NARAYAN CHOUDHURY v. RADHA GOBINDA DUTTA — 1970 DIGILAW 230 (CAL)

N. C. TALUKDAR, J. ( 1 ) THIS appeal is at the instance of the complainant-appellant and is against an order dated the 11th June, 1968, passed by Sri J. N. Bhattacharya, Magistrate 1st Class, Burdwan acquitting the accused-respondent under Sec. 251 (11) of the Code of Criminal Procedure of the charge under Section 500. I. P. C. in Case no. C. R. 1344 of 1965. ( 2 ) THE facts adding on to the appeal can be put in a short compass. Both the parties are respectable; the complainant Sri Narayan Chowdhury is the Chairman of the Burdwan Jilah Parisad while the respondent is the Editor and Publisher of a fortnightly styled as the "bardhamaner Dak". The parties belonged to and worked together for congress in the past and then about 15 years back there was a parting f ways. A petition of complaint was parting of ways. The parties belonged to and worked together for congress in the past and then about 15 years back there was a parting f ways. A petition of complaint was parting of ways. A petition of complaint was filed before the Sub-divisional Magistrate, Burdwan under Section 500, I. P. C. by the complainant, Narayan Chowdhury, against the editor of fortnightly, Radha Gobinda Dutta, stating inter alia that the complainant is the chairman of the Burdwan Jillah parisad; that the accused is the Editor of the local fortnightly "bardhamaner Dak"; that ever since the parting of ways the accused has been bearing a personal grudge against the complainant and being actuated by an evil design to harm the reputation of the complainant, he has been publishing false accusation against him in his fortnightly ; that on 9-4-65 the accused published a news-item under the caption "saitaner Karkhana" (Devil's Workshop) wherein oblique references were made against the complainant and false imputations were made against him, lowering him in public estimation; that the complainant was thereby very much hurt and injured in his position; that the accused was warned against indulging in such accusations in future; that in spite of the same accused did not resist but published again on the 23rd July, 1965, another news-item under the caption "buser bhara bridhi protirodhe tibra andolan" (possibility of a grave agitation for resisting increase of bus fare); that the said publication imputed another false malicious imputation concerning the complainant in order to harm his reputation in the eyes of public; and that there by the accused had committed an offence under Section 500, I. P. C The accused was thereupon summoned and placed on his trial before the learned trying Magistrate to answer a charge under Section 500, I. P. C. , The defence case inter alia is that the accused is not guilty; that he is protected under the 9th exception to section 499, I. P. C. that the publications, exhibits 1 and 2 merely contained his expression of opinion or comments made in good faith for the public good; and that the impugned publications in the fortnightly in question have not been duly proved. The prosecution examined 6 witnesses besides proving several exhibits and as a result of the trial of the learned trying Magistrate by his order dated the 11th June, 1968, acquitted the accused respondent of the offence charged. The prosecution examined 6 witnesses besides proving several exhibits and as a result of the trial of the learned trying Magistrate by his order dated the 11th June, 1968, acquitted the accused respondent of the offence charged. This order has been impugned and forms the subject-matter of the present Appeal. ( 3 ) MR. Siddhartha Sankar Roy, counsel (with Mr. Dilip Kumar Dutta Advocate) appearing in support of the appeal on behalf of the complainant has made a four-fold submission. The first two contentions are on points of law and other two involve points of fact. The first contention of Mr. S. S. Roy relates to the interpretation of exception 9 to section 499, I. P. C. and in inter alia that the learned trying Magistrate has misunderstood and misinterpreted the said provisions, vitiating thereby the ultimate order of acquittal based thereupon. The next contention of Mr. S. S. Roy is that the onus has been wrongly shifted by the learned trying Magistrate even after the primary onus was duly discharge by the complainant in the case and as such the order of acquittal passed is not maintainable in law. The third point raised in one of fact viz. , that the legal materials on the record bring to light the presence of express malice or malice in law and the failure on the part of the learned trying Magistrate to find the same has resulted in a failure of justice. The fourth and last submission made by the learned counsel appearing on behalf of the complainant-appellant is that the evidence on record does not warrant the order of acquittal passed by the court below. Mr. Balai Chandra Roy, Advocate (with Mr. Nitish Nandan Adhikary, Advocate) appearing on behalf of the accused-respondent on an appraisal of the entire evidence on record and the presumption of innocence with which the accused started has been affirmed by the factum of acquittal. As t the specific points raised by Mr. Siddhartha Sankar Roy, Mr. Mr. Balai Chandra Roy, Advocate (with Mr. Nitish Nandan Adhikary, Advocate) appearing on behalf of the accused-respondent on an appraisal of the entire evidence on record and the presumption of innocence with which the accused started has been affirmed by the factum of acquittal. As t the specific points raised by Mr. Siddhartha Sankar Roy, Mr. Balai Chandra Roy submitted in the first instance that there has been no misinterpretation of exception 9 to 499, I. P. C. as alleged or at all and that it is a short and simple case of defamation where, in view of the clear protection afforded to the accused person within the ambit of exception 9 to section 499, I. P. C. the order of acquittal it clearly maintainable in law. In this context it was further submitted that the publication impugned was made in good faith by the editor of a fortnightly for public good. The learned Advocate for the accused respondent next contended that the onus has not at all been wrongly shifted but that it is the prosecution which has failed to discharged the primary onus enjoined by law justifying the ultimate order of acquittal. Mr. Balai Chandra Roy finally contended that there is no express malice of malice in law and the order passed by clear and cogent order passed on an appraisal of the evidence on record, both oral and documentary, and there is no reason as to why such an order of an acquittal should be set aside. ( 4 ) HAVING heard the learned counsel appearing on behalf of the respective and on going through the evidence on record I find that the case has not been disposed of properly by the learned trying magistrate and that there has been in fact a non-conformance to the procedure established by law. As this defect goes to the root of the case I will take it up for consideration in the first instance. The learned trying magistrate, as it appears from the nature of the findings arrived at by him, has not disposed of the case in accordance with law, resulting in a mistrial. Mr. Siddhartha Sankar Roy, counsel appearing on behalf of the complainant-appellant has catalogued several items in support of his contention that the order impugned is bad and same further prove that there has not been a proper trial. Mr. Siddhartha Sankar Roy, counsel appearing on behalf of the complainant-appellant has catalogued several items in support of his contention that the order impugned is bad and same further prove that there has not been a proper trial. In the first instance the learned counsel submitted that the trying Magistrate has erred in proceeding n the footing of some purported admissions made by the complainant, as incorporated in has findings, and the same has vitiated his ultimate order. In this connection he referred to the findings that "truth of the facts alleged have been more or less admitted by complainant himself when confronted by the defence" and again "it does become clear that the facts impugned are substantially admitted to be true even by the complainant". The learned counsel then referred to the onus being wrongly shifted by the learned Magistrate and in that context pinpointed the following findings by the learned trying Magistrate. "complainant further denied that Sir Goswami, the favoured licensee was his party man and he has not attempted to produce any evidence that Sri Goswami was not a congressite and that licence was issued to him for consideration other that Sri Goswami being a congressite". Mr. Siddhartha Sankar Roy further submitted in this context that the learned trying Magistrate erred in findings that the"complainant has simply denied all the justifications and attempted nothing to prove that he had no indirect interest for the cause of the bus-owners". This is again shifting the onus. The learned counsel next contented that the findings arrived at by the learned Magistrate are fully based upon unwarranted hypotheses and assumptions and in this context he referred to the findings relating to the 15 years' jealousy and rivalry between the parties and that the accused editing a paper "can be expected to be aware about his responsibility towards the people known or unknown and to the society at large". The analysis of the prosecution evidence again is very vague and misleading and one looks in vain to the order for ascertaining the steps of the reasoning of the learned trying Magistrate in this behalf. Mr. Siddhartha Sankar Roy next referred to the finding arrived at in this context by the trying Magistrate towards the end of the judgment that: "before I conclude I would like to say something about the witnesses. Mr. Siddhartha Sankar Roy next referred to the finding arrived at in this context by the trying Magistrate towards the end of the judgment that: "before I conclude I would like to say something about the witnesses. All the witnesses seem to be more or less interested in the complainant. One of them stands not to be creditable enough. None of the witnesses have bothered to enquire of the truth or falsity of the imputations through they held that complainant has gone down in their estimation". The learned trying Magistrate, according to the learned counsel, has also gone wrong in not considering the effect of the evidence of one witness on the prosecution case, if believed and in finding that"anyway P. W. 1 is the material witness and prosecution has solely rested upon his evidence. Evidence of other witnesses does not supplement in many material particulars in providing the prosecution case which entirely fails". This again is not a correct approach for disposing of the case. The learned counsel for the complainant next referred to the reliance put by the learned trying Magistrate on the petition of complaint which is not by itself evidence and the finding pointed out by him in this context is that"in this case, complainant has sought to explain bad faith on the part of the accused by stating, rather developing in his examination-in-chief (there is no mention of the same in the petition of complaint) that they were once co-workers under the Congress organization and that accused parted ways 15 years back?. . . ?". Mr. Balai Chandra Roy appearing on behalf of the accused-respondent joined issue and submitted that the order of acquittal is not based on these findings alone but that the learned Magistrate proceeded on an overall consideration of the evidence on record and acquitted the accused-respondent. Mr. Balai Chandra Roy further contended that the order impugned is one of acquittal affirming the presumption of innocence with which the accused started and such the finding of fact arrived at by the learned trying Magistrate should not be interfered with unless and until there are compelling reasons which are however non est in the present case. I have given the matter my anxious consideration and I find that there is much force behind the submission or Mr. Siddhartha Sankar Roy, counsel, appearing on behalf of the complainant-appellant. I have given the matter my anxious consideration and I find that there is much force behind the submission or Mr. Siddhartha Sankar Roy, counsel, appearing on behalf of the complainant-appellant. The test is as to whether there has been a disposal in accordance with law without prejudicing any party, inasmuch as the complainant is as much a limb of the case as the accused and justice should be done in accordance with law. ( 5 ) THESE are not however the only defects in the order impugned. The two publications which form the sheet-anchor of the prosecution case viz. , the publication dated the 9th April, 1965 and the publication dated the 23rd July, 1965, marked as exhibits 1 and 2 respectively, have not been properly admitted in evidence of P. W. 1 who sought to prove the same. A specific ground has also been taken in the memorandum appeal as well as in the petition for special leave. The findings arrived at in this context by the learned Magistrate are contradictory. While appreciating the view-point of the learned defence lawyer in this context, the learned trying Magistrate nonetheless disagreed with his submission that the prosecution case must entirely fall on this ground alone. It is difficult to appreciate the ratio decidendi of the learned Magistrate and also to follow the case law referred to by him. In short, the learned trying Magistrate has erred in law in his findings on this point, which goes to the root of the case. The position in law is quite clear. A reference in this context may be made to the case of Joy Engineering Works v. State f West Bengal, reported in AIR 1968 Cal 407 (SB), where in Mr. Justice Banerjee observed at page 445 that "the learned Advocate General objected any reliance being placed on the press reports set out above because according to him they were not admissible in evidence in the absence of affidavits by the correspondents or the reporters. He is right in his contention and the stand taken by him find supports from the decision of the Supreme Court in AIR 1959 SC 1376 ". I will now refer to the Supreme Court case mentioned above. He is right in his contention and the stand taken by him find supports from the decision of the Supreme Court in AIR 1959 SC 1376 ". I will now refer to the Supreme Court case mentioned above. In the case of Gullappalli Nageswararao (In C. A. No. 198 of 1959), Chennupati Satyanarayana (in C. A. No. 199 of 1959) and V. somasankara Sastry (In C. A. No. 200 of 1959), Appellants v. State of Andhra Pradesh, reported in AIR 1959 SC 1376 , Mr. Justice K. Subbarao (as his Lordship than was), observed at page 1382 that"no attempt was made by the appellants to file any affidavit in the High Court, sworn to by persons who had attended the meetings addressed by the Chief Minister and heard him making the said statements. In the circumstances it must be held that it has not been established but the appellants that the Chief Minister made the speeches indicating his closed mind on the subject of nationalization of bus transport in Krishna District, Hoogly. If these newspaper cuttings are excluded from evidence factual basis for the appellant's arguments disappears". A reference may also be made to the case of Harbhajan Singh v. State of Punjab, reported in AIR 1961 Punj 215 wherein Mr. Justice Tek Chad observed at page 221 that "the presumption of genuineness attached under this section (Section 81 of the Indian Evidence Act) to a newspaper cannot be treated as proof of the facts reported therein, as a statement of a fact contained in a newspaper is merely heresay and therefore inadmissible in evidence, in the absence of the maker of the statement appearing in court and disposing to have the perceived the fact reported". I respectfully agree with the principles laid down in the aforesaid cases and hold down the publications impugned have not been legally proved. The publications impugned should have been properly proved by the complainant by producing an attasted copy of declaration by the accused in his capacity as an editor of fortnightly under Section 5 of Act XXV of 1867 to established that he was the editor of the newspaper concerned. The result is that there has been a non-conformance to the procedure established by law in disposing of the case by the court below. The result is that there has been a non-conformance to the procedure established by law in disposing of the case by the court below. In the well known case of Taylor v. Taylor reported in (1876) 1 Ch D 426, Jessel M. R. observed at p. 431 that "when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted. . ??. . ". the said principles were approved f and applied by their Lordships of the Judicial Committee in the case of Najir Ahmed v. The King Emperor, reported in 63 Ind App 372 = (AIR 1936 PC 253 (2) ). Lord Roche, delivering the judgment of the Judicial Committee, observed at pages 381 and 382 (of Ind App) = (at p. 257 of AIR) that"the rule which applies is a different and not less well recognized rule viz. , that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden". In a later decision the Supreme Court again reiterated the said principles when in the case of State of Uttar Pradesh v. Singhara Singh, reported in AIR 1964 SC 358 , A. K. Sarkar J. (as his Lordship then was) delivering the judgment of the court observed at p. 361 that "the rule adopted in (1876) 1 Ch D 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act has laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted". I respectfully agree with the said observations and I hold, in the facts and circumstances of the present case, that there has been a mistrial due to the reception and consideration of inadmissible evidence and the resultant non-conformance to the procedure established by law, vitiating the ultimate order of acquittal. I respectfully agree with the said observations and I hold, in the facts and circumstances of the present case, that there has been a mistrial due to the reception and consideration of inadmissible evidence and the resultant non-conformance to the procedure established by law, vitiating the ultimate order of acquittal. The same is accordingly liable to be set aside and the case should go back to the court below for a proper trial in accordance with law. ( 6 ) IN view of my above findings, it is not necessary for me to determine the other points raised by the learned counsel appearing on behalf of respective parties and I make it quite clear that I make no observations as to the merits thereof. ( 7 ) IN the result I allow the appeal; set aside the order dated the 11th June, 1968, passed by Sri J. N. Bhattacharya, Magistrate, 1st Class, Burdwan, in Case No. C. R. 1344 of 1965, acquitting the accused-respondent of the charge under Section 500 I. P. C. ; and I direct that the case shall go back to the court below for being tried expeditiously and in accordance with law, in the light of the observations made above, by some other magistrate to whom the case is to be assigned by the learned Sub-Divisional Judicial Magistrate, Burdwan. ( 8 ) THE records are to go down as early as possible. Appeal allowed.