Promotho Nath Mukhopadhya v. King-Emperor .

The dissentient judgments of Newbould and Suhrawardy, JJ., were as follows:—

Newbould, J.:— Promotha Nath Mukhapadhya and Ramendra Nath Ghose have both been convicted of defamation punishable under sec. 500, I.P.C by the Third Presidency Magistrate of Calcutta. The former has been sentenced to pay a fine of Rs. 500 or in default of payment to undergo three months' simple imprisonment and has appealed to this Court. On the latter a non-appealable sentence of Rs. 50 fine with one month's simple imprisonment in default has been passed and he has obtained a Rule against the conviction and sentence and this Rule has been heard with the appeal.

The complainant in this case is Mr. F.W Kidd, Deputy Commissioner of Police, South District, Calcutta. Promotha Nath Mukhapadhya is the Editor and Ramendra Nath Ghose, the Printer and Publisher of a daily newspaper called the Servant. The charges framed and found to have been established against the accused relate to certain allegations against the complainant published in the issues of this paper, dated 20th and 23rd January 1922. Two charges were framed in which were set out the statements in each issue said to be defamatory. Those set out in the first charge were (a) “That a lady of 40 named Sm. Hem Nalini Ghose was severely assaulted from behind by a European Officer reported to be Mr. Kidd,” (b) “That gentlemen present report that Mr. Kidd dealt the deadly assault on the lady.” Those set out in the second charge were (a) “He (Mr. Kidd) hit her (Hem Nalini) on the top of the head from behind,” (b) “Kidd went up to her (Hem Nalini) and struck her (Hem Nalini) on the head from behind,” (c) “Mr. Kidd hit a woman on the head.”

That these statements are on the face of them defamatory cannot be disputed. Nor do the accused deny their responsibility for the publication of these statements. On behalf of the second accused the point was taken that as printer he should have been charged with an offence punishable under sec. 501, I.P.C and that this being a separate offence the joint trial of the two accused was illegal. Even if a separate charge had been framed under this section there would have been no illegality in the joint trial. But Ex. 6, the signed declaration of the second accused shows that he was publisher as well as printer and this evidence is unrebutted. The main lines of defence taken before us were based on the first and ninth Exceptions to sec. 499 of the Indian Penal Code. Reliance was also placed on the general Exception in sec. 79 and Exp. 4 to sec. 499, I.P.C

The first Exception to sec. 499, I.P.C declares that it is not defamation to impute any thing which is true concerning any person if it be for the public good that the imputation should be made and published. For the prosecution it was not contended that the publication would not be justified if the facts stated were true. Whether the imputation contained in the statements contained in the charge is true or not is the most important issue in the case. The facts that are admitted and the different stories of the prosecution and the defence are fully set out in the judgment of the lower Court and it is not necessary for me to repeat them. The learned Magistrate has held that the defence has failed, since if Hem Nalini the injured woman had been the complainant and Mr. Kidd the accused in a case brought for assault, Mr. Kidd would be given the benefit of the doubt. I agree that the plea of Veritas set up by the defence fails but after an examination and careful consideration of the whole evidence I have no hesitation in coming to a positive finding that Mr. Kidd did not strike the blow that caused the wound on Hem Nalini's head. The case for the defence is greatly weakened by the omission in the accused's written statement of any plea that the imputation was true. This was no bar to the plea being argued after evidence had been given in support of it. But having regard to the fact that the written statement was filed on the 20th May when practically the whole of the evidence on both sides had been given and also to the absence of any explanation of the failure to take this plea it is hard to resist the conclusion that at that time the accused's legal advisers took the same view of their case on this point that I do, namely, that it had entirely failed. The principal difficulty in the way of the defence is the evidence of Hem Nalini herself. She has deposed that she was struck near the place where the central meeting was held at the time when the ladies got up to go and that the weapon used was a policeman's baton. On all these points she contradicts the defence story of the occurrence which is that she was struck at a place about 50 ft. to the south-west of the place of meeting, that it happened some little time after the ladies had gone from the place of meeting and the weapon used was a cane carried by Mr. Kidd which is about twice the length of a policeman's baton but much lighter. The person who was actually struck was not likely to be mistaken on all these three points but if Hem Nalini is correct on any one of these the whole case for the defence breaks down on this main issue. Having regard to the admitted facts that Hem Nalini received an injury on the head and that Mr. Kidd was beating people with a cane it is not surprising that the rumour should have started that he caused this injury. The youngmen present were greatly excited and there would be little difficulty in getting witnesses from among them to support the story published by the accused. A comparison of the evidence of the alleged eye-witnesses and their statements at different times fully supports the contention of the learned Standing Counsel that the story has been altered from time to time to try and make it agree with facts that could not be disputed. The last version of the story was that Mr. Kidd struck the woman not deliberately but in the course of indiscriminate hitting and mistaking her for a man. But even this contention fails. Apart from the other reasons for distrusting the defence witnesses it is significant that none of them speak of Mr. Kidd raising his stick to strike people on the head except when he struck Hem Nalini. Mr. Kidd has expressly denied that he ever struck any one on the head with his stick. I am unable to share the difficulty felt by the trying Magistrate in acting upon Mr. Kidd'a testimony “with the same confidence as he is entitled to by his position and standing.” I do not attach the same importance to his omission to mention that he had struck any one when he was partially examined on the 17th February. Nothing really turns on the mistake he made as to the position of the mosque and his first wrong impression that the wounded person was a boy and he has given reasonable explanations of these errors. As regards the so-called confusion of a palm tree and cocoanut tree, Mr. Kidd's botany is correct. In argument before us Mr. Kidd's conduct has been severely commented on because he made no enquiry to find out who assaulted the woman. But there is no evidence that there was no such enquiry made and obviously Mr. Kidd who was the accused would have been the last person to hold such an enquiry. He has also been attacked because he rendered no aid to the wounded person. This seems unfair when the evidence shows that offers of assistance from the police were rejected with insult. It is also said that there was no justification for using force since the illegal meeting had come to an end when the ladies left the place. But it was on their departure that the control they had exercised came to an end. The Police were confronted with an unruly mob. But in this case the conduct of the police is not the important issue nor is it necessary to decide who actually wounded Hem Nalini. We are only concerned with the truth or falsity of the allegation that Mr. Kidd wounded her and I have no hesitation in holding that this allegation is absolutely false. This finding disposes of the plea based on the first Exception to sec. 499, I.P.C

The ninth Exception to this section has now to be considered. This exempts from criminal liability an imputation made in good faith for the public good. The learned pleader for the accused relied on the decision of this Court in the case of In the matter of Shibo Prosad Pandah (1) and some later cases of other High Courts in India following this ruling. The principle there laid down is stated in the head note as follows: “In dealing with the question of good faith the proper point to be decided is not whether the allegations put forward by the accused in support of the defamation are in substance true but whether he was informed and had good reason after due care and attention to believe that such allegations were true.” The learned Standing Counsel on behalf of the Crown accepted this principle in its entirety but urged that the accused had failed to show due care and attention as a basis of their alleged belief of the defamatory statements. Here again if we refer to the written statement of the principal accused, we find that a very weak case is set out. He admits the necessity for enquiry before publication of the first information that reached him. He then goes on to say that he deputed two representatives of his Press to make enquiries and that he published the information on the basis of their reports and a bulletin received from the Congress Publicity Board. But he refuses to disclose the names of the representative on whose reports he relied. But sec. 105 of the Evidence Act throws the burden of proving the applicability of the ninth Exception on the accused. They cannot therefore escape their criminal liability by relying on professional etiquette though they may minimise the moral stigma of a conviction. The evidence adduced at the trial was certainly insufficient to discharge this burden. Narendra Nath Sett (D.W 14), a vakil of this Court, has deposed that be advised the first accused to verify the news before publication and that on this advice one person was sent to the hospital to see the wounded lady herself and another to the South Congress Office. But no evidence has been given to show that reports or that any reports were received before the story of Mr. Kidd assaulting this lady was published. It is urged that the report itself shows by intrinsic evidence that a reporter was sent to the hospital. Even if he were, his report could not have confirmed the story that the wound was caused by Mr. Kidd. Nor can I see why the volunteers should be considered more credible because they repeated before the Congress Board the story which the Editor hesitated to believe when it was told by them at his office. The enquiry held by Mr. J.M Sen Gupta is relied on as justifying the publication of the statements which form the subject of the second charge. He held this enquiry as the representative of a body whose declared policy was to disobey a lawful police regulation. It was ex parte enquiry and the statements there made were not sufficient authority to justify the contradiction of the Government communique. An ingenuous remark of one of the defence witnesses Nirode Bandhu Guha (D.W 10) reveals the true object of this enquiry. I quote his own words, “The enquiry of Mr. Sen Gupta was made with a view to publish in the papers that Mr. Kidd had assaulted the woman.” On this issue I am in full agreement with the trying Magistrate that there was an entire absence of due care and caution and hold that the plea of good faith entirely fails.

I fail to see how any case can be made out under the general Exception of sec. 79, I.P.C when the plea under the ninth Exception to sec. 499, I.P.C has failed, since “good faith” must be proved in either case. Nor can the defence based on explanation 4 to sec. 499, I.P.C be supported after my finding that the plea under the first Exception to that section has entirely failed.

I would therefore dismiss this appeal and discharge this Rule.

Suhrawardy, J.—The accused in the appeal and in the connected Revision case stand convicted by the Third Presidency Magistrate of Calcutta under sec. 500, I.P.C; the accused Promotha Nath Mukerjee has been sentenced to a fine of Rs. 500, in default to simple imprisonment for three months and the accused Ramendra Nath Ghosh to a fine of Rs. 50 in default to simple imprisonment for one month. The first accused has appealed and the second accused has obtained a Rule, against their conviction. The two accused were the editor and printer and publisher respectively of a daily English newspaper called “Servant.” They were charged under two heads for publishing statements containing libel against Mr. P.W Kidd, a Deputy Commissioner of the Calcutta Police, in two issues of the newspaper. The first head of the charge is that they committed an offence under sec. 500, I.P.C by publishing in the issue of “Servant” of 20th January 1922, “the following imputation concerning the said Mr. Kidd, to wit (a) that a lady of 40 named Sm. Hem Nalini Ghosh was severely assaulted from behind by a European Officer reported to be Mr. Kidd, (b) that gentlemen present report that Mr. Kidd dealt this deadly assault on the lady, intending to harm or knowing or having reason to believe that such imputations would harm the reputation of Mr. F.W Kidd, etc.” The second head is that they committed the above offence by making and publishing in the issue of the said paper of the 23rd January 1922 “the following imputation concerning the said Mr. Kidd, to wit that (a) he (Mr. Kidd) hit her (Hem Nalini) on the top of her head from behind, (b) Kidd went up to her (Hem Nalini) and struck her (Hem Nalini) on the head from behind” and (c) “Mr. Kidd hit a woman on the head.” The accused have been convicted on both the heads and sentenced as above.

The admitted facts of the case are that on 20th November 1921, the Commissioner of the Calcutta Police issued a notification prohibiting the holding of meetings within his jurisdiction for a period of three months. In violation of that notification meetings were held previous to the date of occurrence by persons belonging to the political party of the accused in other parts of Calcutta and dispersed by the Police. On the 19th January 1922, a similar meeting was intended to be held in Harish Park in Bhowanipur but the Police having guarded the place the venue was changed to a plot of vacant land to the north-west of Mr. C.R Das's house and on the west of the Russa Road. When the meeting was being held the Police at Harish Park getting scent of it, Assistant Commissioner Kunja Behari Mukerjee, Sub-Inspector Hem Chandra Lahiri and Inspector Puma Chandra Mukerjee with one or two other Indian Police Officers and several constables arrived at the meeting at about 4-15 p.m They found that about a dozen ladies were seated in the middle surrounded by a number of youngmen known as “volunteers” with a ring of spectators round them. The Police Officers first tried to separate the volunteers and the ladies from the outer group by wedging in a ring of Policemen between them. They then told the ladies among whom was Sm. Urmilla Devi, sister of Mr. C.R Das, who virtually regulated the meeting, that the volunteers and they could not hold the meeting against Police orders. No heed was paid to the warning, and as each youngman got up to read a speech he was arrested by the Police. When about 20 of such men were arrested and kept within a cordon of constables and about half-an-hour after the arrival of the Police, Mr. Kidd appeared on the scene. Before the arrival of Mr. Kidd the Police did not use any force beyond pushing the crowd back (P.W 7 Assistant Commissioner Kunja Behary, p. 13 of the paper-book). He began to push back the outer group of the spectators and shortly after the meeting broke up with a shout. “The ladies formed a sort of procession and surrounded by the volunteers proceeded eastward to the Russa Road. Mr. Kidd ran after them and ordered the Police present to separate the volunteers from the ladies. The volunteers were partly dispersed. Mr. Kidd pushed them, drove them and struck some of them with a leather mounted thick cane (Ex. 1) that he was carrying.” I quote this from the Magistrate's judgment.

The case for the prosecution is that Mr. Kidd went with the ladies a short distance, came back to the pavement, then went towards the north as some stones were being thrown from that direction, came again to the road side and from there noticed a group of people numbering 20 to 30 on the south-west of the place of the meeting near a cocoanut or palm tree as Mr. Kidd describes it. Thinking that another meeting was being held there he asked Sub-Inspector Hem Lahiri to go and disperse it. The Sub-Inspector went there and found a woman lying on the ground wounded on the head and bleeding with a number of volunteers and spectators stooping over her. He came back to Mr. Kidd and reported that a woman was lying injured. Mr. Kidd did not understand him to say that it was a woman. He personally went to the spot and found somebody lying there injured whom he took for a boy. It is said that the volunteers refused Police help, treated the injured person with ice and subsequently secured a taxi cab and removed her to the Sambhunath Pandit Hospital. It is admitted that she was unconscious when removed to the Hospital (Ex. 2, p. 73). I have given the main facts of the case and will deal with the defence version of the occurrence and other admitted facts of the case when considering the pleas of the accused.

The accused have filed a written statement in which they admit the making and publishing the statements and imputations stated in the charge but plead good faith and privilege. The learned vakil for the accused has urged several points before us of which two demand serious consideration. I will deal with the other points at the end of my judgment. He has chiefly relied on Exceptions I and IX to sec. 409, I.P.C He first contends that the imputations alleged to be defamatory were true, or in other words, that in fact Mr. Kidd did strike the woman and cause the injury on her head. He has taken what is technically known as the plea of Veritas. He next submits that whether the imputations were true or not, his clients made and published them in good faith and in either case for public good.

I shall deal with the first plea first the defence having admitted the publication of the defamatory statements, it is conceded, and that is the law, that the onus is on it to prove their truth. The accused in their written statements (which I may remark were filed after the entire evidence in the case both for the prosecution and the defence was concluded) does not specifically and pointedly take the plea that the imputations were true. But it is urged by the learned Advocate for the defence that as the cross-examination of the witnesses for the prosecution and the evidence led by the defence were directed towards establishing the truth of the imputations, we ought in law and justice to consider the plea; and decisions have been cited to show that where in a criminal case the evidence adduced establishes the innocence of the accused on a ground not taken by him, the Court ought to give effect to it. It is not incumbent on me to accept any such general rule but considering the importance of the case in which conduct and reputation of a responsible Police Officer are involved, I propose to examine the evidence bearing on this point. The learned Magistrate has also tried this issue and devoted a considerable portion of his able and exhaustive judgment to a consideration of the evidence on this question. Besides, Exception I to sec. 499, I.P.C, may be taken to be covered by Exception IX to that section for if the truth of the libellous matter is established, the good faith of the maker cannot further be questioned, if of course the publication is made for the public good. The accused are therefore entitled to prove good faith either by shewing that the imputations were true or that they did not act carelessly and negligently in believing them to be true.

As the prosecution chose to advance evidence first in anticipation of the defence, I propose to discuss that evidence before considering that for the defence. In examining the evidence for the prosecution two points strike me markedly which, to my mind, should have been cleared but were allowed to remain unexplained.

The first is that no explanation was offered nor was any suggestion made either in the evidence for the prosecution or in the cross-examination of the defence witnesses as to how the woman, Hem Nalini, came by her injuries. It is admitted that the people assembled at the meeting carried no weapon and offered no resistance. P.W 7 Mr. Kunja Behary says—“They did not resist arrest and were saying ‘come arrest us.’ There was no demonstration of force on the side of the people assembled, only the crowd was pressing forward, as is usual when there is a large gathering.” It may therefore be safely presumed, and that is the suggestion of the prosecution, that it was some Policemen who had struck the woman, but no attempt was made to find out the assailant. Sub-Inspector Hem Lahiri's evidence, if believed, read with that of Mr. Kidd, is to the effect that the Sub-Inspector informed Mr. Kidd that a Bengali Police Officer had struck the woman. It is strange that Mr. Kidd being a superior Police Officer and receiving information that a woman was severely assaulted, probably by a subordinate of his, did not think it worth his while to enquire into the matter either on the spot or ever afterwards and to find out the real culprit, as any such discovery would have completely exonerated him and given a complete quietus to the defence contention. Mr. Kidd is quite positive on the point. He says: “I have not tried to find out who assaulted the woman. If it is proved that another man is the culprit I am exculpated. I should like to know who the culprit was and it has always been my desire. I enquired from Hem Lahiri as to what he knew about this occurrence, but not definitely upon the point. I have received no information from anybody as to who assaulted the woman. Hem Lahiri said that he had reason to believe that a Bengali Police Officer had struck the woman. I took no steps to find out whether there was anything in the suggestion or not.” One should have expected otherwise from a Police Officer of the rank and position of Mr. Kidd.

The other point which presents itself is closely connected with the preceding one. It is that no enquiry was made by Mr. Kidd or any other Police Officer into the case of the injured woman. Mr. Kidd and Kunja Babu offer an explanation for this apparent indifference by saying that as it was a non-cognizable case no enquiry was instituted. I regret that the explanation does not commend itself to me. Mr. Kidd and Hem Babu found a person whether a boy or a woman lying unconscious with a wound on the head and bleeding. How could they on the spot decide that it was a non-cognizable case? In fact Mr. Kidd says that he did not enquire whether the wound was serious or not or whether the person was likely to the or not. He adds that he did not think it his duty to make any further enquiry. I regret I am unable to agree with him. Kunja Babu frankly admits that he assumed that it was a non-cognizable case. He says in cross-examination: “I made no enquiries in this particular matter because there was no complaint at the Thana and Ave generally do not enquire into non-cognizable cases. I assumed that it was a non-cognizable case. I gave no orders for any enquiry to be made. To my knowledge nothing has been done in regard to the assault on this lady.” The explanation does not seem to me to be satisfactory. I now pass on to consider the evidence adduced in the case by the prosecution. As regards the occurrence six witnesses have been examined, three of whom, the complainant, Assistant Commissioner Kunja Behary and Rub-Inspector Hem Chandra, are Police witnesses. The other three, S.M Kassim, Satyendra Mohun Roy and Madhuri. Mohun Mukerji, are outside witnesses said to be present at the time. The evidence of the Police witnesses is, as it is expected to be, merely negative. As I have observed, it does not offer any explanation or suggestion about the assault on the woman. It is not necessary that it should, but it contains certain internal indications of not being quite straightforward which led the Magistrate to cast suspicion on portions of it. I will take those points in the order in which they have come out.

(1) It is admitted by the prosecution that the complainant, after the dispersal of the meeting, used his stick and struck several boys. Kunja Babu says—“I saw him strike 2-3 boys with his hand and cane throughout the whole time. I think he kicked one boy; this is the boy on the western footpath.” Witness No. 8 Kassim says—“I saw Mr. Kidd actually hitting one boy. I saw him rush towards people who fled on seeing him rush. I saw Mr. Kidd strike the boy from behind and the stroke fell on the boy's leg. Besides Mr. Kidd I did not see any other Police Officer striking all the time that I was there. I saw Mr. Kidd rushing at the outer edge of the crowd and hitting out with his stick but it fell on the empty air as the people moved away on seeing him.” To the same effect is the evidence of witness No. 9 who says that he saw the complainant strike one or two men and also make a rush at the people. All the prosecution witnesses speak in the same vein but the complainant himself did not say a word in his examination-in-chief about his striking any one or using his stick on that occasion. He no doubt said something to that effect when he was recalled after the examination of the above witnesses but the learned Magistrate rightly doubts that the omission was merely accidental and I agree with him. (2) The mistake made by the complainant that the person injured was a boy. Hem Babu says that he told Mr. Kidd that a woman was injured. Kunja Babu was near by and he heard him say so, but Mr. Kidd somehow carried the wrong impression that it was a boy, although it appears that on the following morning the Officers collected at Alipore and discussed the incident. Even in the report he submitted to the Government afterwards he stuck to the story that it was a boy. This error and the omission noticed in the preceding paragraph render the case open to the construction that the complainant tried at the outset to create an impression that he did not strike any one at the meeting and if he did, he never hit a woman. These undesirable ??? understandings have led the learned Magistrate to remark that he could not act upon Mr. Kidd's testimony with such confidence as was due to his position and standing.

(3) The introduction of the name of Sergeant Sullivan in the case. The complainant knew that the case for the defence was that he was the only European Officer present at the meeting (vide Ex. 3, the statement of Urmilla Devi published in the issue of the “Servant” of the 23rd January), yet when he was examined on the 17th February he makes no mention of the presence of any other European besides himself. On the 6th March all the other prosecution witnesses speaking to the occurrence were examined-in-chief in the following order:—Assistant Commissioner Kunja Behari, S.M Kassim, Satyendra Mohun Ray, Madhuri Mohun Mukerji and Sub-Inspector Hem Chandra Lahiri. None of the witnesses preceding Hem Babu spoke of the presence of Sullivan or of any oilier European Officer at the time of the occurrence. It is the Sub-Inspector Hem Lahiri who first introduced Sullivan in the opening sentence of his examination-in-chief. The Police witnesses took up the cue and in their cross-examination which came some days later spoke of the presence of Sullivan from the time of the arrival of the Police on the scene. Kunja Babu makes curious statements regarding Sullivan. In his examination-in-chief on the 6th March he says—“The two Inspectors assisted me and Mr. Kidd supervised. There was no European there at the time. Pour Sergeants came about 10 to 15 minutes afterwards.” He was recalled on the 23rd March ostensibly for the purpose of asking him about Sullivan. He then said that Sullivan was at the meeting from before the arrival of Mr. Kidd but this fact had escaped his memory until he read the statements of some other witnesses in the papers. In cross examination he made the following statement—“I was specifically asked by the Public Prosecutor if there was any other European Officer at that time and I definitely stated that there was none until 4 Sergeants arrived.” Within a week of the meeting, and before the institution of the present case, a joint statement was prepared by Kunja Babu and Hem Babu and strangely enough Sullivan was totally ignored at the time. With reference to this matter, the only remark that can be made is that it does no credit to the prosecution or help in presenting its case as ungarbed truth. I may add that this Sergeant Sullivan has not been put in the box to support this portion of the prosecution story.

(4) Sab-Inspector Hem Lahiri says that the persons surrounding the injured woman told him that it was a Bengali Police Officer who had struck the woman and he said so to Mr. Kidd. Assistant Commissioner Kunja Behari in whose presence the information about the injured person was conveyed to Mr. Kidd by Hem Babu does not speak to this conversation. Mr. Kidd himself does not mention a Bengali Police Officer in his examination-in-chief though he improves upon the story in his cross-examination after the examination of Hem Lahiri. The only other witness who speaks about it is Satyendra on whose evidence I will comment later. It was consistently the story of the defence from the beginning that it was an European who committed the assault as is evident from the statements published in the “Servant” of the 20th January. I feel no hesitation in holding that this story has no foundation on fact. It is worthy of note that the officers met at Alipore the following morning and discussed the incident, at which meeting it may be presumed, that, if it was a fact, it must have been mentioned that the “volunteers” themselves had accused a Bengali Police Officer with hitting the woman. But in the Government communique (Ex. 2, p. 73) which was based on Mr. Kidd's report, no mention is made of this important fact; on the other hand, it is stated there that so far as Mr. Kidd saw, no member of Police force struck any woman.

In discussing the above points I have generally commented on the evidence of the Police Officers. Of the other three prosecution witnesses to the occurrence said to be bystanders, the learned Magistrate has rightly pronounced the witness Madhuri Mohun Mukerjee as unreliable and unworthy of belief. I entertain no better opinion of the witness Satyendra Mohun Ray. He was a chance witness and the reason he gives for his presence at the meeting is not satisfactory. His story is that he was told by a broker that a plot of land near the Kalighat Tramway Depot was for sale by the Improvement Trust and he went there alone to inspect it without knowing where it was. Not being able to identify it, he went to Hem Babu, an old friend of his, at the Tollygunj Thana, to obtain some information about it where he found the Sub-Inspector proceeding to Kalighat with the Assistant Commissioner in a car. He followed on foot. He witnessed all that happened at the meeting. He heard Mr. Kidd forbid the people (to hold the meeting) himself and through other Police Officers but they paid no heed. Mr. Kidd does not say so. He again found Mr. Kidd allow all persons to go who wanted to accompany the ladies and did not obstruct them. Mr. Kidd's version is that he was trying to separate the volunteers from the ladies. He got no chance to talk to Lahiri on the ground and went home by tram, and then he adds in the same breath that he met Lahiri on the road near the Russa Bioscope. He did not know the plot of land up till the day he was examined in Court nor did he make any further enquiry about it from the broker or the Improvement Trust. He even does not know the name and address of the broker. I cannot put any reliance on a witness like this. The production of such evidence mars a good cause and excites suspicion where it ought not to exist.

The only witness who may be fairly treated as independent is S.M Kassim. During the 15 or 20 minutes that he was there he found Mr. Kidd striking the outer edge of the group. He saw him strike a boy and run towards the maidan and scatter the crowd. He saw him thus for 5 minutes and then went away. He does not speak of seeing injured person; so the incident must have happened after he had left. His evidence does not carry the complainant's case far and the defence does not challenge it as it does not militate against its case, rather, in its view, supports it.

I now turn to the evidence for the defence as far as it relates to the point under consideration. The accused have examined 5 eye-witnesses, Nos. 6, 7, 9, 11 and 12, to prove their case that the assault on the woman was committed by the complainant. Had the case rested on the evidence of these witnesses, I should have felt considerable difficulty in rejecting the whole of this evidence in view of the flaws in the complainant's case which I have pointed out, but it seems to me that the case for the defence has been given away by the injured woman. In the statement (Ex. 17.) she made to the Assistant Commissioner on the day following the day of occurrence, she said that a Sahib was dispersing the crowd and when the other ladies stood up she also stood up when some one struck her on the head with a lathi. The summary of her evidence in Court is this. She received a hurt on the head with a black lathi like thing, a little over a cubit in length. The stroke fell on her head from behind. Looking at Ex. 1 (the stick Mr. Kidd was carrying) she said that the stick with which she was struck might have been like that, but blacker. She was shown a Policeman's baton (Ex. 2), and she said, “The thing with which I was struck was just this thing.” Attempt was made in examination to improve matters, but it created more confusion. The suggestion of the defence was, as it is here, that the woman became dazed after the blow on her head and could not really notice the weapon. But she said in re-examination that she saw the stick when she turned round to see after the blow. If she saw the stick, she must have noticed the striker, but she concluded that the person who struck was a Sahib, because she saw the Sahib by her side with a stick. In her statement to the Assistant Commissioner (Ex. 17) she says that she could not say who had assaulted her. She further said in her examination in Court that as she was getting up, she got the blow and fell down at the spot. She is more explicit in her statement, Ex. 17. There she said, “The Sahib began dispersing the people, then Mr. C.E Das's wife, daughter and sister stood up. I also stood up. At this time some one struck me from behind with a stick or lathi on my head. I reeled and fell and some people held me.” This story is totally inconsistent with the version of the affair given by the other witnesses for the defence, which is that when the ladies had left the place of the meeting and reached Russa Road, Mr. Kidd followed them beating people up to Russa Road; then he came back from the pavement beating people all the way and as this woman was going towards Rup Chand Mukherjee's Street, he struck her on the head with a stick. The learned vakil for the defence asks us to hold that the woman, as the result of the blow, got dazed and confused and could take no notice of her surroundings. He therefore invites us to hold that the story given by the witnesses is a true narration of facts. That may or may not be, but it is difficult to discard the version of the chief actor in the tragedy. The learned Magistrate has rightly observed that if Mr. Kidd were the accused in an assault case, with the woman as the complainant, it would not be possible to convict him on the evidence adduced in this case.

The conclusion at which I have arrived is that the accused have failed to substantiate beyond doubt the plea of Veritas and the exemption claimed under Exception I, therefore, fails. But though I hold, in the state of the evidence in this case, that the defence has not succeeded in establishing the truth of the charge, I confess that I entirely agree in the observation of the learned Magistrate that the net result of the evidence on either side is that it is very doubtful whether Mr. Kidd hit the woman and that even if the complainant is not entirely absolved of the charge, he is entitled to the benefit of doubt.

The next question that demands consideration, and which in my opinion is the most important, is whether the imputations were made for the public good in good faith under the 9th Exception to sec. 499, I.P.C It is conceded that if the imputations were made in good faith they must, considering the position of the accused, be taken to have been made for the public good. The question then remains, have the accused shown that they acted with good faith in making and publishing the statements mentioned in the charge?

“Good faith” has been negatively defined in sec. 52, I.P.C as—“Nothing is said to be done in good faith which is done or believed without due care and attention.” The learned vakil for the accused argues that even if he does not succeed in establishing the truth of the allegations, he is entitled to show that his clients were “informed and had good reason after due care and attention to believe that such allegations were true” and reliance was placed for this proposition on the case of In the matter of Shibo Prosad Pandah and other cases in different High Courts following the above case. The cases do not lay down any new rule of law different from that contained in the 9th Exception to sec. 499 read with sec. 52 of the Penal Code. Sec. 79 of the Penal Code does not limit or expand the defence available under the 9th Exception; and it seems to me that section does not apply to a case where the Code expressly provides similar ground of exoneration in respect of a particular offence. In a case of defamation the accused has to establish good faith, if he pleads it, as any other fact and the question whether he committed a mistake of fact or law does not arise. sec. 105 of the Evidence Act, 1872, lays the burden on the accused to prove that they acted in the matter with due care and attention, but when evidence is adduced on both sides the question of onus loses its importance.

I now turn to the evidence in the case. I have discussed at some length the evidence on the first issue as, in my judgment, it has considerable bearing on the question under consideration. If the imputation conveyed by the defamatory statements were entirely unwarranted, the Court would jealously and stringently scrutinize the evidence of good faith; but where circumstances existed casting suspicion on the absolute innocence of the prosecutor, it seems to me that stringency would be relaxed on production of sufficient evidence to strengthen that suspicion.

The case for the defence is that some volunteers of the Congress Committee shortly after the meeting came to the office of the newspaper and reported the incident to the accused naming the complainant as the assailant. Babu Narendra Nath Sett, a vakil of the High Court, happened to be present at the time. The first accused asked his advice as to whether he could publish it in his paper. Narendra Babu advised him to make further enquiries and he sent a representative to the Hospital and another to the office of the Calcutta South Congress Committee. The latter interviewed the Assistant Secretary of the Congress Committee who referred him to the report submitted by the former to the Congress Publicity Board. The reporters brought certain information to the accused who also obtained a copy of the above report or “bulletin.” In these circumstances the accused plead that they honestly believed in the truth of the report and published it in the paper.

I will first deal with the imputations made in the issue of the paper of the 20th January. The learned Magistrate is of opinion that he is “not satisfied that the editor made any enquiry worth the name which would show his good faith before rushing into print and publishing the report received from the volunteer boys and the Congress Publicity Board, if any.” He has not indicated what further enquiry the editor should have made in order to justify himself for publishing the report, beyond observing that he should have made a personal enquiry from the complainant himself. The learned Standing Counsel has also laid stress on the failure of the Editor to appeal to Mr. Kidd, for information.

If it is attempted to lay down as a rule of law that a person before publishing defamatory statements should, even as a matter of prudence, seek information as to the truth of the imputations from the person against whom they are made, I regret I cannot persuade myself to be a party to laying down any such dangerous doctrine. I fail to perceive that the position of the person defamed should make any difference, for however highly placed a person may be, he may not be above human frailties. The contrary view would make the 9th Exception to sec. 499 superflous. For if the person against whom the imputation is to be made admits the truth of it, protection is given by the first Exception: if, on the other hand, he denies the truth of it, the defamer will not be entitled to plead good faith under the 9th Exception under any circumstances.

The learned Standing Counsel has argued with great vehemence that the accused should not have believed in the information supplied to him by the Congress volunteers or the report submitted to the Publicity Board and that he acted without due care and attention in placing such trust. In order to determine whether the accused was justified in believing the truth of the reports one has to place oneself in the place of the accused and survey the situation from his stand-point. It may be true that a disinterested listener outside the fold of the party will consider it prudent to institute further investigation into the truth of the accusation or even disbelieve the informants, but a person professing the same political or religious creed as that of his informants may honestly take a different view. The Court in determining whether the accused should or should not have placed implicit reliance on the credibility of his source of information should not in my opinion place before itself the standard which it would demand to convince it of the trustworthiness of the persons supplying the information. It should take into account the mental attitude of the person, his prejudices and predilections and the surroundings in which he is placed. This view is supported by the case of Emperor v. Abdool Wadood Ahmed (2) following Bhawoo Jiraji v. Mulji Dayal (3). The learned Judges there observe, “Good faith under this 9th Exception requires not logical infallibility but due care and attention. But how far erroneous actions or statements are to be imputed to want of due care and caution must in each case be considered with reference to the general circumstance and the capacity and intelligence of the person whose conduct is in question. It is only to be expected that the honest conclusions of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian zeal and untrained to habits of precise reasoning.” It is conceivable that there may be mutual confidence or a code of honour even among criminals.

The accused belong to the same political party and profess the same political faith as their informers. According to their estimation they are following a course which is commendable and does not attach to itself ignominy or moral obloquy. I am not aware that the profession of a particular political or religious belief, not inconsistent with accepted ideas of moral decency, necessarily imports dishonesty of purpose or detracts from the trustworthiness of a person holding such belief. You may abhor his faith but not necessarily his character. The accused say that they received certain information from their reporters. It is true that those reporters have not been examined because, it is said, it is a breach of etiquette for the editor of a paper to divulge his sources of information, but whatever information the editor may have received, it was confirmed and strengthened by a copy of the report which was submitted by the Congress Committee to their Publicity Board and which, it is evident, came into the hands of the editor. It being the official document of his party it can hardly be said that it was an error of judgment on his part to believe in its accuracy. That this report, with slight verbal alterations, was published in the issue of the paper of the 20th January is borne out by the evidence of defence witness No. 15, Assistant Secretary to the Congress Committee. I do not agree with the Magistrate in thinking that this witness was a made-up one for he is a responsible officer of the organisation through whose hands the report may have, in the ordinary course of business, passed, though he was not the writer of it. The accused have been charged with publishing defamatory statements contained in this report. To a person situated as the accused editor was, the report bore intrinsic evidence of infallibility. Its veracity was further augumented by a report of the statement of witnesses recorded by Mr. J.M Sen Gupta, Barrister-at-Law and published in the issue of the 23rd January. It began with the statement of Urmilla Devi, a lady of high respectibility and position, who spoke to every incident that happened on that day except the actual assault. She, however, within a few minutes of the occurrence received information that a woman was assaulted, after she had left, by a European Officer and according to her Mr. Kidd was the only European Officer on the spot. She further saw that the woman was carried on a taxi unconscious and bleeding. This evidence was supplemented by three eyewitnesses, young men working in the Congress cause. I am not called upon in this cape to consider whether this evidence or that which has been produced in Court is sufficient to convict the complainant of the assault. I have held it is not. I have only to consider whether it was sufficient to produce in the mind of the accused, circumstanced as he was, a reasonable belief in the accuracy of its information. I cannot hold that the above circumstances coupled with the remarkable apathy of the Police to which I have all ready adverted and the further fact that the complainant was the only European Officer on the spot, which I believe to be true, using his stick, I take it for a lawful purpose, did not afford a reasonable ground to the accused to believe that the statements he published were true. I am therefore of opinion that the accused have succeeded in establishing their plea of good faith in publishing the imputations.

I think it proper to refer to an observation made by the learned Magistrate which finds place in two places in his judgment and on which he seems to have laid great stress. I refer to the passages in his judgment in which he charges the defence with change of front in that the case of the defence originally was that the assault on the woman by the complainant was deliberate; whereas in Court the case was changed into one of indiscriminate assault. This is what he says:—“This charge of indiscriminate assault has been sprung up and developed in the course of the trial of the case. In the original publications, which I have quoted and which form the basis of this case, that charge is that Mr. Kidd deliberately and brutally hit the woman from behind. This was the first report that the ‘Servant’ received and published. The statements of some witnesses about this not being deliberate act and being in the course indiscriminate and wanton assault came much later on.” I wonder what led the learned Magistrate to fall into this error. It appears that in the statements published on the 20th and 23rd January it is said that the complainant was assaulting people indiscriminately and “right and left” (see pp. 72, 75 and 76 of the paper-book, Ex. 1 and Ex. 3). At p. 87 it reads that a witness in reply to a question put by Mr. Surendra Nath Mullick at a non-official enquiry said, “I think it was a random blow not particularly meant for the lady.”

It having been found that the imputations made in the issue of the 20th January were made in good faith, it will follow that those published in the issue of the 23rd January were similarly made. In fact between the 20th and 23rd January the accused obtained further materials to strengthen their conviction, viz., the statements of witnesses recorded by Mr. J.M Sen Gupta (D.W 13) which, the witness admits, were published in the newspaper but he did not go through them line by line.

I now refer to two other minor points urged by the learned vakil for the accused.

(1) He also claims protection under Exception IV to sec. 499, I.P.C on the ground that as it was well known that Mr. Kidd was in the habit of striking people in such meetings, the imputations charged did not lower his character in the eye of the public. I do not think there is any substance in this argument. It is not proved that Mr. Kidd had such wide notoriety or that the public had formed such estimate of his character. In fact the prosecution has adduced sufficient evidence to prove that the imputations were calculated to harm the complainant's reputation.

(2) It is also argued that the conviction of the second accused under sec. 500, I.P.C is wrong inasmuch as he is a printer and as such, if the offence is proved, should be convicted under sec. 501, I.P.C The second accused was charged as printer and publisher and he does not deny that he was a publisher also. Besides, alteration of the section of the Code will not materially help the accused nor vitiate their joint trial.

In the above view of the case, I am of opinion that the charge fails and both the accused should be acquitted.

[The two Hon'ble Judges of the Division Bench having differed in their judgments, the case was referred to the Hon'ble Mr. Justice Rankin.]

Babus Dasarathi Sanyal, Narendra Kumar Bosc, Samarendra Kumar Dutt, Hemendra Nath Bose, Bon Behari Sarkar, Lalit Mohon Sanyal, Satindra Nath Roy Chowdhury and Asita Ranjan Ghosh for the Appellant.

Babus Dasarathi Sanyal, Samarendra Nath Dutt, Hemendra Nath Bose and Bon Behari Sarkar in Revision No. 677 of 1922.

Mr. B.L Mitter, Standing Counsel (with Rai Tarak Nath Sadhu Bahadur) for the Crown in both the appeal and the Revision.

The Judgment of the Court was as follows:—

In my opinion this case must be disposed of on the footing that there has not been a compliance by the Magistrate with the provisions of sec. 342 of the Criminal Procedure Code.

According to the order sheet the accused were properly called upon to plead. That was on the 14th March 1922 and at that time they stated that they pleaded not guilty and also that they would both file written statements. The duty of the Magistrate under sec. 342 is not in question at that stage. It arises when the witnesses for the prosecution have been examined, cross-examined and re-examined and according to the order sheet that process was completed on the 12th April 1922, on which date the case was adjourned until the 25th for the purpose of the accused entering on their defence. It is quite clear that the promise to file written statements made at the time of the plea in no way exonerates or exempts the Court from examining the accused at a later stage as required by sec. 342. There is no minute in the order sheet to the effect that on the 12th April or on the 25th April anything purporting to be an examination of the accused took place, nor is there any indication of the questions put and the answers obtained upon such examination. It appears from the report made by the Magistrate that at the close of the prosecution case he had discussions with the learned Counsel for the defence as to the number and nature of the witnesses the accused were going to call. It also appears from the Magistrate's report that he always understood, and so far as he now remembers he was told, that the accused would file the written statements promised by them. In these circumstances the Magistrate has said in his report, “it will thus be seen that I did examine the accused and give them the fullest opportunity to make their statements. And they did so in their written statements filed on the 20th May 1922, when not only had the prosecution witnesses been cross-examined and re-examined but also their own defence been, finished.”

Now, the first question which I have to address myself to is the question whether there has been a compliance with the section. In this country it often happens that a prisoner is tried in a language which for one reason or another he understands but indifferently well and for that reason as well as for other equally grave reasons the intention of the statute is that at a certain stage in the case, the Court itself shall put aside all Counsel, all pleaders, all witnesses, all representatives, and shall call upon an individual accused with the authority of the Court's own voice to take advantage of the opportunity which then arises to state in his own way anything which he may be desirous of stating. In the case of an accused who is in no difficulty in understanding the proceedings, a question addressed to his Counsel in his hearing and answered by his Counsel in his hearing may perhaps be taken in certain circumstances as a compliance with the section. It is not a full compliance with the section, but I say nothing whatever to create any more trouble than is absolutely necessary in any case of that character. What is necessary is that the accused shall be brought free to face solemnly with on opportunity given to him to make a statement from his place in the dock in order that the Court may have the advantage of hearing his defence if he is willing to make one with his own lips. Now, I cannot think that the fact that there was a discuss on with Counsel about the number and nature of the witnesses is the same thing at all as what the section requires. It is important also to have regard to the time at which this examination took place. In the deeded cases it has been pointed ort that to ask an accused for his defence before he has the whole of the prosecution evidence in front of him, is not a compliance with the section. In my opinion to ask the accused not at the beginning of his defence but later on when his statements may be subject to heavy discount owing to the evidence given in his hearing by his own witnesses in the meantime, that is not to be assumed to be a substantial compliance with the requirements of the section. In the present case I have an instance not on the side of the accused but on the side of the complainant of this very matter and it is a very good illustration because in this case much difficulty has been caused and much criticism has been made because the complainant whose examination was not finished till after the other witnesses for the prosecution had been examined had introduced matters the value of which might have been taken quite differently if they had been introduced at the earliest possible opportunity. In like manner an accused who is only given an opportunity to state his deforce after the witnesses called by himself have been examined and cross-examined may not be in as good a position as if he had been invited to make his defence at the proper time and before these ??? were heard. The fact ??? were asked to ??? in my opinion is of no great moment for this purpose. There is all the difference in the world between a written statement presumably prepared, almost certainly revised, by the lawyers appearing for the defence and a statement made by the accused himself, so that the Magistrate can observe his demeanour and his manner while the makes it and come to his conclusions as to the value of his evidence. In tins country an accused is not allowed to give evidence on his own behalf and, in view ox this sec. 342, is of cardinal importance. I say these things not because I am desirous of introducing any new technicalities or any new difficulties as regards procedure in the lower Courts. I quite appreciate that the Stipendiary Magistrates in the City of Calcutta have to get through a mass of important and difficult work and that some slips are not only natural but inevitable. At the same time the question whether a non-compliance with sec. 342 is fatal to the proceedings is a question as to which I am not prepared, sitting as I now am, to call into question the decision given in the case of Mazahur Ali… v. King-Emperor (4). The importance of that case is that the learned Chief Justice distinctly stated this:“On the merits, as far as I can see, there is nothing to be said in support of this application, but these are the words of the section which, in my judgment, expressly provide that the Magistrate shall question the accused generally on the case at a certain stage in the proceedings.” It is no doubt arguable that the words of the section are mandatory, but that it does not follow that every non-compliance is more than an irregularity. In the present case on the facts it is also argued with great plausibility that if it is a proper question to entertain whether or not these accused have suffered any prejudice, the answer should be in the negative. It seems to me highly undesirable that the ruling in the case of Mazahur Ali… v. King-Emperor should be whittled down by a Court which is not entitled to overrule it: and I expressly reserve my opinion on the question whether that case did or did not go too far. That, however, is the measure of justice and strictness which was meted out to the accused there and I am not going to exact a lower scale in the present case.

In Mr. B.L Mitter's argument there was a contention that whether or not failure to comply with the section properly amounts to an irregularity or to an illegality vitiating the proceedings depends on the question of merits, that is to say, on the question whether the accused person has been prejudiced or has not been prejudiced. I must point out that there are some manifest difficulties in this view. My duty, I think, is clear, namely, to follows the decisions of a Division Bench of the Court and to treat this trial as having become illegal from the moment when without compliance with sec. 342, the Magistrate called upon the accused to enter on their defence.

The case is therefore sent back to the same Magistrate to begin the proceedings anew as from the end of the re-examination of the witnesses for the prosecution, that being the point at which in my opinion, for non-compliance with sec. 342, the proceedings became illegal under the authority to which I have already referred.

Mr. Sanyal must excuse me if I do not discuss certain matters which he has mentioned in arguing this part of the case, but I have to remember that anything I might say at the present moment might seriously embarrass one or the other of the parties when the proceedings begin afresh in the lower Court.

The result therefore is that the convictions of the accused are set aside and the case sent back to the same Magistrate to begin the trial afresh from the point which I have indicated.

The fines, if paid, must be refunded.

The same order is made on the revision petition at the instance of the second accused, the printer.

J.N.R

Case remanded.