Kanwal Lal Vs. State of Punjab 
INSC 275 (28 September 1962)
28/09/1962 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA IMAM, SYED JAFFER MUDHOLKAR, J.R.
CITATION: 1963 AIR 1317 1963 SCR Supl. (1)
Defamation-Accusing a person to be a prostitute-Statememt
made in complaint to Panchayat Officer-Whether protectedPanchayat Officer, if
had authority to take cognizance of offence-Whether statement made in the
interest of the maker-Punjab Gram Panchayat Act, 1952 (4 of 1953), ss. 38 and
42-Indian Penal Code, 1860 (Act XLV of 1860), s. 500 exceptions 8, 9.
The appellant a public servant, addressed a
communication to the Panchayat Officer alleging that the complainant was a
prostitute and that she should be removed from the house in which she was
living. He was prosecuted and convicted of the offence of defamation under s.
500 Penal Code. The appellant contended that he was protected by exceptions 8
and 9 to 500.
Held, that exceptions 8 and 9 to s. 500 were
not applicable to the case and that the appellant was rightly convicted.
Exception 8 was applicable only in cases
where the defamatory statement was contained in a complaint to a person who had
lawful authority over the person concerned in respect of the subject matter of
Prostitution was not an offence of which
cognizance could be taken under the Punjab Gram Panchayat Act, 1952. Besides s.
42 barred the Gram Panchayats from taking cognizance of any offence in which
either the complainant or the accused was a public servant.
Exception 9 applied to cases where the
imputation was made in good faith for the protection of the interest of the person
making it, or of any other person, or for the public good. Even assuming good
faith, exception 9 was not applicable merely on account of the imputation
having been made in the interest of the appellant. It was further necessary
that the person to whom the communication was made must have an interest in
protecting the person making it.
Besides the bona fides of the person making
the imputation, the person to whom the imputation is conveyed must have a
common interest with the person making it which is served by the communication.
480 Harrison v. Bush, (1855) 5 E. & B.
344 : 119 E.R. 509, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 106 of 1961.
Appeal by special leave from the judgment and
order dated May 11, 1961, of the Punjab High Court in Cr. R. No. 580 of 1961.
Naunit Lal, for the appellant.
Gopal Singh and P. D. Menon, for the
1962. September 28. The Judgment of the Court
was delivered by AYYANGAR, J.-This is an appeal by special leave against the
judgment of the High Court of Punjab by which a Criminal Revision filed against
an appellate order of the Additional Sessions judge, Ludhiana confirming the
appellant's conviction and sentence was dismissed in limine.
The facts giving rise to the appeal lie in a
very narrow compass. The appellant was prosecuted on a complaint filed by Mst.
Ram Rakhi of the offence of defamation under s. 500, I.P.C. The appellant and
Mst. Ram Rakhi were neighbours. The defamatory matter was contained in a
communication addressed by the appellant who is a member of the police force to
the District Panchayat Officer, Ludhiana. In this "application" the
appellant alleged that the complainant was a woman of loose character who was
having illicit connection with goondas, her paramours coming to her frequently
at nights and that her immoral activities reflected badly on the locality in
which the appellant lived. There is no doubt that this was grossly defamatory
of the complainant. The defence of the appellant substantially was that in
substance the allegations were true and that he was entitled to make this
application 481 to the Panchayat in order to seek the assistance of that body
for getting the complainant out of the locality and for this purpose he relied
upon the last paragraphs of the application which ran :
"Petty problems like this can be easily
solved by the village Panchayat instead of referring the case to the Court. It
is therefore requested that the Panchayat of village Sanghol (P. O. Sangho)
District Ludhiana may kindly be asked to take suitable action to end this
prostitution add after getting the house in which Shadi (father of the
complainant,) is residing at present, vacated from him." The learned
Magistrate considered a large volume of evidence that was led as regards the
plea of justification as well as of the qualified privilege' within exceptions
8 and 9 of s. 499, I.P.C., and rejecting the defence, convicted the appellant
of the offence charged and sentenced him to undergo rigorous imprisonment for
six months. The appellant filed an appeal which was dismissed by the Additional
Sessions judge and he recorded:
"I come to the conclusion that accused
Kanwal Lal was rightly convicted and sentenced by the Trial Court. 'the offence
against him is fully established. He deserves no mercy. He was employed in the
office of the Inspector General Police, Punjab Chandigarh and he tried to use
his office which he was holding simply to overawe the poor complainant and her
parents, just to get the possession of his house from them. The quantum of
sentence passed against the accused appears to be correct in view of his first
offence and youthful age." It was the revision filed against this judgment
that was dismissed in limine by the High Court.
482 There being no dispute about the
publication or of the published matter being defamatory being of a character
falling within s. 499, I.P.C., the only argument that was addressed before us
was based upon the case falling within Exceptions 8 and 9 to S. 499, I.P.C.
Exception 8 runs in these terms :
"It is not defamation to prefer in good
faith an accusation against any person to any of those who have lawful authority
over that person with respect to the subject-matter of accusation.
In order to establish a defence under this
exception the accused would have to prove that the person to whom the complaint
was made had lawful authority over the person complained against, in respect of
the subject-matter of the accusation. If the District Panchayat Officer or the
Panchayat had such lawful authority, the last paragraph of the offending
communication would have justified such a plea. But there is no basis at all
for this argument in view of the clear provisions of the Punjab Gram Panchayat
Act, 1952, under which statute alone Panchayats have jurisdiction. Chapter IV
of that Act deals with the Criminal jurisdiction of the Panchayat. Section 38
with which that Chapter opens enacts:
"The criminal jurisdiction of a Gram
Panchayat shall be confined to the trial of offences specified in Schedule
IA." Prostitution is not an offence under the Indian Penal Code and the
keeping of a disorderly or bawdy house is not an offence within Schedule 1 A to
which offences alone the criminal jurisdiction of Panchayats extends. If this
were not sufficient to negative any defence based upon Exception 8, reference
may be made to s. 42 of the Gram Panchayat Act which by its 1st sub-section
483 "Subject to the provisions of sub.s.
(3) no panchayat shall take cognizance of any offence under the Indian Penal
Code, 1860 in which either the complainant or the accused is a public servant.
So even if the complaint should be taken to
be a complaint of a publicnuisance it was doubly excluded from the jurisdiction
of the Panchayat since the appellant was a public servant. The defence based on
Exception 8 must therefore fail.
Nor is there more substance in the invocation
of the 9th exception. That exception runs:
"It is not defamation to make an
imputation on the character of another provided that the imputation be made in
good faith for the protection of the interest of the person making it, or of
any other person, or of the public good." Even if good faith be taken to
have been established, the imputation has to be made for the protection of the
interest of the person making it. Learned Counsel suggested that the terms of
the provision were satisfied since the appellant made the accusation to protect
his own interest. That is certainly not the meaning of the exception. It posits
that the person to whom the communication is made has an interest in protecting
the person making the accusation. In other words, besides the bona fides of the
person making the imputation, the person to whom the imputation is conveyed
must have a common interest with the person making it which is served by the
communication. This exception merely reproduces the principle laid down by Lord
Campbell, C. J., in Harrison v. Bush (1).
"A communication made bona fide upon any
subject matter in which the party communicating (1) (1855) 5 E. & B. 344,
348; 119 E. R. 509, 484 has an interest, or in reference to which he has a
duty, is privileged, if made to a person having a corresponding interest or
duty, although it contains criminatory matter which, without this privilege,
would be slanderous and actionable." The point of difference between
exceptions, 8 and 9 is that whereas in the former the person to whom the
complaint is made must have lawful authority to deal with the subject matter of
the complaint and take proceedings against that person, there is no such
requirement in exception 9 where it is sufficient if a communication is made to
a person for the protection of one's own interest in which the other also has
an interest. This is clearly brought out by the illustrations to the exception.
It cannot be seriously suggested that the
communication now in question satisfies this test.
The appellant was therefore properly
convicted of the offence and nothing was said about the sentence. The appeal
fails and is dismissed.