UPENDRA NATH BAGCHI Vs. EMPEROR

JUDGEMENT

(1.) Babu Upendra Nath Bagchi, a vakil of the High Court and one of the leading pleaders of the Bhagulpur Bar, was convicted by the learned District Magistrate under Section 500 of the Indian Penal Code and ordered to pay a fine of Rs. 150. The conviction and sentence were upheld on appeal by the learned Sessions Judge.

(2.) The circumstances of the case are peculiar and raise a question of very great importance. The facts of the case are practically admitted. Mr. F.A. Savi, who is the Assistant Manager of the Baneli Raj, was called as a witness in a case under Section 147 of the Criminal Procedure Code, which was being contested between the Baneli Raj and the Durbhanga Raj. The appellant, who appeared as a pleader on behalf of the Durbhanga Raj, cross-examined Mr. Savi and, with the object of impeaching his credit, asked him whether the Sessions Judge had disbelieved his evidence in the case of Biranchi Singh. It appears that when the appellant put this question, the pleaders on the side of the Baneli Raj objected to it as being improper, and the Court itself only allowed the question to be put on the appellant's assertion that he knew of his own knowledge that such was the case, and that the next question that he would put would prove it. The question was then put and was answered in the negative by Mr. Savi. The next question that was put to him (and also negatived) was "Did you not state before Mr. Hamilton in Lal Behary Singh's case that you were disbelieved by the Sessions Judge, but were believed by the High Court ?" To this question also objection was taken, and it was allowed to be put by the Court only on the assurance of the pleader that it was correct. The fact that this second question was pressed, has been held by the lower Courts as aggravating the offence, but it seems to us that, if he had not put it, that fact would have been some evidence against his bona fides. These two questions form the subject matter of the charge of defamation, of which the accused, has been convicted.

(3.) In order to understand the case it is necessary to set out some further facts. Some time in September 1905 one Biranchi Singh, amongst others, was tried on a charge of dacoity before the Sessions Judge of Bhagulpur. His defence was an alibi and, in. support of it, he called and examined Mr. Savi as a witness The Court of Sessions, however, convicted Biranchi Singh holding as a matter of fact that, although there was no reason to doubt Mr. Savi's evidence, yet that evidence did not establish the alibi. On appeal this Court held that Mr. Savi's evidence, which had been believed by the Sessions Judge and also by this Court, did establish the alibi, and acquitted Biranchi Singh. The appellant, Upendra Nath Bagchi, had nothing to do with that case and apparently was entirely ignorant of what had happened in that case. This is an important feature to bear in mind.