BHAGOLELAL KWALCHAND DARJI Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application by three accused, Bhagolelal, Jaichand and Jagpatsingh, who were convicted and sentenced as under in the Court of the Magistrate, First Class, Mandla: Bhagolelal and Jagpatsingh under Section 500, I.P.C., for which Bhagolelal was sentenced to six months simple imprisonment and Jagpatsingh to a fine of Rs. 200, while Jaichand was convicted under Section 501, I.P.C., and sentenced to pay a fine of Rs. 200. The defamatory matter concerning which they were charged was a poem (Ex. P-1) entitled 'GauGuhar' (the cry of a cow), which was composed by Bhagolelal while Jagpatsingh financed its printing, and Jaichand is the owner of the press which printed it. This poem was distributed among the public as a piece of propaganda against the complainant and with the object of strengthening the position of the rival Congress candidate for election to the Central Provinces Legislative Assembly. These facts are all admitted. The complainant himself, Thakur Birendra Singh, has filed a separate application, No. 478 of 1939, urging that the sentences are inadequate and should be enhanced. It will also be disposed of by this order.

(2.) THE application of the accused is pressed on these grounds: (1) That the alleged offence falls under Section 171-G, I.P.C., and as that Section constitutes a special offence it was not open to the complainant to proceed under Section 500, I.P.C., and as the prosecution under Section 171-G requires sanction of Government as provided in Section 196, Criminal P.C., the present trial was bad. (2) It is said that the conviction cannot be sustained even under Section 500, I.P.C., because the complainant was really responsible for his servants' acts and could not have been ignorant of the wholesale impounding of cattle that was going on. The accused are protected by Exception 1 or Exception 9 or Exception 10 to Section 499, I.P.C. (3) It is urged that the joint trial of all the accused was illegal. This last ground can be quickly disposed of. Before charge was framed a revision application on these points was preferred to the High Court, and I held on 4th May 1938 (Criminal Revision No. 85 of 1938) that the prosecution case alleged association and community of purpose among the accused, and their joint trial was permissible. That finding stands and would not be affected although in the result it was found that there was no such common purpose. Although the remainder of the other nine accused have been acquitted the three applicants are found to have acted with a common purpose. Asutosh Das v. Purna Chandra (1923) 10 AIR Cal 11 is distinguishable as there there was no evidence of conspiracy amongst the accused. For Section 239, Criminal P.C., it is enough if the different offences are committed in the course of the same transaction. In Babulal v. Emperor AIR 1938 PC 130 it was laid down that the criterion which makes a joint trial allowable is what the prosecution case is, not what the result may be. In the present case, too, conspiracy was alleged in para. 5 of the complaint: see also Parsotam Das v. Emperor AIR 1935 All 769.

(3.) ONE other minor point raised is that the word "atyachari" should be translated "hard-hearted" instead of "tyrannical." "Tyrannical" is the sense in which both the lower Courts understand the word, and that seems to fit in with the context. But whichever meaning is given makes little odds. The gist of the poem is clearly defamatory, and there is evidence, which has been believed, that its effect on a number of voters was that they took it at its face value and believed the complainant to be a 'hatayara' or killer of cows and therefore repugnant to good Hindus to whom the cow is a sacred animal. If the accused relied on the exceptions to Section 499, Penal Code, it was for them to prove that they applied. Exception 1 is clearly inapplicable as it requires that the imputations must be true. Exceptions 9 and 10 both require the existence of good faith, which again implies the exercise of due care and attention. The accused led no evidence to show that they made careful enquiries; nor is there anything in the cross-examination to lead one to suppose that the accused were misled by wrong information given to them in spite of attempts on their part to verify it. There were therefore no grounds on which the lower Courts could have held these exceptions applicable.