Brodhurst, J.:— This is an application for revision of the order of the Sessions Judge of Allahabad, dated the 3rd June, 1887, by which he, on an appeal against the order of the Joint Magistrate of Allahabad, dated the 28th March, 1887, affirmed the conviction of the present petitioner under s. 500 of the Indian Penal Code, but reduced his sentence from two months' simple imprisonment and fine of Rs. 250, or in default two months' further simple imprisonment, to one month's simple imprisonment and a fine of Rs. 100, or in default to one month's further simple imprisonment.
Three grounds for revision have been taken. The first of these is, “Because there having been no legal complaint there could be no trial and conviction under s. 500.” It is pointed out by Mr. Banerji, counsel for the petitioner, that the offence of defamation punishable under s. 500 of the Indian Penal Code is one of the offences mentioned in s. 345 of the Criminal Procedure Code as compoundable; that s. 500 of the Penal Code is in chapter XXI of that Code; that it is enacted in s. 198 of the Criminal Procedure Code, that “no Court shall take cognizance of an offence falling under chapter XIX or chapter XXI of the Indian Penal Code or under ss. 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence;” that “complaint,” as defined in s. 4 of the Criminal Procedure Code. “means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but does not include the report of a Police officer;” that in this case the complaint was made in writing, but that it does not contain a charge under s. 500 of the Penal Code, and [42] that the allusion made in it to “libellous matter” is merely in support of the charges under ss. 352 and 504 of the Penal Code that were there actually made, and Mr. Banerji referred to the judgment of my brother Straight in the case of Queen-Empress v. Kallu as sustaining his plea.
I think Mr. Banerji's argument is sound. The libellous matters referred to were published in the Prag Samachar of the 22nd January, 1887. The complainant did not on the publication of the paragraph take immediate action. He did not make any objection until he happened to meet the accused in the street. His complaint is dated the 27th January, 1887; the charges preferred in it are of offences under ss. 352 and 504 of the Penal Code, and these offences are alleged to have been committed on the 26th January, 1887, by Pandit Dookinandan, Brahmin, Editor of the Prag Samachar, Jagrup Brahmin and Ram Bakhsh, Sonar.
In the complaint there is this passage:—“On the 26th January, 1887, all of the accused met the complainant in muhalia Atarsua; the complainant asked the accused No. 1 why he was publishing libellous matters in respect of him, and told him that he should not do so. Thereupon the said accused observed that unless he, the complainant, closed his school he would publish still more defamatory matter in respect of him; that be, complainant, replied, ‘If you write still more libellous matters against me, I will bring an action against you.’ Thereupon all of the accused became angry and used abusive language towards him, and when he remonstrated they raised sticks with the intention of assaulting him and approached near to him calling out ‘Strike! Strike!’ If the complainant had not moved away and the witnesses had not interfered, all of the accused would undoubtedly have assaulted him.”
The cause of enmity is then alluded to, and the petition concludes as follows:—“The complainant therefore prays that after enquiry the accused persons may be punished.”
From the above-mentioned passage in the complaint, it is, I think, quite clear that the complainant did not in the first instance prefer a charge of defamation, an offence punishable under s. 500 of the Indian Penal Code, against Pandit Deokinandan, the present [43] petitioner, but merely charged him and the other two accused persons with offences under ss. 352 and 504 of the Penal Code, and prayed that all of them might be punished for those offences. Summonses were issued, not under ss. 352 and 504, but under ss. 500 and 506 of the Penal Code.
In my opinion, the complainant at the time that he presented his petition of the 27th January last had no intention whatever of prosecuting all or any of the three accused persons on account of the paragraph alluded to as having been published in the Prag Samachar of the 2nd idem. The ruling referred to is in point, and the evidence of the complainant, which was given on a date subsequent to that on which the petition was filed, does not, I think, cure the defect in the complaint.
The Joint Magistrate has in his judgment observed:—“The mere omission to include in the complaint a charge under s. 500 of the Code could not invalidate the procedure of the Court. It very frequently happens that the actual offences complained of are not correctly stated in complaints, due on the one hand to the want of acquaintance petition-writers and pleaders' clerks have with the law, and on the other to the inaccurate way in which complainants state their grievances. Along with his complaint the prosecutor filed a copy of the Prag Samachar of the 22nd January, 1887, complaining of the libel complained of. The Court by its action was therefore only taking up the actual complaint, and on these grounds I overrule the legal objection raised.”
I do not concur in these remarks. If a charge of defamation can, subsequent to the presentation of the complaint, be added by the Magistrate on statements made by the complainant in his evidence, whether of his own accord or with reference to suggestions made by the Magistrate, I fail to see what difference of procedure there can be between the classes of cases referred to in ss. 198 and 199 of the Criminal Procedure Code and other cases not included in those sections.
I think that the first ground for revision is valid, and I am therefore constrained to set aside the conviction and sentence, and to direct that the fine, if realized, be refunded.
Conviction set aside.