CHAITAN CHARAN DAS Vs. RAGHUNATH SINGH

JUDGEMENT

(1.) THIS is a petition in revision against an order of discharge under Section 253 (2)Cr. P. C. passed by Sri B. Mohanty, Magistrate, First Class," Cuttack, in a case under Section 500 I. P. C. brought by the petitioner against the opposite party.

(2.) THE material facts are as follows: In village Kamala Prasad Patna, near Olsingh in Khurda Subdivision there is a religious endowment with considerable properties attached to it. The petitioner has been claiming the endowment to be a purely private religious endowment and, as such, not subject to the provisions of the orissa Hindu Religious Endowments Act, but some of the villagers including the opposite party have been agitating for a long time for the control of the said endowment by the Endowments Commissioner on the ground that ft was a public endowment. The petitioner on the 12th January 1949 applied to the Commissioner under section 64 of the Orissa Hindu Religious Endowments Act 1939 (Orissa Act IV of 1939) (hereinafter referred to as the old Act), for a declaration that it was a private endowment outside the scope of the Act. That application was numbered as O. A. No. 48 of 1948-49, but for some reason or other which it is unnecessary to describe in detail, it remained pending for several years. In the meantime the orissa Hindu Religious Endowments Act, 1951 (Orissa Act II of 1952) (hereinafter referred to as the new Act) came into force on 1-1 1955; and the application filed by the petitioner under Section 64 of the old Act was transferred to the file of the assistant Commissioner of Endowments who continued the enquiry under Section 41 of the new Act. The opposite party, however thought that the protracted delay in completing that enquiry was due to the machinations of the petitioner and hence, sometime in February 1956 he sent a written application on behalf of the public to the Minister for law in Orissa, alleging several acts of waste, misappropriation, etc. , against the petitioner pointing out the inordinate delay in the disposal of the proceeding before the Assistant Commissioner, and requesting the Minister to intervene and arrange for the speedy disposal of the same. The secretary to the Government of Orissa in the Law Department, on 2-4-1956, sent a copy of that application to the Commissioner of Hindu Religious Endowments, orissa. The Com- missioner granted a certified copy of that copy to the petitioner on proper application. Armed with this certified copy, the petitioner filed a criminal complaint of defamation against the opposite party alleging that in the latter's application to the Law Minister he had grossly defamed the petitioner, by describing him as a 'profligate' and charging him with mismanagement and breach of trust of the properties of the endowment. The Sub-divisional Magistrate, Sadar cuttack summoned the opposite party under Section 500 I. P. C. and transferred the case to the file of Sri B. Mohanty, Magistrate 1 Class for disposal. When the trial commenced the petitioner as the complainant sought the assistance of the court to obtain the original application from the Law Department of Government, but the Deputy Secretary of that Department claimed privilege for the original under Sections 123 and 124 of the Evidence Act. The learned Magistrate seems to have upheld this contention and then observed that, in the absence of the original application the charge of defamation must necessarily fail inasmuch as the petitioner has not succeeded in affirmatively establishing that it was the opposite party who sent such an application to the government. He therefore discharged the opposite party under Section 253 (2) Cr. P. C. on 5-10-1956.

(3.) IT is necessary at this stage to describe some further events which were not known to the trying Magistrate. While the criminal case of defamation was pending in the Court of the Magistrate, the petitioner applied to this Court under Art, 226 of the Constitution making some allegations against the manner in which the Assistant Commissioner of Endowments was conducting the enquiry under Section 41 of the new Act, and asking for appropriate reliefs. That application was registered as O. J. C. No. 280 of 1956, on 6-6-1956, but after hearing the parties this Court by its order dated 21-8-1956 declined to interfere at that interlocutory stage. After the dismissal of this application under Article 226 of the Constitution, the assistant Commissioner in due course completed the enquiry under Section 41 of the new Act and declared the Endowment to be a public endowment. The petitioner went up on appeal to the Commissioner of Hindu Religious Endowments who substantially upheld the order of the Assistant Commissioner, but declared the endowment to be a temple and not a math, and further declared the status of the petitioner to be that of a hereditary trustee. A second appeal to this Court against his decision under Section 44 (2) of the new Act is reported to be pending.