Govind Prasad Panday v. The Empress, On The Prosecution Of G.L Garth Opposite Party.

The Magistrate had before him a complaint of defamation as well as of dishonestly using a forged document under sec. 471, I.P.C 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 sec. 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 proceedings. 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 sec. 499, I.P.C 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 thereupon under sec. 423(b), Cr. 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 sec. 232, Cr. P.C applies to this case rather than sec. 423. It may be doubted, but on this point we express no opinion, whether an Appellate Court has under sec. 423(b) general power to order a new trial. In our opinion, sec. 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 sec. 232(2), we should not order further proceeding 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 the 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.

H.P.C

Ride made absolute; farther proceedings stayed.