JUDGMENT
1. Mrs. Elizabeth Guthrie or Sen and H.N. Chatterjee, respectively the editor and the printer and publisher of a small weekly newspaper called “The Sketch” published at Dhanbad, appeal against their convictions under Section 500 of the Indian Penal Code on two charges of defamation and their sentences of fine.
2. It was admitted by appellants that articles headed “Curious Conduct of Police Sub-Inspector-Interesting Revelations” and “Facing the Music-By a Piping Jenny” appearing in Nos. 35 and 36 respectively of “The Sketch” dated August 8 and 15, 1932, are defamatory of the complainant, a Sub-Inspector of Police and the defence was that the statements made are true in substance and were made in good faith for the public good. The first appellant, who is 40 years of age and who landed in India for the first time (as is stated at the Bar) with her five children, several weeks after the statutory declaration by the second appellant on December 1931, and the start of “The Sketch”, holds herself out as responsible for the articles which had their origin in the prosecution of her husband, a lecturer at the School of Mines, on the report dated June 8, of the Sub-Inspector, on a charge of cycling at night without a light in Dhanbad and his conviction on August 3, 1932. The matter of the articles and the English in which they are written would seem to indicate that they are not her own composition and it may be that she is only a dummy editor. But, this point, if it is of any value, does not fall to be considered in this appeal.
3. The claim of the first appellant to be a European British subject and to be tried in accordance with the provisions of Chap. XXXIII of the Code of Criminal Procedure having been allowed, the Magistrate committed both accused to the Sessions. Under Section 446, the Court of Session is to try the case as if the accused had claimed to be tried in accordance with the provisions of Section 275 under which:
a majority of the jury shall, if the accused, Before the first juror is called and accepted so requires, consist, in the case of a European British subject, of persons who are Europeans or Americans, and the case of an Indian British subject, of Indians.
4. On behalf of the first appellant this claim was duly made, as the learned Sessions Judge notes in his heads of charge to the jury, and a jury believed to consist of three Eurpoeans and two Indian British subject was empanelled. This jury returned a majority verdict of guilty and the Judge recorded his agreement therewith and convicted both accused.
5. In support of the appeal Mr.K.B. Dutt has argued, as was open to him under Section 419(1), that the conviction is unsound on the merits and further, on the strength of an affidavit, that the trial was invalid by reason of the fact that the composition of the jury was not in accordance with law.
6. The argument against the validity of the trial had two branches. In the first place, it was contended that one of the Bengali jurors was the complainant’s wife’s uncle’s wife’s sister’s husband or, more briefly, the complainant’s uncle in-law had married the juror’s sister-in-law and that the complainant having failed to disclose the fact the accused was prejudiced. We are not prepared to say that the trial was invalid for this reason. But the other contention is more serious. It was alleged that only a minority of Europeans or Americans served on the jury, the second of the jurors empanelled as a European who may be designated Mr.M (which is not the initial of his name) being in fact Asiatic and not, as supposed, a European.
7. The point appeared to call for investigation. It is the case of all parties that Mr. M is not, an American and we so hold. The learned Government Advocate has contended that Mr. M is a European British subject as defined in Section 4(1)(i) of the Code and that that fact is sufficient to bring him within the category of European referred to in Section 275. The definition runs:
A European British subject means:
(i) Any subject of His Majesty of European descent in the male line born, naturalized or domiciled in the British Islands or any Colony; or.
(ii) Any subject of His Majesty who is the child or grandchild of any such person by legitimate descent.
8. A question might arise whether every person who is a European British subject under this definition is a European within the meaning of Section 275; but it is unnecessary to express an opinion upon it since it appears to us that Mr. M does not even come within the definition. Mr. M has appeared before us and has deposed that he is and that both has parents are Anglo-Indian, as that term is used in recent years in contradistinction to European, that he never saw his grandparents, that his father long ago mentioned to him that his paternal grandfather was a European sailor who came to India in the early sailing days and that he knows nothing more about his grandfather and nothing whatever of his paternal grandmother or of her marriage. The learned Government Advocate purposed to adduce the evidence of Mr. M’s father who is alive and apparently in this province, but after a postponement he has been constrained to inform the Court that he will not now do so. In these circum-stances the fact that in appearance Mr. M. is other than European and that his name does not sound European but the contrary, has some significance. We hold without the least hesitation that Mr. M cannot be said to satisfy the definition of European British subject and admittedly he is not a European within the meaning of Section 275 if he fails to do to. It is clear therefore that two at most of the five jurors were Europeans or Americans.
9. Upon this finding the Sessions trial was not legally consituted. The appeal must therefore be allowed. The convictions and sentences are set aside and as it has not been established that the conviction is unsound on the merits and as the parties have not compromised, as seemed possible at one stage, it is directed that the accused be now tried, with all reasonable expedition, in the Sessions Court at Purulia with a jury satisfying the provisions of Section 275 of the Code of Criminal Procedure.