Jotindra Nath Mukharji and Others vs Radha Krishna Budhia

James, J.—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 u/s 500, Penal Code.

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 u/s 500, Penal Code. The two accused persons moved the Judicial Commissioner who has made a reference to this Court u/s 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 u/s 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.

The order of the Magistrate of the 14th February, summoning Rai Sahib Jotindra Nath Mukharji u/s 500, 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, 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.

If the 21 stacks had been re. moved by some unknown person, the Engineer, if he had any reason to believe that they had been removed at the instance of the complainant, was protected by the provisions of Section 499, when he reported his suspicions to the Chairman as the learned Judicial Commissioner had remarked. Mr. B.C. De points out, on this question of privilege that u/s 121 the Chairman of the Municipality may decline to produce the reports; but they are already on the record of the case, and if this action was to be taken by the Chairman it should have been taken in the first instance.

The learned Judicial Commissioner rightly lays some stress on the fact that in these proceedings the Engineer is likely to be harassed in a manner out of all proportion to the importance of the case, and that if public officers are to be prosecuted in this way for reports made to their superior officers the work of administration would be rendered very difficult.

I think that if I had been in the place of the Sub-divisional Magistrate, I would have dismissed the complaint u/s 203, Criminal P.C., on receiving the report from the Municipality, but the Sub-divisional Magistrate issued process, which he had jurisdiction to do and when process has once been issued the accused person can only be discharged u/s 253 or Section 259, Criminal P.C. The learned Judicial Commissioner has some ground for his apprehension that the Engineer was in danger of being unduly harassed by long drawn out (proceedings, The learned Sub-divisional Magistrate remarked after he had received the report of the Chairman:

A careful and sifting inquiry is necessary into these allegations as much in the interests of the parties as in those of the municipal administration in the town.

The prospect of having to stand on his defence during an interminable period while a roving enquiry is made into the affairs of this Municipality, is one which might well be regarded as appalling by the Municipal Engineer. It appears to be clear that the strictest care must be exercised by the trying Magistrate to confine the proceedings in this trial within the limits of relevance. The Magistrate is not concerned with the manner in which the Municipality conducts its affairs, of how its members are divided among themselves, of how the stock-books are kept, of whether road-metal ought to be stacked before tenders are accepted or any matters of that kind. The Municipal Engineer in making his report remarked that, practically speaking the metal which had been removed had been stolen. It is not necessary for the purposes of this case to inquire into the question of how far this remark may be held to have been justified. The views of the Municipal Engineer on the question of the exact stage at which title to stacked road-metal vests in the Municipality, or on the question of whether title to this road metal had or had not vested in the Municipality need not be considered by the learned Magistrate. the report was to the effect that metal which had already been entered in the stock- book, whether it had been properly measured or not, had been improperly removed. In order to ascertain whether this report was defamatory in the sense in which the term is used in Section 499, Penal Code, the Magistrate should endeavour to ascertain in the first place whether 12 of the stacks had been removed without the concurrence of the Engineer.

If the Magistrate has been satisfied that 12 stacks had been thus removed, the accused must be acquitted. If the Magistrate is not satisfied that the 12 stacks had been removed, but the accused is able to show that he had reasonable and probable cause for believing that they had been improperly removed, he will be entitled to acquittal on the ground that his report was such as it was his duty to make, privileged by virtue of the provisions contained in Section 499, Penal Code.

If the stacks had not been removed and if the accused is unable to show that he had reasonable and probable cause for believing that they had been removed his report would amount to defamation. There are the points to be determined at the trial, and the Magistrate should see that evidence is confined to these relevant questions. The reference is accordingly accepted in the case of Rai Sahib Jotindra Nath Mukharji and discharged in the case of Babu Satish, Chandra Ghosh.