The Judgment of the Court was as follows:—

Purna Chandra Ghose was, on the complaint of one Ashutosh Das Gupta, charged with an offence under sec. 500 of the Indian Penal Code. He was tried by a Deputy Magistrate of Dacca who acquitted him on the 31st May 1923. The Government have preferred this appeal against his acquittal and a rule has also been issued against the acquittal at the instance of the complainant. For the proper understanding of the matters which arise from this appeal it is necessary to state a few facts.

In the year 1908 three brothers were the owners of the Bhowal Estate at Jaidebpur. In the year 1908, the 2nd brother Kumar Ramendra Narain Rai, fell ill and came to Calcutta for treatment. He was accompanied by the complainant, who is a qualified medical practitioner, and who went as his family physician. He was treated in Calcutta by Dr. Sarbadhikari who advised him to take a change and accordingly in April 1909 the Kumar went to Darjeeling accompanied by the complainant, by his wife and her brother, by a Secretary and by some menial servants.

On the 6th May, it is said, that the Kumar was attacked by biliary colic, a disease from which it is said that he had suffered before and for which he had been treated by Colonel Pardey Lukis.

On the 6th May the disease is said to have become acute and Colonel Calvert, I.M.S, and Rai Shahib Nibaran Chandra Sen, the then Assistant Surgeon in charge of the Darjeeling Hospital, who is now dead, were called in and saw the Kumar on the 7th and 8th May and treated him. The Kumar is said to have died on the 8th May 1909 at midnight. On the 9th May 1909 his body was taken to the cremation ground. The widow and her party left Darjeeling for Jaidebpur on the 10th May and the shrad ceremony was performed at Jaidebpur.

In the year 1921, a sanvasi appeared in the Dacca District and some persons stated that he was the Kumar who, they said, had never died and there is no doubt that the sanyasi had a certain number of adherents who believed him to be the Kumar. The story put forward in support of this belief shortly is that some medicine was administered to the Kumar as a result of which he became unconscious, that those about him thinking he was dead took him to the cremation ground in his unconscious state. That at the cremation ground a storm of rain and hail came on which prevented the cremation being carried out and those with the body fled. That in their absence a sanyasi appeared and took away the unconscious Kumar who was eventually revived by the sanyasi. That those who had brought the Kumar to the cremation ground on their return after the storm had abated found that the Kumar had disappeared and therefore set fire to the empty funeral pyre and after it was consumed returned to Darjeeling concealing the disappearance of the body of the Kumar. Further it has been suggested as a variant of the story that after it was found that the Kumar had disappeared a dead body was obtained and that this was burned as the purported corpse of the Kumar.

In the month of July 1921 Puma Chandra Ghose, who is a resident of Jaidebpur, published from the Jagat Art Press of Dacca, a Bengali pamphlet called “Heart's beloved Raja in the guise of a Fakir.” Some 1000 copies of the pamphlet were issued and the pamphlet was sold in Jaidebpur, Dacca and elsewhere. This pamphlet contains the passages which are complained of — which are to be found at lines 3, 4, 9-16, 21 and 22 of p. 5 of the pamphlet. As translated the passages are as follows:— Line 3 and 4 “Ashu Doctor greatly enjoyed the confidence of the Kumar. In his looks and talk he was a gentleman. In his act he was like Ea (meanness).”

Lines 9-16.

“Then went the Khanshamas, Jamini, Akhila, Durwan Sarip Khan and several others. Having planned a scheme they all went with the second Kumar to the Hills. Some sort of medicine Asnu Doctor administered, by taking which the second Kumar became senseless. A great friend of the Kumar was Ashu Babu and so the Kumar took the medicine without suspicion and became unconscious.”

Lines 21 and 22:—

“They were all overjoyed to see the Kumar senseless and hurriedly took him away for cremation”

The defence put forward was that the accused believed the truth of the statements contained in the pamphlet and published it bonâ fide. The pamphlet at its commencement contains a statement of the point of view from which the accused wrote it. The passage has been translated to us by the Head Interpreter of this Court as follows:—

“I begin to write by remembering Sri Hari, I shall write all that I hear from people's mouth. I shall go on writing the faults and virtues without judging. I shall declare and publish not knowing the truths or falsehoods,” and the Head Interpreter in reply to the accused's counsel stated that “without judging” meant without the accused passing his own personal judgment and that “not knowing the truths or falsehoods” meant “without having personal knowledge if what was stated was true or false.” The learned Magistrate propounded the following issues for determination:—

(1) Whether or not the words contained in the lines 4, 5, 9-16, 21 and 22 at p. 5 of the pamphlet was defamatory?

(2) Whether or not the accused published Ex. 1?

(3) Whether or not the accused made the imputations conveyed in the lines in question intending to have or knowing or having reasons to believe that they would harm the reputation of the complainant?

(4) Whether or not the said imputations were true and made for the public good?

(5) Whether or not the Raid imputations were made in good faith and for the protection of the public good?

As regards the first issue the Magistrate has found that some of the words complained of are defamatory and on the second issue he finds that the accused published the pamphlet which was marked at the trial as Ex. 1, and on the 3rd issue he found that the imputations were calculated to lower the complainant in the estimation of the public and thereby cause harm to his reputation. It is true that he reserves for consideration the question whether they were malicious but as he states in his judgment he decides issues 1, 2 and 3 in favour of the prosecution. He also decides the 4th issue against the accused holding that his plea of justification under Exception 1 to sec. 499, I.P.C failed.

As regards the 5th issue he finds that the accused bonâ fide believed the imputations to be true, that a prudent man ought to believe them as true, that the accused took due care and attention and that the imputations were made for the public good. He therefore finds the accused's plea of justification under Exception 9 to sec. 499, I.P.C, established and acquits him.

I gather from the judgment that the learned Magistrate arrived at this conclusion because he did not believe that the Kumar suffered from biliary colic at Darjeeling or died therefrom. He does not accept the complainant's evidence on this point and expunges from the evidence Colonel Calvert's certificate of the cause of death and also the certificate of the Deputy Commissioner. Moreover as a result of considering the prescriptions given for the treatment of the Kumar, largely in the light of passages in certain medical books, he comes to the conclusion that none of the prescriptions were for biliary colic and after considering the Kumar's symptoms he diognises these as symptoms of arsenical poisoning resulting from some medicine which, he concludes from the evidence, was prescribed and given to the Kumar by the complainant and he thinks that a prudent and reasonable man would draw the conclusion that this caused the Kumar's collapse.

He thinks moreover for reasons stated in the judgment that the conduct of the complainant reasonably suggests conspiracy to a prudent mind. The learned Magistrate apparently was satisfied that the accused acted with due care and attention before publishing the imputations because he examined at the trial 22 witnesses, many of them of position, and because he produced at the trial copies of prescriptions and hospital entries. He was also satisfied that he acted for the public good for reasons which he has stated.

With great respect to the learned Magistrate, who devoted much care and attention to his task, I cannot imagine any more unsatisfactory course than the one which he has adopted with regard to the prescriptions. For a mind untrained in medicine to attempt, largely without trained assistance, to ascertain what certain medicines were prescribed for and what should be prescribed for biliary colic by reference to medical books is to my mind entirely unsound and I think the conclusions are valueless. Again to assume that the amount of arsenic contained in the prescription, which he concludes the complainant prescribed and administered, would produce arsenical poison and collapse and unconsciousness is a conclusion impossible to support without expert evidence. Again the fact that certain evidence was produced at the trial cannot be prayed in aid to establish the care and attention imputed to the accused by the Magistrate before publishing Ex. 1 unless there is evidence to show that some of the informations was in his possession at the time Ex. I was published and of this there is no evidence whatsoever in the present case. Indeed this is negatived by the passage at the commencement of Ex. 1 already referred to where the accused says that he does not know whether the statements he is making in the pamphlet are true or false. It seems to us that the whole of the reasoning upon which the Magistrate has decided issue No. 5 in favour of the accused is fallacious. The grounds upon which the reasoning is based are entirely unsound and the conclusions drawn therefrom must accordingly fail. So far as the conclusion of the Magistrate on the first four issues are concerned we accept them and they we the only conclusions, we think, at which it is possible to arrive but having regard to his finding on issue No. 5, and the fact that we cannot accept the conclusion on which it is based it is necessary for us to examine for ourselves the evidence upon the record to ascertain if the accused's plea of justification is well-founded.

The defence witnesses divide themselves into certain categories:—

(1) Those who purport to recognise the Sannyasi as the Kumar.

(2) The medical evidence.

(3) Those who speak to the occurrence in May 1009.

Under the 1st head come D.W 1, D.W 2, D.W 3, D.W 5, D.W 6, D.W 8, D.W 11, D.W 12, D.W 18. But their evidence really amounts only to an expression of their own belief and is of no real assistance to the accused upon whom the burden lies of proving the substantial truth of his assertions.

Under the 2nd head comes D.W 7 who deals with the prescriptions. He practises as a doctor at Jaidebpur and is related to the accused by marriage and stated that the prescriptions were not for biliary colic.

Under the 3rd head come D.W 4, who only speaks of rumours, D.W 9, a cook who went to Darjeeling in 1909 and spoke to the Kumar shouting that he felt a burning sensation and asking what medicine had been administered and to statements made to him by Sarip Khan about the disappearance of the dead body from the cremation ground and to a dead body tied up being brought the next day and being cremated, D.W 10 who speaks of rumours, D.W 13 who speaks of rumours and what he heard from D.W 15, D.W 14 who speaks of rumours and asserts that he was present at the cremation of a body from Stepaside, which I suppose he suggests was not that of the Kumar, D.W 15, a Station Master, who speaks to seeing the Kumar 12 days after the cremation in the dress of a Sanyasi, D.W 16 who speaks to the disappearance of the body from the cremation ground, D.W 19 whose evidence is clearly valueless on the face of it.

Now we do not conceive it to be any part of our duty on this reference to arrive at a finding as to the truth or falsity of the claim put forward by or on behalf of the Sanyasi to be the Kumar. He was not called and the issue does not directly arise. All that we have to do is, rejecting as we do the Magistrate's reasoning upon which his finding on the 5th issue is based, to ascertain if the accused's plea of justification is supported by the evidence and if he brings himself within any of the Exceptions to sec. 499, I.P.C

Now, the accused has to establish that if it was true that the complainant conspired against the Kumar and that he administered medicine which rendered him unconscious. Having read the evidence we find that there is no evidence of any conspiracy by the accused against the Kumar and no satisfactory evidence whatsoever that he administered to him medicines which rendered him unconscious. Two doctors of experience were in attendance on the Kumar and it is extremely unlikely that they would not have detected anything wrong or that their suspicions would not have been roused if there had been any improper treatment of the Kumar. This being so, the accused is not protected by the 1st Exception to sec. 499, I.P.C as his imputations are not true. No question therefore of the publication being for the public good arises. Nor do we think that the accused is protected by the 9th Exception to the section as the publication was clearly not made in good faith having regard to the flimsy materials upon which it was based and to the absence of any evidence that the accused made any enquiries before publication or had at his disposal or within his knowledge at that time any of the evidence which is now upon the record. If good faith is not established it is not strictly necessary to consider if the public good was involved. But if it were, it is difficult to see how the publication in the present case could have been for the good of the inhabitants of Jaidebpur.

Now, there is no doubt that a Court hesitates to interfere when an accused has been acquitted and that it does not do so unless there has been a miscarriage of, justice and we have considered the cases on this point to which we were, referred by the Counsel for the accused, but I am unable to say that this is not a case in which we should interfere. I think we should do so, and I think not only that there is no justification for the statements complained of but that there is no evidence worth the name to support them. We accordingly allow the appeal and we also make the Rule absolute. We do not think that it is necessary in the present case to order a retrial. All the evidence has been placed before us and we find the accused guilty of the offence with which he was charged and sentence him to undergo simple imprisonment for one month and to pay a fine of Rs. 1,000 or in default, to suffer simple imprisonment for a further period of one month. The fine, if recovered, is to be paid to the complainant.

J.N.R

Appeal allowed;

Rule made absolute.