GOLUSU APPALANARASIAH Vs. EMPEROR

JUDGEMENT

(1.) This is a petition to revise the conviction of the petitioner for defamation of the complainant recorded by the Sub-Divisional Magistrate Of Vizagapatam in C.C. 33 of 1928 and upheld by the learned Sessions Judge of Vizagapatam on 16th November 1928.

(2.) Objection is taken to the legality of the conviction on the ground that the proceedings before the Sub-Divisional Magistrate were vitiated by one of two alternative grounds: (a) that there was no complaint before the Magistrate on which he could take cognizance of the case and that the Magistrate, though informed of this defect at the very outset and objection was taken to his proceeding further with the case, brushed aside and took cognizance of the case i.e. issued process against the accused; (b) if the proceedings before the Sub- Divisional Magistrate be regarded as a continuation of those which were started by a previous complaint instituted by the complainant, the said complaint had been transferred by the Sub-Divisional Magistrate himself to the Sheristadar First Class Magistrate of Vizagapatam and was pending before him and had not been withdrawn from that file to the file of the Sub-Divisional Magistrate. To appreciate these objections it is necessary to state that the proceedings against this petitioner originally started upon a complaint filed before the Sub-Divisional Magistrate on 21 December 1927. This complaint was transferred to the Court of the Huzur Sheristadar First Class Magistrate of Vizagapatam and was filed there on 27 December 1927. As shown in the order in C.C. 1 of 1928 of that Magistrate that complaint embraced two distinct matters (1) theft (sic) robbery on 14th December 1927 by the present petitioner and others of a brass vessel and a cloth and (2) defamation of the complainant by this petitioner on and after 18th December 1927, by the pasting of defamatory leaflets and handbills. At the trial of this complaint the present petitioner took objection to the trial of both matters going on together as they constituted distinct offences. On this, the complainant's vakil in the words of the order in C.C. 1 of 1928 dropped that portion of the complaint which relates to the offence of defamation punishable under Section 500, I.P.C. The trial proceeded on the charge of theft and ended in a discharge dated 25 February 1923. Thereupon on 17 April 1928, Mr. Narasimha Rao, pleader for the complainant, put in a petition to the Sub-Divisional Magistrate accusing the former vakil who had conducted the complainant's case in the Huzur Sheristadar Magistrate's Court of having improperly added a charge of robbery into the complaint and of having dropped the charge of defamation, stating that the same complaint is still pending and that therefore no new complaint is necessary and praying for process on the charge of defamation. The complainant did not sign this petition nor was she examined on oath. But the Sub-Divisional Magistrate on 18 April 1928 passed this order "Take on file under Section 500, I.P.C." and posted the case to the 2 May, 1928. On that day the accused through his vakil put in a long petition pointing out the irregularity, that there was no complaint and that there was no case and that the Court had no jurisdiction to proceed. The pleader Mr. Narayana Rao for the complainant answered these objections and as far as can be gathered, the petitioner's objections were overruled and the trial proceeded and ended in a conviction under Section 500 and a sentence of a fine of Rs. 100.

(3.) From the above facts it is quite clear that treated as a new case started before the Sub-Divisional Magistrate there was in C.C. 33 of 1928 no complaint nor was the complainant examined on oath. This is certainly a grave irregularity. Whether it might have been cured or not by acquiescence, there was certainly no acquiescence. This was immediately pointed out but was brushed aside. I can therefore see no ground for saying that this objection was waived or acquiesced in. This would in itself be a sufficiently grave irregularity to vitiate the subsequent proceedings.