R.L Narasimham, C.J:— This is a petition in revision against an order of discharge under Section 253(2) of the Cr PC passed by Sri B. Mohanty, Magistrate, First Class, Cuttack, in a case under S. 500 I.P.C brought by the petitioner against the opposite party.
2. The material facts are as follows: In village Kamala Prasad Patna, near Olsingh in Khurda Sub-division there is a religious endowment with considerable properties attached to it. The petitioner has been claiming the endowment to be a purely private rebgious endowment and, as such, not subject to the provisions of the Orissa Hindu Religious Endowments Act, but some of the villagers including the opposite party have been agitating for a long time for the control of the said endowment by the Endowments Commissioner on the ground that if was a public endowment. The petitioner on the 12th January 1949 applied to the Commissioner under Section 64 of the Orissa Hindu Religious Endowments Act 1939 (Orissa Act IV of 1939) (hereinafter referred to as the old Act), for a declaration that it was a private endowment outside the scope of the Act. That application was numbered as O.A No. 48 of 1948-1949, but for some reason or other which it is unnecessary to describe in detail, it remained pending for several years. In the meantime the Orissa Hindu Religious Endowments Act, 1951 (Orissa Act II of 1952) (hereinafter referred to as the new Act) came into force on 1-1-1955; and the application filed by the petitioner under S. 64 of the old Act was transferred to the file of the Assistant Commissioner of Endowments who continued the enquiry under S. 41 of the new Act.
3. The opposite party, however thought that the protracted delay in completing that enquiry was due to the machinations of the petitioner and hence, sometime in February 1956 he sent a written application on behalf of the public to the Minister for law in Orissa, alleging several acts of waste, misappropriation, etc., against the petitioner pointing out the inordinate delay in the disposal of the proceeding before the Assistant Commissioner, and requesting the Minister to intervene and arrange for the speedy disposal of the same. The Secretary to the Government of Orissa in the Law Department, on 2-4-1956, sent a copy of that application to the Commissioner of Hindu Religious Endowments, Orissa. The Commissioner granted a certified copy of that copy to the petitioner on proper application. Armed with this certified copy, the petitioner Bled a criminal complaint of defamation against the opposite party alleging that in the latter's application to the Law Minister he had grossly defamed the petitioner, by describing him as a ‘profligate’ and charging him with mismanagement and breach of trust of the properties of the endowment. The Sub-divisional Magistrate, Sadar Cuttack summoned the opposite party under S. 500 I.P.C and transferred the case to the file of Sri B. Mohanty, Magistrate 1 Class for disposal. When the trial commenced the petitioner as the complainant sought the assistance of the Court to obtain the original application from the Law Department of Government, but the Deputy Secretary of that Department claimed privilege for the original under Sections 123 and 124 of the Evidence Act.
4. The learned Magistrate seems to have upheld this contention and then observed that, in the absence of the original application the charge of defamation must necessarily fail inasmuch as the petitioner has not succeeded in affirmatively establishing that it was the opposite party who sent such an application to the Government. He therefore discharged the opposite party under Section 253(2) of the Cr PC on 5-10-1956.
5. It is necessary at this stage to describe some further events which were not known to the trying Magistrate. While the criminal case of defamation was pending in the Court of the Magistrate, the petitioner applied to this Court under Article 226 of the Constitution making some allegations against the manner in which the Assistant Commissioner of Endowments was conducting the enquiry under S. 41 of the new Act, and asking for appropriate reliefs. That application was registered as O.J.C No. 280 of 1956, on 6-6-1956, but after hearing the parties this Court by its order dated 21-8-1956 declined to interfere at that interlocutory stage.
6. After the dismissal of this application under Article 226 of the Constitution, the Assistant Commissioner in due course completed the enquiry under S. 41 of the new Act and declared the Endowment to be a public endowment. The petitioner went up on appeal to the Commissioner of Hindu Religious Endowments who substantially upheld the order of the Assistant Commissioner, but declared the endowment to be a temple and not a math, and further declared the status of the petitioner to be that of a hereditary trustee. A second appeal to this Court against his decision under S. 44(2) of the new Act is reported to be pending.
7. The main question that arises now for consideration is whether, bearing in mind the previous litigation between the parties and the events that happened subsequent to the discharge of the accused under Section 253(2) of the Cr PC it is desirable to allow the criminal case of defamation to be re-agitated. It is true that the question as to whether the state Government were justified in claiming privilege for the original application filed by the opposite party before the Minister for Law, has not yet been determined.
8. But I must express my surprise that the Government after having sent a copy of that application to the Endowments Commissioner without marking it confidential, and after coming to know that the office of the Endowments Commissioner had granted a certified copy of the same to the petitioner should now claim privilege for the document. The contents of that document are now well known to everybody, and a copy of it has been enclosed with the petition of complaint under S. 500 I.P.C filed by the petitioner before the Magistrate. It is however, unnecessary to decide this question of privilege here because, for the reasons to be given sub-sequently, I am not satisfied that even if the plea of privilege raised by the state Government is rejected, this is a fit case to be further fought out in the criminal Court.
9. I may now reproduce substantially the main allegations contained in that application. The applicant Raghunath Singh (opposite party) representing the public of the locality brought to the notice of the Honourable Minister for Law the history of the endowment and alleged that it was a public endowment and that the public had a right of worship of the deity installed in the premises. He further stated that during the time of the founder the endowment was managed very well and that the petitioner who succeeded him in 1943 also managed it properly for some years. But later on he began to mismanage the institution on account of his “profligate and unpopular habits.”
10. The applicant further alleged that the petitioner fraudulently transferred some of the properties of the endowment to his own natural father. He then referred to the attempts made by the Endowments Department to exercise some sort of control over the management of the institution by the petitioner; and the starting of a case under S. 64 of the old Act (O.A 48 of 1948-1949), at the instance of the petitioner who claimed the endowment to be his private property. He then alleged that through the influence of the petitioner and his legal advisers the proceeding was delayed under various pretexts, by seeking long adjournments and creating various other circuitous and misconstrued technical troubles calculated to circumvent the fair course of trial.
11. He drew the special attention of the minister to the fact that proceeding had been pending for more than six years, thereby making it difficult for the public (who opposed the petitioner) to fight out the case before the Assistant Commissioner of Endowment. The application ended with the following prayer:
“The members of the public therefore most humbly and respectfully pray that the Commissioner of Endowment be departmentally instructed in the interest of the public of a welfare state to act strictly in the spirit of an administrative tribunal being the creature of delegated legislation, maintaining throughout the principles of equality before law, and make speedy arrangements to dispose of the proceeding without further delay so that the administration of the math would be brought under the direct supervision and control of the state Government and save the members of the public from unnecessary harassment financially and for which act of kindness to the public, as in duty, bound shall ever pray”.
12. On reading the aforesaid application as a whole, without unduly emphasising any stray passage here or there, I am satisfied that the sole object of the opposite party in sending the application to the Minister for Law was to draw his attention to the inordinate delay in the disposal of the proceeding before the Assistant Endowment Commissioner and to seek his help in getting it disposed of as expeditiously as possible. Doubtless to make his application self contained he thought it necessary to refer to the history of the endowment, how it was properly managed by the founder and how, during the time of the petitioner mismanagement had crept in and how according to the impression created in the mind of the applicant, the delay in the disposal of the proceeding was due to the dilatory tactics adopted by the petitioner taking advantage of the technicalities of Law.
13. It is true that the allegations about mismanagement by the petitioner were expressly made profit gate and of unpopular habits, have been expressly made in the application, but they appear to have been made mainly with a view to state exhaustively the fact as known to the applicant, and not for the purpose of defaming the petitioner. In the prayer portion which has been quoted above, the minister was not asked to take steps to remove the petitioner from the management of the institution; all that was prayed for was that the proceeding before the Assistant Endowments Commissioner should be disposed of without further delay and that the institution should be brought under the control of the Endowments Department.
14. This significant omission to expressly pray for the removal of the petitioner from his position as administrator of the endowment gives a key to the intention and knowledge with which the application was drafted and sent to the Minister for Law. Under these circumstances it appears to me that (i) the offence of defamation as defined in S. 499 I.P.C is not made out at all and (ii) even if such an offence is made out the Eighth Exception to that Section may prima facie apply.
15. Mr. B.M Patnaik on behalf of the petitioner urged that this was not the stage to examine whether the said Exception would apply, and that by virtue of Section 105 of the Evidence Act it must be left to the accused during trial to adduce evidence to show that his action would come within the terms of that Exception. According to Mr. Patnaik the imputations against the petitioner were grossly defamatory and hence a prima facie case under S. 500 f. P.C was established against the opposite party and he must be placed on trial and then left to adduce evidence so as to bring the case within the Eighth Exception to S. 499 I.P.C I am unable to accept such an extreme contention.
16. It is true that by virtue of Section 105 of the Evidence Act the Court is bound to presume the absence of circumstances which would bring the offence within any of the special Exceptions contained in S. 499 I.P.C and the burden would primarily rest on the accused to show that Exception applied. But it is well known that the burden cast on the accused in a criminal case, by virtue of Section 105 of the Evidence Act, is not so onerous as the primary burden cast on the prosecution to prove the offence beyond reasonable doubt.
17. If, therefore, on a careful review of the circumstances under which the complaint was made and the other events which have come to light it appears to the Court that one of the Exceptions to section 499, I.P.C may possibly apply, the accused may be held to have discharged his burden. Moreover the essence of the offence of defamation, as given in section 499, I.P.C is that the imputation must have been made either with the intention of causing harm, or knowing or having reason to believe that such imputation would cause harm to a person. In judging whether the applicant (opposite party) had such intention or knowledge, the circumstances under which the main object with which the application was sent including the prayer asked for from the Minister, and the background of the dispute between the parties before the Endowment Department, should all be considered. If, after a careful consideration of all these facts it does not appear that the accused had the necessary intention or knowledge it will not be proper to place him on trial for an offence under section 500 I.P.C
18. It is well settled that where some passages in a petition are alleged to be defamatory, the document should be read as a whole, with a view to find out the main purport, and too much importance should not be attached to a few ??? passages here here and there. I may refer to Cassem Kurrim v. Jonas Hadjee Seedick, 9 Cal WN 195 where though some passages in a circular letter issued by the accused were found to be objectionable, yet the Court held that it was not a fit case for a criminal court to take action under section 500, I.P.C I may quote the following observations (at page 198):
“Then, with reference to the point which has been strongly insisted on behalf of the respondent, that the letter goes beyond the limits of ordinary privilege, we feel that we must look upon the letter as a whole. If it is looked upon as a whole the particular passage which is objected to really appears as a statement of the reason which induced, the writer to make the request that he does”.
19. In the present case also the allegations of pro-fligacy and mismanagement against the petitioner were made by way of a historical summing up of the administration of the religious endowment in question, ever since it was founded during the time of the grandfather of the petitioner. The opposite party was keen on impressing on the Minister the public nature of the endowment and the urgent necessity for the speedy disposal of the proceeding before the Assistant Endowments Commissioner, so that it may come under the control of the Endowments Department for the purpose of better management.
20. It was then contended that the Minister for Law was not a person having lawful authority over the Assistant Commissioner of Hindu Religious Endowments and that, consequently, the Eighth Exception to S. 499 I.P.C would not apply. This argument also does not appear to be correct. In Rama Krushna Padhy v. Ramesh Chandra Das, A.H.O No. 10 of 1958: (AIR 1959 Orissa 98) a Division Bench of this Court discussed the nature of the functions of the Commissioner and the Assistant Commissioner of Hindu Religious Endowments, Orissa, and held that in respect of certain functions under the new Act they are ‘courts’ whereas in respect of some other matters, they function merely as administrative officers subject to the control of the Government.
21. It is not denied that the Commissioner and the Assistant Commissioner, are subject to the administrative control of the Law Department of the State Government. An ordinary villager cannot be expected to know the fine distinction between the statutory and judicial functions of the Commissioner or the Assistant Commissioner of Endowments, in respect of which they are not subject to the control of the Government and their administrative functions while exercising which they are under the control of the State Government.
22. The impression amongst the general public is that the Minister in charge, of the Law Department could, by interfering in a proper manner, expedite the disposal of matters pending before these officers. If, under such an impression, the opposite party, being exasperated by the inordinate delay of six years and believing in good faith that the delay was due to the tactics adopted by the petitioner asked the Minister in charge of the Department to intervene, I do not think it will be proper to prosecute him in the Criminal Court, even if some of the stray passages in the application are unhappily worded and are, perhaps irrelevant.
23. It was then urged that there was no good faith in the conduct of the opposite party and that the allegations in his application were made recklessly. It is true that ‘good faith’ for the purpose of the Indian Penal Code requires ‘due care and attention’.
24. But there can be no fixed standard as to what is ??? on the intelligence of the accused, the circumstances under which he is placed, and the occasion which necessitated his making the imputation: See Yadali v. Gaya Singh*, AIR 1929 Cal 779. The very fact that ultimately the Endowments Commissioner held the institution to be a public endowment would show that the opposite party's main allegation to the effect that the institution was a public institution was made in good faith. Doubdess, the Commissioner's decision is now pending in second appeal before this Court. But whatever may be the result of that appeal, the good faith of the opposite party is well-established by the result of the decision of the Endowments Commissioner.
25. It cannot also be denied that the delay of six years in disposing of the application under S. 41 of the new Act might reasonably have created an impression in the mind of the opposite party that the delay was due to the dilatory tactics adopted by the petitioner. For the purpose of this revision it is unnecessary to examine whether the delay was due to circumstances beyond the control of either party, or whether it was due to some other cause.
26. We should consider the impression that might reasonably have been created in the mind of a villager under those circumstances and not what were the true reasons for the delay. It is also unnecessary to consider whether it was proper on the part of the Law Department to have sent a copy of the application of the opposite party, to the Endowment Commissioner knowing fully well that it dealt with matters which were then sub judice before the Assistant Commissioner of Endowments in a Judicial enquiry under S. 41 of the new Act. Neitiier the Endowments Commissioner nor the parties asked us to examine this question and we do not therefore feel called upon to say anything about it here. But the question as to whether the opposite party should now be placed on trial for the offence of defamation, stands on a different footing and should not be finked up with the propriety or otherwise of the aforesaid action of the Law Department.
27. The parties are already fighting out the main dispute in the second appeal pending before this Court against the decision of the Endowments Commissioner. If the petitioner feels aggrieved because of some of the passages in the application of the opposite party before the Minister for Law, it is always open to him to sue him in the Civil Court for damages, if he is so advised. But, in my opinion, this is not a fit case in which the machinery of the criminal Court should be used any further, especially as more than two and a half years have elapsed since the date of the commission of the alleged offence. I would therefore reject this petition.
Das, J.:— I agree.
D.H.Z
28. Petition dismissed.