JOTINDRA NATH MUKHARJI Vs. RADHA KRISHNA BUDHIA

JUDGEMENT

(1.) One Radha Krishna Budhia, a contractor of Ranchi, had supplied some read- metal for the repair of the Marwaritola road in the Ranchi Municipality. The Municipal Engineer reported to the Vice-Chairman of the Municipality that the work of consolidation had begun, but that he had found that 12 stacks of metal had been taken away and he had learnt on inquiry that Radha Krishna Budhia bad done this. About the same time a Municipal Commissioner, named Rai Sahib Jotindra Nath Mukharji, wrote to the Chairman to say that he had noticed that several stacks which were on the roadside were not there and on inquiry he bad learnt that a Marwari gentleman's carters had taken them. These reports led to the appointment of a committee of inquiry in the Municipality, some of whose members found that the reports were true while others found that they were not. Radha Krishna Budhia then preferred a complaint in the Court of the Sub-divisional Magistrate against the Municipal Engineer and Rai Sahib Jotindra Nath Mukharji charging them with an offence punishable under Section 500, Indian Penal Code.

(2.) The Magistrate asked the Chairman of the Municipality for a report, and on receipt of this report, after making a further inquiry, he issued process against Rai Sahib Jotindra Nath Mukharji and Babu Satish Chandra Ghosh under Section 500, Indian Penal Code. The two accused persons moved the Judicial Commissioner who has made a reference to this Court under Section 438, Criminal P.C., recommending that the proceedings should be quashed. In the case of Rai Sahib Jotindra Nath Mukharji the learned Judicial Commissioner points out that in the absence of sanction of the Local Government under Section 197, Criminal P.C., the Magistrate has no jurisdiction to issue process. Mr. Manohar Lal suggests that, in making a report of this kind to the Chairman, the Municipal Commissioner was not acting in exercise of his official functions; but I consider on this point the argument of Mr. K.B. Dutt must prevail, that not only was he exercising his official functions in making the report, but that he world have shown a neglect of duty in failing to do so, on the hypothesis that the 12 stacks ware actually missing.

(3.) The order of the Magistrate of the 14 February, summoning Rai Sahib Jotindra Nath Mukharji under Section 500, Indian Penal Code, must therefore be set aside and the proceedings against him quashed. The Municipal Engineer is not entitled to the benefit of the provisions of Section 197, Criminal P.C., though if the report was made in good faith, he is entitled to the benefit of the seventh and eighth Exceptions contained in Section 499, Indian Penal Code. The learned Judicial Commissioner considers that no reasonable man could hold that the Municipal Engineer had any intention to defame the complainant. Mr. Manohar Lal says that the 21 stacks of metal had never been removed from the road at all, so that there was no foundation whatever for the report made, and if that fact can be proved, that the Engineer reported that 21 stacks were missing when in fact none were missing, it would be difficult to say that there was no defamation.