NARAYAN CHOUDHURY Vs. RADHA GOBINDA DUTTA

JUDGEMENT

(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 Section 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 leading 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 Jillah Pari-shad 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 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 the fortnightly, Radha Gobinda Dutt, stating inter alia that the complainant is the Chairman of the Burdwan Jillah Parishad; that the accused is the Editor of a 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 the 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 the public; and that thereby 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 fort- nightly in question have not been duly proved. The prosecution examined 6 witnesses besides proving several exhibits and as a result of the trial 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 Dutt. 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 the 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 is 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 leraned trying Magistrate even after the primary onus was duly discharged by the complainant in the case and as such the order of acquittal passed is not maintainable in law. The, third point raised is 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 try- , ing 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 Nisith Nandan Adhikary, Advocate) appearing on behalf of the accused-respondent Radha Gobinda Dutt made a broad submission that the learned trying Magistrate has acquitted 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 to 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 Section 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 is 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 discharge the primary onus enjoined by law justifying the ultimate order of acquittal. Mr. Balai Chandra Roy finally contended that there is no express malice or malice in law and the order passed by the learned trying Magistrate is quite a 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 acquittal should be set aside.