I interfere in this case with considerable reluctance having regard to the delay which has taken place, the judgment of the Sessions Judge having been given on 11th December 1902 and the revision petition not having been presented till 20th April, 1903.
But notwithstanding the delay in the presentation of the revision petition, I do not think the conviction ought to be allowed to stand.
The Sessions Judge points out that there is no evidence of the making and publishing of the alleged defamatory statements by the accused. I am bound to accept this as true unless it could be shown that the Judge was wrong and that there was evidence of making and publishing. The Public Prosecutor is not in a position to show the Judge was wrong and as a matter of fact the record does not show any evidence of making and publishing by the accused. The Head Assistant Magistrate appears to have assumed that certain statements made by the accused in answer to questions put to them under section 342, Criminal Procedure Code, relieved the prosecution from the necessity of proving that the accused made and published the alleged libel. In this he was clearly wrong. If authority be needed, it is to be found in Basanta Kumar Ghattak v. Queen-Empress where it was held that a gap in the evidence for the prosecution cannot he filled up by any statement made by the accused in his examination under section 342, Criminal Procedure Code. The Sessions Judge got over the difficulty by saying that no exception was taken to the “irregularity” in the memorandum of appeal to him. The omission to prove the making and publishing by the accused seems to me more than an irregularity. In my opinion it is a defect which vitiates the conviction.
The conviction and sentences must be set aside and the case must go hack to the Head Assistant Magistrate for retrial.