Karu Singh and Others vs King-Emperor

Macpherson, J.—This rule has been issued to consider the conviction of the three petitioners u/s 500 of the Indian Penal Code and the sentence of fine of Rs. 25 imposed upon each of them.

The petitioners of whom Karu and Mainah. (otherwise Bhainath) are brothers, along with others, filed a suit in the Court of the Munsif of Gaya against Jhangi Mahton, his brother Anhach Mahton, Mt. Budhniand Mukhram Singh for a mortgage decree on a deed of 1919 said to be executed by the first two defendants in favour of the plaintiffs. In the heading of the plaint they described Defendant 3 Mt. Budhni as "zan dasta" or "kept woman" of Defendant 1, and in para. 5 of the plaint they set out that as the Defendant 3 is the kept woman of Defendant 1, and Defendants 1 and 2 have with a dishonest motive, as a precautionary measure and in order to derive undue advantage, executed a farzi deed of sale without consideration in respect of the mortgaged property, in the name and in favour of Defendant 3, the kept woman of Defendant 1 and of Defendant 4 a friend and creature of the latter, therefore they too are brought into the category of defendants.

Musammat Budhni who is 40 or 45 years of age and a widow for a quarter of a century, instituted criminal proceedings u/s 500, I.P.C., against the petitioners and alleged that the imputation in the plaint that she was kept woman of Jhangi Mahton was maliciously false and very harmful to her reputation and that in fact she had no interest whatever in the mortgaged property and had been made a defendant unnecessarily with ulterior motives, because she had purchased lands from the first defendant other than the mortgaged property.

The petitioners pleaded in defence that the complainant was in fact the concubine of Jhangi and that Jhangi in order to evade payment of the amount due to them had with that object sold some of his land to her, that under legal advice they had made Budhni defendant and that they stated a fact which they were entitled to state.

The petitioners attempted to prove their allegation that Budhni is the concubine of Jhangi, but the Subdivisional Magistrate held that the attempt had failed completely and that she is of good character. He further found that the allegation that Budhni was the kept woman of Jhangi Mahton was not made in good faith nor for the benefit of anybody. The petitioners, he held, had in fact made it because of resentment at transfer of some land by Jhangi to Budhni, which they considered was intended to defraud them, and their object clearly was to injure the reputation of the complainant.

Finding all the ingredients in the charge u/s 500 of defaming the complainant by describing her as the concubine of Jhagai Mahton to be established, he convicted and sentenced the petitioners already stated.

In support of the rule Mr. S.N. Roy does not challenge the findings on the facts. He contends however that the occasion was privileged and refers to several decisions of the Calcutta High Court in support of his contention. These decisions are all antecedent to the Full Bench decision in Satis Chandra Ckakrabarti Vs. Ram Dayal De, in which they were considered. The only decision of this Court on the question of privilege is Jagat Mohon Nath v. Kalipadu Ghosh AIR 1922 Pat 104 in which it was held in considering the case of a legal practitioner that the rules of the English common law apply to questions of civil liability for defamation in India. As to liability on the criminal side, there has, it is well known been diversity of opinion among the High Courts in India. It will serve no good purpose to consider them in detail. In my judgment criminal liability is determined exclusively by the provisions of the Indian Penal Code. The law is to my mind correctly set out in Kari Singh v. Emperor (1913) 40 Cal 433 and in Satish Chandra v. Ramdayal (1) already referred to which was cited with approval in the decision of this Court which I have mentioned. A defamatory statement whether on oath or otherwise, falls within Section 499, I.P.C., and is not absolutely privileged.

The question of importance is therefore that of good faith. In the present case it has been found and there is not the slightest doubt that the statement that the complainant was the kept woman of Jhangi is without foundation and that it was made maliciously because Budhni had, as the petitioners considered to their detriment, purchased some of the lands of Jhangi.

Following the decisions cited I hold that the petitioners were not absolutely privileged and that on the facts found the conviction is correct.

The application being without merits, this rule is discharged.