Jainarain Singh vs Emperor

Harries, C.J.—The petitioner Jainarain Singh was convicted by the learned Subdivisional Magistrate of Hajipur of the offence of defamation and sentenced to undergo a term of four months'' simple imprisonment and to pay a fine of Rs. 100 and in default of payment to undergo a further month''s simple imprisonment. He appealed and his appeal was heard by the learned Additional Sessions Judge of Muzaffarpur. The latter affirmed the conviction but reduced the sentence to one of two months'' simple imprisonment and a fine of Rs. 50. In default of payment of this, he was sentenced to a further term of one month''s rigorous imprisonment.

The facts of this case are somewhat extraordinary. It appears that an anonymous letter was received by the Subdivisional Officer of Hajipur making serious allegations about one Bechunarain Singh of village Chak Mohammad. In this letter, it was said that Bechunarain Singh had found his servant boy Dhanukdhari in bed with his daughter Janki. This had made him so angry that he had caused Dhanukdhari to be severely assaulted in consequence of which the latter had died. There was a further allegation that Bechunarain Singh had caused the body to be removed to cover up all evidence of the crime. The Subdivisional Officer very naturally forwarded this petition to the Divisional Inspector of Police for immediate inquiry and report. On 1st October 1939 the Divisional Inspector examined the petitioner Jainarain. It is to be observed that Jainarain did not appear voluntarily before the Divisional Inspector but only appeared after the chaukidar had been sent to bring him to the police officer. Unfortunately the evidence is far from clear as to what happened when Jainarain appeared. The Divisional Inspector admits that he made no record of any question asked to Jainarain and further made no record of what Jainarain told him. In examination-in-chief the Divisional Inspector merely stated the substance of what Jainarain is alleged to have said to him; but in cross-examination he attempted to give verbatim the words used by Jainarain. The learned Judge has translated the words which the Divisional Inspector in cross-examination attributed to Jainarain and the words are as follows:

I have come to know that Dhanukdhari was found in the same bed with the daughter of Bechunarain. Bechunarain and his men severely assulted him in consequence of which he died. After his death whereto they have caused disappearance of the dead body he has not come to know.

This statement, it is said, was made by Jainarain to the Divisional Inspector in the presence of some police officers and other persons. There is no doubt whatsoever that nothing had happened to Dhanukdhari as he appeared a few days afterwards hale and hearty without any trace of injury, on his body. Somehow or other Dr. Bechunarain was informed of the answer alleged to have been given to the police by Jainarain and consequently these proceedings were instituted. The Divisional Inspector in the witness box was at pains to assert that the inquiry which he was conducting was a confidential one. If that be so, it is somewhat strange that Dr. Bechunarain was given the precise form of words which Jainarain is alleged to have used. If this inquiry was originally a confidential one, some one appears to have been guilty of a breach of confidence by informing other persons concerned not only of the substance of the allegations made but also of the precise words. Be that as it may Dr. Bechunarain feeling himself aggrieved brought these proceedings. There can be no doubt that the original allegation made against Dr. Bechunarain in the anonymous letter was a very serious one. Happily the whole matter was cleared up and there is now not the slightest reflection against the character and integrity of Dr. Bechunarain.

The question which has to be decided is whether on the materials before the Courts the petitioner could properly be convicted of the offence of defamation. In my judgment it is impossible to sustain the conviction upon the materials on the record. Mere publication of an imputation concerning any person does not of itself constitute defamation. That offence is defined as follows in Section 499, Penal Code:

Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation o� such person, is said except in the cases hereinafter excepted, to defame that person.

Then follow a large number of exceptions. From this definition it is clear that a person is not guilty of defamation unless he intends that the words spoken should harm a person or knows or has reason to believe that his words would harm such persons. In the present case much depends upon the actual question which Jainarain was asked by the police and the form of that question is not in evidence.

The Divisional Inspector stated that Jainarain in answer began his statement with the words ''ham ko malum hua hai''; and these words suggest that he was asked not what he knew of his own knowledge but what he had heard. The statement made by Jainarain, if the Divisional Inspector''s evidence is to be accepted, suggests that he was stating what he had heard, not what he knew to be true. If Jainarain was merely asked if he had heard anything and in good faith had stated merely what he had heard, it is difficult to hold that such would amount to defamation having regard to the particular circumstances of this case, namely, that he was being interrogated by the police in what was a highly confidential inquiry. If he was asked if he ''had heard something, he might well have said what he had heard without intending to harm Dr. Bechunarain or without realising that such might harm him. In any event, it is difficult to base a conviction for a defamation when the precise words uttered by the accused are not before the Court.

As I have stated, no record of Jainarain''s answer was kept and as the Divisional Inspector first gave evidence two months after the occurrence he did not pretend to tremember what the words were. In cross-examination three and a half months after the occurrence he gave verbatim what Jainarain is alleged to have said. It is very difficult to accept such evidence having regard to the lapse of time. Police officers of this kind are always taking statements, and I for one find it quite impossible to accept the Divisional Inspector''s evidence given three and a half months afterwards as an accurate statement of what Jainarain said. Where a charge of defamation is based on an answer to a question much turns upon the precise form of question and the precise form of the answer. If a Court is not satisfied on these matters, it is impossible to maintain a conviction. It is not sufficient for a Court to come to the conclusion that substantially something or other was said. The Court must be satisfied that certain words were used.

It was contended in this case that Jainarain made his statement on a privileged occasion. Some Courts have gone to the length of holding that a witness can claim absolute privilege; but Dr. Sen has not gone as far as that. He has contented himself by claiming privilege. In my view it is unnecessary in this case to consider these questions of law. Upon the state of the evidence it is impossible to say what precisely Jainarain stated. If he merely answered a question truthfully and honestly, then in my view he could not be guilty of defamation.

On the other hand, if he intended to harm Dr. Bechunarain or knew that what he said would harm him other considerations would arise. It is impossible to determine these questions without knowing precisely what he was asked and precisely what he answered. This is an unfortunate case in many ways. Serious allegations were made by somebody against Dr. Bechunarain, but happily those allegations have proved to be unfounded.

In my view, however, Jainarain cannot be said to have committed an offence, and I would, therefore, set aside his conviction and sentence and make this rule absolute. If the fine or any portion of it has been paid, it should be refunded.

Shearer J.

I agree.