Ltd. of Burdwan. The Respondent, Dasarathi Tah was the Editor, Printer and Publisher of a weekly Bengali paper named 'Damodar' printed and published from Birhata, in the District of Burdwan. The appellant on 24-6-1957 filed a complaint before the Additional Chief Presidency Magistrate, Calcutta against the Respondent alleging that the Respondent had defamed the Appellant by publishing in his weekly paper 'Damodar' an editorial article on 15-4-1957. The learned Additional Chief Presidency Magistrate summoned the Respondent and the case then went to trial. On 20-10-1957, Sri J. C. Chakravartti, Presidency Magistrate, who was trying the case, after examining a number of witnesses, refused to frame a charge and by his order discharged the Respondent under Section 253, Sub-section (1) of the Code of Criminal Procedure. Against this order of discharge, the High Court was moved by the Appellant in Criminal Revision Case No. 1608 of 1955 and the matter went back for further enquiry. On further enquiry a charge under Section 500 of the Indian Penal Code was framed against the Respondent by Sri S.K. Ganguli, Presidency Magistrate, to whom the case was then transferred.

2. The charge framed against the accused was with reference to various imputations concerning the Appellants Company and started with the words ‘‘बर्धमानेर बिडाई इलक्ट्रिक सप्लाय कंपनी शेष दपर्जंत’’ and ending with the words ‘‘दिडपदे अग्रसर होईते अमरा शरकार दके अनुरोध करितेसी’’ in the issue of 'Damodar' of 15-4-1955 (Exhibit 7) intending to or knowing or having reason to believe that such imputation would harm the reputation of the Company. Sri S.K. Ganguli, Presidency Magistrate, who tried the case, acquitted the Respondent on two grounds: tirst that the Respondent was fully covered by the exceptions to Section 499 of the Indian Penal Code, and secondly that he had no jurisdiction to try the case.

3. The second point arose in the following way. As regards the publication of the newspaper in Calcutta, so AS to confer jurisdiction upon a Presidency Magistrate, Calcutta to try the case, evidence was given by P. W. 10, the Appellant himself and by P. W. 6 Kanailal Kar. The learned Magistrate very rightly held that publication to the Appellant himself would be no publication within the meaning of Section 500 of the Indian Penal Code. The evidence given by P. W. 6 Kanailal Kar who could not be produced for cross-examination could not be made use of. It has been held in the case of Phani Bhusan Ghosh v. Sibakali Basu, , and in the case of Satish Chandra v. Emperor, in , that evidence unless complete by cross-examination cannot be proved. It has further been held that in a warrant case until after the framing of the charge the accused has no right to cross-examine the witness This is the view taken in the case of S.C. Mitter v. State, , and also in the case of Aurabind De v. The State, . Mitter and Sen JJ. also held that evidence before charge was inadmissible in the case of Brahmachari Ajitananda v. Anath Bandhu Dutt, . That being the position, the learned Magistrate was clearly right in not taking into consideration the evidence given in examination-in-chief by P. W. 6 Kanailal Kar. In this view he held that because there was no other evidence as to publication, he had no jurisdiction to try the case.

4. The first ground on which he based his order of acquittal was on the merits of the case. He found that the Respondent was fully covered by the exceptions to Section 499 of the Indian Penal Code.

5. The order of acquittal was impugned firstly on the ground that if the learned Magistrate had no jurisdiction to try the case, he had no jurisdiction to pass an order of acquittal. In the case of Yusafali Mulla v. The King, 53 Cal WN 850: (AIR 1949 PC 264), it was so held. As a proposition of law this submission seems to be correct, but judged from the facts of the case, this contention of Mr. Dutt cannot be upheld. Moreover, this argument by the Appellant is suicidal because if the order of acquittal was a nullity the Appellant had nothing to appeal from and his appeal will fail. An offence under Section 500 of the Indian Penal Code is to be tried as a warrant case. Charge is framed under Section 254 of the Code of Criminal Procedure when the Magistrate is of the opinion that there is ground for presuming that the accused had committed an offence triable under Chapter 21 which such Magistrate is competent to try. He then takes the plea of the accused under Section 255 of the Code of Criminal Procedure. Charge was framed in this case on 9-5-1957 when there was evidence before him of the publication of the Bengali weekly in Calcutta. Up to that time, the learned Magistrate was perfectly competent to try the case and he had rightly assumed jurisdiction to do so. The plea of the Respondent was taken and his examination under Section 342 of the Code of Criminal Procedure was held on 17-7-1957. Up to this time also he was competent to try the case. If is the allegation made in the petition of complaint that gives jurisdiction to the Magistrate to take up a case for trial. When evidence is led up to the time of framing of the charge indicating that the Magistrate had jurisdiction, the trial is to proceed. After framing of the charge the plea of the accused is taken and then under Section 256 of the Code of Criminal Procedure the defence starts. It is then that such witnesses to be examined on behalf of the prosecution as were required to be cross-examined are called. It was at this stage that it was discovered that P. W. 6 Kanailal Kar had died. The learned Magistrate after having framed a charge had to follow the procedure laid down in the several Sections of Chapter XXI. He could not then say that he had no jurisdiction to try the case and after the framing of the charge, the only course left to him was either to acquit or to convict the accused. To illustrate this point it may be stated that assuming there were several witnesses who had spoken to the publication of the weekly in Calcutta and those witnesses for some reason or other were not produced for cross-examination after the framing of the charge, then could it be said that the Magistrate had no jurisdiction to pass a final order simply because the evidence of those witnesses were not tested by cross-examination? In my view, the Magistrate in such a case could only say that the prosecution had failed to prove its case. I am accordingly of the opinion that in the present case the observation of the learned Magistrate that he had no jurisdiction was not correct. In my judgment this observation must be ignored and we should proceed to examine the correctness or otherwise of his order of acquittal on the merits of the case.

6. Several witnesses were examined on behalf of the prosecution to prove its case. On a perusal of the evidence of the witnesses, one feels at times that they were witnesses on behalf of the defence. Their evidence hardly proves the prosecution case. I will refer to the evidence of a few of them. P. W. 3 Bimal. Chandra Ghosh, a proprietor of a cinema house in Burdwan had said that the conditions of the Electric Company had considerably improved after taking over of the Company by the Government. There has been reduction in the rate also. He said that he was glad at the change over. It may be mentioned in this connection that the licence of the Company was revoked by tile Government which took over its management. This revocation was due to a number of complaints having been received against the complainant Company for which they were asked to show cause. The Government was not satisfied with the cause shown and took over the management of the Company from the Appellant. P. W. 4 Bhupendra Nath Bose, a former District Health Officer of Burdwan, has stated that after the taking over of the Company by the Government, electric supply has considerably improved, rates have also been diminished to some extent and before March 1955, that is, during the time the Appellant managed the Company, electric supply was insufficient and there was agitation in Burdwan over poor supply of electricity. In similar terms other witnesses have also given evidence. P. W. 11 Dhirendra Nath Das Gupta was an Audit Officer of the State Electricity Board of West Bengal. He was deputed to examine the conditions of the Burdwan Electric Supply Company. He examined their accounts. He found the consumption of coal by the Company, was terribly heavy and uneconomical, and that the rate per unit payable by the consumers was bound to increase. He further said that there was large number of complaints against the Burdwan Electric Supply Company from different quarters, such as, from Railways, Public, Municipality, Bar Library, Public Health Services, Newspaper concerns and so on. The Government took over the administration of the Burdwan Electric Supply Company clue to their mismanagement and inefficiency and high rate of unit charges from the consumers. There is no doubt therefore that the allegations contained in Damodar' were substantially true.

7. It has been argued that the use of the word 'Chora Karbari' by which is meant 'Black -marketing' was malicious and came within the mischief of Section 499 of the Indian Penal Code. Evidence on the point was given, apart from the evidence of the complainant himself who is P. W. 10, by P. W. 8, Radhagobinda Hati, a practising Advocate of Burdwan. According to him, the expression was not a happy one. But he did not take the expression seriously. Nor did the expression lower the complainant in his estimation. He says when a man sells at a rate higher than fair rate, he would call him a 'Chora Karbari'.--According to the complainant himself, realisation in excess is 'chora karbari.' That excess may be of either price or of rate or of anything realised. The learned Magistrate has considered the point and was of the opinion that it was an established fact from the prosecution witnesses that the Company was a most inefficient and ill-managed Company which charged the consumers at a very high rate and read in that context, the word 'Black-marketing' cannot be said to be a term used in the mala fide way, but it must be said that it has been used in an innocuous way to convey the meaning that the Company made excessive profits at the cost of the consumers. Indeed, the learned Advocate for the Appellant has laid more stress on the use of this word than on anything else. We agree with the learned Magistrate that there was no want of due care and caution in the publication of the editorial in question and its publication was made for the public good. It is a well settled rule of interpretation that where a matter is of public interest, the Court ought not to weigh any comment on it in a fine scale. Some allowance must be made on even intemperate language provided however that the writer kept himself within the bounds of substantial truth and does not misrepresent or suppress facts.

8. Now the evidence of the defence witnesses may be considered. 4 gentlemen including P. W. 1, a Member of Parliament has given evidence to say that unless shares of the Electric Company were purchased, electric connection was not given. by the Electric Supply Company, Burdwan. The learned Magistrate has accepted their evidence in toto and we see no reason to differ from his view of evidence adduced in this case.

9. We are clearly of the view that the Respondent acted in good faith and intended the publication for the good of the public.

10. The order of acquittal therefore was well merited. It will be seen from the evidence of P. W. 7 that the appellant has already filed a suit in the Original Side of the High Court and that suit is pending. That being so, we are of the view that there is not even a compelling reason for interfering with the order of acquittal which in our opinion was the proper order to pass in the case. The appeal is accordingly dismissed.

D.N. Das Gupta J.

11. I agree.