SANATAN DAW Vs. DASARATHI TAH

JUDGEMENT

(1.) This appeal is by special leave under Section 417, Sub-section (3) of the Code of Criminal Procedure against an order of acquittal passed by Sri S.K. Ganguli, Presidency Magistrate, Calcutta on 16-9-1949. The appellant, Sanatan Daw was the Director and Managing Partner of the Electric Supply Co. Ltd. of Burdwan. The Respondent, Dasarathi Tah was the Editor, Printer and Publisher of a weekly Bengali paper named 'Damodar' printed and published from Birhata, in the District of Burdwan. The appellant on 24-6-1957 filed a complaint before the Additional Chief Presidency Magistrate, Calcutta against the Respondent alleging that the Respondent had defamed the Appellant by publishing in his weekly paper 'Damodar' an editorial article on 15-4-1957. The learned Additional Chief Presidency Magistrate summoned the Respondent and the case then went to trial. On 20-10-1957, Sri J. C. Chakravartti, Presidency Magistrate, who was trying the case, after examining a number of witnesses, refused to frame a charge and by his order discharged the Respondent under Section 253, Sub-section (1) of the Code of Criminal Procedure. Against this order of discharge, the High Court was moved by the Appellant in Criminal Revision Case No. 1608 of 1955 and the matter went back for further enquiry. On further enquiry a charge under Section 500 of the Indian Penal Code was framed against the Respondent by Sri S.K. Ganguli, Presidency Magistrate, to whom the case was then transferred.

(2.) The charge framed against the accused was with reference to various imputations concerning the Appellants Company and started with the words ..(VERUNACULAR MATTER OMMITED).. in the issue of 'Damodar' of 15-4-1955 (Exhibit 7) intending to or knowing or having reason to believe that such imputation would harm the reputation of the Company. Sri S.K. Ganguli, Presidency Magistrate, who tried the case, acquitted the Respondent on two grounds: tirst that the Respondent was fully covered by the exceptions to Section 499 of the Indian Penal Code, and secondly that he had no jurisdiction to try the case.

(3.) The second point arose in the following way. As regards the publication of the newspaper in Calcutta, so AS to confer jurisdiction upon a Presidency Magistrate, Calcutta to try the case, evidence was given by P. W. 10, the Appellant himself and by P. W. 6 Kanailal Kar. The learned Magistrate very rightly held that publication to the Appellant himself would be no publication within the meaning of Section 500 of the Indian Penal Code. The evidence given by P. W. 6 Kanailal Kar who could not be produced for cross-examination could not be made use of. It has been held in the case of Phani Bhusan Ghosh v. Sibakali Basu, and in the case of Satish Chandra v. Emperor, in ILR (1944) 2 Cal 76: (AIR 1945 Cal 137), that evidence unless complete by cross-examination cannot be proved. It has further been held that in a warrant case until after the framing of the charge the accused has no right to cross-examine the witness This is the view taken in the case of S.C. Mitter v. State, and also in the case of Aurabind De v. The State. Mitter and Sen JJ. also held that evidence before charge was inadmissible in the case of Brahmachari Ajitananda v. Anath Bandhu Dutt. That being the position, the learned Magistrate was clearly right in not taking into consideration the evidence given in examination-in-chief by P. W. 6 Kanailal Kar. In this view he held that because there was no other evidence as to publication, he had no jurisdiction to try the case.