Sewakram Sobhani Vs. R.K. Karanjia,
Chief Editor, Weekly Blitz & Ors [1981] INSC 104 (1 May 1981)
SEN, A.P. (J) SEN, A.P. (J) REDDY, O.
CHINNAPPA (J) ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1514 1981 SCR (3) 627 1981
SCC (3) 208 1981 SCALE (1)851
ACT:
Penal Code-Section 499-Ninth exception-Scope
of- Respondent made imputations regarding character of appellant in an article
published in his journal purporting to be based on confidential report of a
high official of State Government-Government claimed privilege in regard to
report- Magistrate proceeded to record plea of accused without seeing
report-Government waived privilege before High Court- In revision High Court
held the news item justified on the basis of report-High Court, whether
competent to quash the order of Magistrate.
HEADNOTE:
A news item published in the Blitz weekly of
which the respondent was the Editor, stated that the appellant enticed a female
detenu who along with him, was detained in the Central Jail under the
Maintenance of Internal Security Act and that she had conceived through him and
that on getting released on parole she had the pregnancy terminated. It was
further stated that a confidential enquiry conducted by a senior officer of the
Home Department revealed that it was the appellant who was responsible for the
detenu's pregnancy.
On release from jail the appellant lodged a
criminal complaint against the respondent. Before the Magistrate the respondent
prayed that the report of the Enquiry Officer be sent for. But the report could
not be obtained because the State Government claimed privilege in respect of
that report. When the Magistrate proceeded to record the plea of the accused
under section 251 of the Code of Criminal Procedure, the respondent requested
that his plea be recorded only after the enquiry report was produced; but the
Magistrate rejected the request.
The respondent thereupon filed a revision
before the High Court for setting aside the order of the Magistrate.
Waiving privilege the State Government
produced a copy of the enquiry report before the High Court.
A single Judge of the High Court quashed the
proceedings on the view that the respondent's case clearly fell within the
ambit of the ninth exception to section 499, I.P.C. because, according to him,
the publication had been made honestly in the belief of its truth and also upon
reasonable ground for such belief, after the exercise of such means to verify
its truth as would be taken by a man of ordinary prudence under like
circumstances.
On the question whether the High Court was
right in quashing the order of the Magistrate, remanding the case to the
Magistrate.
628 (Per majority: Chinnappa Reddy and A.P.
Sen JJ-Baharul Islam J dissenting)
HELD: The order passed by the High Court
should be set aside. The Magistrate should record the plea of the accused under
section 251 Cr. P.C. and thereafter proceed with the trial according to law.
(Per Chinnappa Reddy, J.) To attract the
ninth exception to section 499, I.P.C.
the imputations must be shown to have been made
(1) in good faith and (2) for the protection of the person making it or of any
other person or for the public good. The insistence of the section is upon the
exercise of due care and attention. The standard of care and attention must
depend on the circumstances of an individual case, the nature of imputation,
the need and the opportunity for verification and so on. In every case it is a
question of fact to be decided on its particular facts and circumstances. [631
A-B] Harbhajan Singh v. State of Punjab, [1965] 3 SCR 232 @ 244, Chaman Lal v.
The State of Punjab [1970] 3 SCR 913 @ 916 and 918.
Several questions may arise for consideration
depending on the stand taken by the accused at the trial and how the
complainant proposed to demolish the defence. In the instant case the stage for
deciding these questions had not arrived yet. Answers to such questions, even
before the plea of the accused was recorded, could only be a priori
conclusions.
[632 H] The respondent's prayer before the
High Court was to quash the Magistrate's order and not to quash the complaint
itself as the High Court has done. But that was only a technical defect which
need not be taken seriously in an appeal under Article 136 of the Constitution
where the Court is concerned with substantial justice and not with shadow
puppetry. [630 G] (Per A.P. Sen J.) The order of the High Court quashing the
prosecution under section 482 of the Code of Criminal Procedure is wholly
perverse and had resulted in manifest miscarriage of justice. The High Court
has pre-judged the whole issue without a trial of the accused persons. The
matter was at the state of recording the pleas of the accused under section 251
Cr. P.C. The circumstances brought out clearly showed that the respondent was
prima facie guilty of defamation punishable under section 500 of the Indian
Penal Code unless covered by one of the exceptions of section 499 Indian Penal
Code. [635 E-F] The burden to prove that his case would come within the ninth
exception to section 499, namely, that the imputation was in good faith and was
for the protection of the interests of the person making it or of any other
person or for the public good was on the respondent. All that the respondent
prayed for was that the Magistrate should not proceed to record his plea under
section 251 Cr. P.C. without perusing the enquiry report. There was no
application for quashing the prosecution itself. [636 F; 637 C] 629 The enquiry
report in respect of which the Government claimed privilege had by itself no
evidentiary value. The contents of that report could not be made use of unless
the facts were proved by evidence aliunde. The report being per se defamatory,
it was for the accused to plead the ninth exception in defence and discharge
the burden of proving good faith which implies the exercise of due care and
caution and to show that the attack on the character of the appellant was for
the public good. [637 E; G; H] Sukro Mahto v. Basdeo Kumar Mahto and Anr.
[1971] Supp. SCR 329 at 332, Harbhajan Singh v. State of Punjab [1965] 3 SCR
235, Chaman Lal v. State of Punjab [1970] 3 SCR 913, referred to.
The High Court appears to be labouring under
an impression that journalists enjoyed some kind of special privilege.
Journalists are in no better position than any other person. Even the truth of
an allegation does not permit a justification under the first exception unless
it is proved to be in the public good. The question whether or not it was for
public good is a question of fact like any other relevant fact in issue. If they
make assertions of facts as opposed to comments on them, they must either
justify these assertions or in the limited cases specified in the ninth
exception, show that the attack on the character of another was for the public
good or that it was made in good faith. [638 G-H] Dr. N.B. Khare v. M.R. Masani
and Ors., ILR 1943 Nag.
347, Arnold v. King Emperor LR (1913-14) 41
Ind. App. 149 at 169, referred to.
(Per Baharul Islam J.) The Court did not
commit any error in quashing the appellant's complaint. [646 E] The High
Court's judgment justifies the factual submission of the respondents that their
application was under section 482 as well as under sections 397 and 401 of Cr.
P.C. and that they claimed and canvassed the protection under the ninth exception
to section 499, I.P.C. The omission in the prayer portion of a petition,
particularly in a criminal case, is not fatal. The High Court, in its
revisional jurisdiction, can always grant suitable relief justified by law as
well as facts and circumstances of a particular case. [641 H; 642 D] The
definition of "good faith" which is couched in negative terms
indicates that lack of good faith has been made a part of the offence which the
prosecution has to establish beyond reasonable doubt. On the other hand, proof
by the accused of the report to be an authentic document is enough. It would
create a doubt in the mind of the Court as to the lack of "good
faith" on the part of the accused. [644 F-G] If on a complaint made by a
citizen alleging laxity in the observance of jail rules, if the report
submitted by a high Government official on the basis of an enquiry conducted by
him was for public good and if the respondents had reasons to believe its
contents to the true, they will be protected under the ninth exception even if
the burden of proof of good faith is on the accused. Good faith need not be
proved beyond reasonable doubt. [645 B] The report of the enquiry officer was
exhaustive, reasoned and was based on evidence. The report leads one to believe
the imputations. If that be so, it 630 cannot be said that the respondents
published the report or its summary without due care and attention. This
establishes good faith under the ninth exception to section 499.
Therefore, the publication obviously was for
public good.
[646 B-C] In the instant case even if the
findings of the report be proved to be false, the respondents would be
protected.
Sending back the case to the Magistrate would
be an exercise in futility and abuse of the process of the criminal court as
the High Court has pointed out. [646 D-E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 543-545 of 1979.
Appeals by special leave from the judgment
and order dated the 15th April, 1978 of the Madhya Pradesh High Court in
Criminal Revision No. 701/77, 105/78 & 103/78 respectively.
H.K. Puri for the Appellant.
R.K. Garg, Sunil Kumar Jain and V.J. Era for
Respondents Nos. 1, 2, 5 & 6.
S.K. Gambhir and Vijay Mansaria for the
State.
The following Judgments were delivered
CHINNAPPA REDDY, J. I agree with my brother A.P. Sen that the order passed by
the High Court should be set aside and that the Magistrate should be directed
to record the plea of the accused under Sec. 251 Criminal Procedure Code and
thereafter, to proceed with the trial according to law.
The facts leading to these appeals have been
stated in the judgments of both my brethren A.P. Sen and Baharul Islam and it
is unnecessary for me to state them over again.
The prayer in the application before the High
Court was merely to quash the order dated November 30, 1977 of the learned
Chief Judicial Magistrate, Bhopal and not to quash the complaint itself as the
High Court has done. But, that was only a technical defect and we do not take
serious notice of it in an appeal under Art. 136 of the Constitution where we
are very naturally concerned with substantial justice and not with shadow
puppetry. The position now is this: The news item in the Blitz under the
caption 'MISA Rape in Bhopal Jail' undoubtedly contained serious imputations
against the character and conduct of the complainant. In order to attract the
9th Exception to Sec. 499 of the Indian Penal Code, the imputations must be
shown to have been made (1) in good 631 faith, and (2) for the protection of
the person making it or of any other person or for the public good. 'Good
Faith' is defined, in a negative fashion, by Sec. 52 Indian Penal Code as
follows: "Nothing is said to be done or believed in 'Good faith' which is
done or believed without due care and attention". The insistence is upon
the exercise of due care and attention. Recklessness and negligence are ruled
out by the very nature of the definition. The standard of care and attention
must depend on the circumstances of the individual case, the nature of the
imputation, the need and the opportunity for verification, the situation and
context in which the imputation was made, the position of the person making the
imputation, and a variety of other factors. Good faith, therefore is a matter
for evidence. It is a question of fact to be decided on the particular facts
and circumstances of each case. So too the question whether an imputation was
made for the public good. In fact the 1st Exception of Sec. 499 Indian Penal
Code expressly states "Whether or not it is for the public good is a
question of fact". 'Public Good' like 'Good faith' is a matter for
evidence and not conjecture.
In Harbhajan Singh v. State of Punjab, this
Court observed (at p. 244):
"Thus, it would be clear that in
deciding whether an accused person acted in good faith under the Ninth
Exception, it is not possible to lay down any rigid rule or test. It would be a
question to be considered on the facts and circumstances of each case...what is
the nature of the imputation made, under what circumstances did it come to be
made; what is the status of the person who makes the imputation; was there any
malice in his mind when he made the said imputation; did he make any enquiry
before he made it;
are there reasons to accept his story that he
acted with due care and attention and was satisfied that the imputation was
true? These and other considerations would be relevant in deciding the plea of
good faith made by an accused person who claims the benefit of the Ninth
Exception".
Again in Chaman Lal v. The State of Punjab
this Court said (at p. 916):
632 "In order to establish good faith
and bona fide it has to be seen first the circumstance under which the letter
was written or words were uttered; secondly, whether there was any malice;
thirdly, whether the appellant made any enquiry before he made the allegations;
fourthly, whether there are reasons to accept the version that he acted with
care and caution and finally whether there is preponderance of probability that
the appellant acted in good faith".
Later the Court said (at p. 918):
"Good faith requires care and caution
and prudence in the background of context and circumstances. The position of
the person making the imputation will regulate the standard of the person
making the imputation will regulate the standard of care and caution".
Several questions arise for consideration if
the Ninth Exception is to be applied to the facts of the present case.
Was the Article published after exercising
due care and attention? Did the author of the article satisfy himself that there
were reasonable grounds to believe that the imputations made by him were true?
Did he act with reasonable care and a sense of responsibility and propriety?
Was the article based entirely on the report of the Deputy Secretary or was
there any other material before the author? What steps did the author take to
satisfy himself about the authenticity of the report and its contents? Were the
imputations made rashly without any attempt at verification? Was the imputation
the result of any personal ill will or malice which the author bore towards the
complainant? Was it the result of any ill will or malice which the author bore
towards the political group to which the complainant belonged? Was the article
merely intended to malign and scandalise the complainant or the party to which
he belonged? Was the article intended to expose the rottenness of a jail
administration which permitted free sexual approaches between male and female
detenus? Was the article intended to expose the despicable character of persons
who were passing off as saintly leaders? Was the article merely intended to
provide salacious reading material for readers who had a peculiar taste for
scandals? These and several other questions may arise for consideration,
depending on the stand taken by the accused at the trial and how the
complainant proposes to demolish the defence. Surely the stage for deciding
these questions has not arrived yet.
Answers to these questions at this stage,
even before the plea of the 633 accused is recorded can only be a priori
conclusions. 'Good faith' 'public good' are, as we said, questions of fact and
matters for evidence. So, the trial must go on.
SEN, J. This appeal, by special leave, is
directed against an order of the Madhya Pradesh High Court dated April 15, 1978
quashing the prosecution of the respondent, R.K. Karanjiya, Chief Editor,
Blitz, for an offence under s.
500 of the Indian Penal Code for publication
of a news-item in that paper which was per se defamatory, on the ground that he
was protected under Ninth Exception to s. 499 of the Code.
During the period of Emergency the appellant,
who is a senior lawyer practising at Bhopal, was placed under detention under
s.3 (1) (a) (ii) of the Maintenance of Internal Security Act, 1971 and was
lodged in the Central Jail, Bhopal. There were several other detenus belonging
to the opposition parties lodged along with him in the same jail, including
three lady detenus, viz., Smt. Uma Shukla, Smt. Ramkali Misra, Advocate and
Smt. Savitha Bajpai, later State Minister, Public Works Department. The husband
of Smt. Uma Shukla, a practising advocate at Bhopal, was not detained. Smt.
Shukla was released on parole for a week between June 10 and 18, 1976. On her
return to the jail it was found that she had conceived. She was examined on
July 30, 1976, by a lady doctor, Dr. (Mrs) N.C. Srivstava, Woman Asst. Surgeon
and the pregnancy was reported to be six weeks old. Smt. Shukla was again
released on parole in the month of August 1976 and on August 24, 1976, she got
the pregnancy terminated by Dr. (Mrs) Upadhayay at the Zanana Hamidia Hospital,
Bhopal with the written consent of her husband under s.3 of the Medical
(Termination of Pregnancy) Act, 1976.
While the order of detention of the appellant
was still in operation, there was an ex parte confidential enquiry held by Shri
S.R. Sharma, I.A.S. Deputy Secretary (Home) Government of Madhya Pradesh, into
the circumstances leading to the pregnancy of Smt. Shukla. The Enquiry Officer
by his report dated November 3, 1976, apparently held that the pregnancy was
due to illicit relations between the appellant and Smt. Shukla, during their
detention in the Central Jail.
On December 25, 1976, the Blitz, in its three
editions in English, Hindi and Urdu simultaneously flashed a summary of the
report and the story as given out was that (i) there was a mixing of male and
female detenus in the Central Jail, Bhopal, (ii) the appellant had the
opportunity and access to mix with Smt. Shukla freely, and (iii) Smt. Shukla
became pregnant through the 634 appellant. The news-item was per se defamatory.
It is somewhat surprising that the Enquiry Report, which was a document of
highly confidential nature, should have found its way to the Press.
With the revocation of Emergency, the
appellant along with the other political detenus was released from detention.
On his release, the appellant lodged a criminal complaint for defamation
against the respondent, R.K. Karanjia. The respondent, on appearing before the
Magistrate, moved an application under s. 91 of the Code of the Criminal
Procedure, 1973, praying that the report of the Enquiry Officer be sent for as
it was likely to be lost or destroyed. On August 23, 1976 the learned
Magistrate allowed the application and directed that the report with the
concerned file be produced. The State Government, however, did not comply with
the direction and by an application dated December 31, 1977, claimed privilege
in respect of the Enquiry Report which still awaited consideration. On October
29, 1977 when the case was fixed for recording the plea of the accused under s.
251 of the Code, the respondent moved an application stating that the plea
should be recorded only after the Enquiry Report was produced. The learned
Magistrate by his order dated November 30, 1977, rejected the said application
of the respondent as to the summoning of the records and directed the accused
persons to appear in person or through counsel for explaining to them the
substance of the accusation and also for recording their pleas.
Thereafter, the respondent filed a revision
before the High Court under s. 397 of the Code for setting aside the order of
the learned Magistrate and alternatively under s. 482 of the Code, if it were
held to be an interlocutory order. The revision was heard by a learned Single
Judge and it appears that the Government Advocate made available a copy of the
Enquiry Report for the perusal of the learned Judge. The learned Judge by his
order dated April 15, 1978, quashed the proceedings on the ground that the
respondent's case "clearly falls within the ambit of exception 9 of
section 499 of the Indian Penal Code". In reaching that conclusion, he
observed that "it would be abuse of the process of the court if the trial
is allowed to precede which ultimately would turn out to be a vexatious
proceeding". The reasoning advanced by him was as follows:
The real question to ask is, did the applicants
publish the report for public good, in public interest and in good faith? My
answer is in the affirmative. It was a publication 635 of a report for the
welfare of the society. A public institution like prison had to be maintained
in rigid discipline; the rules did not permit mixing of male prisoners with
female prisoners and yet the report said the prison authorities connived at
such a thing, a matter which was bound to arouse resentment and condemnation.
The balance of public benefit lay in its publicity rather than in hushing up
the whole episode.
Further, there was good faith in the
publication. The source on which the publishers acted was the proper source on
which they were entitled to act and they did so with care and circumspection.
The report further shows that the publication had been honestly made in the
belief of its truth and also upon reasonable ground for such a belief, after
the exercise of such means to verify its truth as would be taken by a man of
ordinary prudence under like circumstances.
(emphasis added) It is somewhat strange that
the learned Judge should have made public the contents of a document in respect
of which the State Government claimed privilege.
The order recorded by the High Court quashing
the prosecution under s. 482 of the Code is wholly perverse and has resulted in
manifest miscarriage of justice. The High Court has pre-judged the whole issue
without a trial of the accused persons. The matter was at the stage of
recording the plea of the accused persons under s. 251 of the Code.
The requirements of s. 251 are still to be
complied with.
The learned Magistrate had to ascertain
whether the respondent pleads guilty to the charge or demands to be tried. The
circumstances brought out clearly show that the respondent was prima facie
guilty of defamation punishable under s. 500 of the Code unless he pleads one
of the exceptions to s. 499 of the Code. The offending article which is per se
defamatory, is as follows:
MISA RAPE IN BHOPAL JAIL (By Blitz
Correspondent).
Blitz: A shocking sex scandal involving a top
RSS leader of M.P. was discussed at a secret meeting of Jan Sangh MLAs and MPs
here recently. The alleged escapades of 55 years old Sewakram Sobhani, a close
confidant of RSS Chief Bhausaheb Devras, with the young wife of another RSS man
in the Bhopal Central Jail, where both were detained under MISA, have rocked
RSS Jan Sangh circles of the State.
636 According to a report submitted to the
State Government by a Deputy Secretary in the Home Deptt. who inquired into the
grisly affair, Sobhani was reportedly responsible for making Mrs. Uma Shukla,
22 year old wife of a lawyer Yogesh Shukla, pregnant.
Abortion? When this was discovered she was
quietly released on parole and, at her own request, taken for abortion to the
Sultania Zanana Hospital. After discharge she refused to rejoin her husband but
stayed during the remaining period of her parole in the hide-out of the
'total-revolutionaries' in the Professor's Colony. She returned to jail later
and was transferred to the Hoshangabad Jail, while Sobhani was sent to the
Raipur Central Jail.
The Official report throws light on how
Sobhani allegedly enticed Mrs. Shukla with the help of a high official of the
Bhopal Central Jail despite a ban on contacts between male and female detenus.
The jail official, himself a close sympathiser of the RSS allowed Sobhani to
meet her frequently in his office and their love sessions were in his anteroom.
Yogesh Shukla has made a representation to the State Government alleging that Sobhani
had committed adultery with his wife and demanded action against the jail
authorities for permitting a "rape" of his wife.
It is for the respondent to plead that he was
protected under Ninth Exception to s. 499 of the Code. The burden, such as it
is, to prove that his case would come within that exception is on him. The
ingredients of the Ninth Exception are that (1) the imputation must be made in
good faith, and (2) the imputation must be for the protection of the interests
of the person making it or any other person or for the public good.
We are completely at a loss to understand the
reasons which impelled the High Court to quash the proceedings. The respondent,
in his revision directed against the order of the learned Magistrate dated
November 30, 1977, asserted in paragraph 5 that the case pre-eminently a fit
case for quashing the impugned order either in the revisional jurisdiction of
the High Court or in the exercise of its inherent powers under s. 482 of the
Code to prevent the abuse of 637 the process of law and to secure the ends of
justice. The prayer made in the revision was in these terms:
The applicants pray that the impugned order
be quashed and the learned Magistrate be directed to persue the report which he
has sent for under section 91, Criminal Pro. Code and pass suitable orders
according to law.
All that the respondent wanted is that
learned Magistrate should not proceed to record the plea of the accused persons
under s. 251 of the Code without perusing the Enquiry Report under s. 91 of the
Code. There was no application made before the High Court under s. 482 of the
Code for quashing the prosecution itself. The averment contained in paragraph 4
that the Blitz only published a concise summary from the findings reached by
the Deputy Secretary (Home) who was the Enquiry Officer appointed by the
Government and, therefore, it was the duty of the learned Magistrate, to go
through the report for himself and hold that no accusation had been made and
the question of explaining it to the accused did not arise and the proceedings
were liable to be dropped because no ingredients constituting an offence under
s. 500 of the Code had been made out, must be read in conjunction with
paragraph 5 and in support of the limited prayer made in revision. This cannot
be construed as invoking the High Court's powers under s. 482 of the Code for
quashing the whole proceedings.
We have considerable doubt about the
propriety of the High Court making use of the Enquiry Report which has no
evidentiary value and in respect of which the Government claimed privilege. The
application made by the Government claiming privilege still awaited
consideration. While the Government claimed privilege at one stage, it appears
to have waived the claim and produced the Enquiry Report and made the contents
public. There was no factual basis for the observations made by the High Court
underlined by me, except the Enquiry Report. The contents of the Enquiry Report
cannot be made use of unless the facts are proved by evidence aliunde. There is
also nothing on record to show that the accused persons made any enquiry of
their own into the truth or other-wise of the allegations or exercised due care
and caution for bringing the case under the Ninth Exception. The Enquiry Report
cannot by itself fill in the lacunae.
A bare perusal of the offending article in
Blitz shows that it is per se defamatory. There can be no doubt that the
imputation 638 made would lower the appellant in the estimation of others.
It suggested that he was a man devoid of
character and gave vent to his unbridled passion. It is equally defamatory of
Smt. Shukla in that she was alleged to be a lady of easy virtue. We need not
dilate on the matter any further. It is for the accused to plead Ninth
Exception in defence and discharge the burden to prove good faith which implies
the exercise of due care and caution and to show that the attack on the
character of the appellant was for the public good.
In Sukro Mahto v. Basdeo Kumar Mahto &
Anr this Court observed:
The ingredients of the Ninth Exception are
first that the imputation must be made in good faith;
secondly, the imputation must be for
protection of the interest of the person making it or of any other person or
for the public good. Good faith is a question of fact. So is protection of the
interest of the person making it. Public good is also a question of fact.
After referring to the two earlier decisions
in Harbhajan Singh v. State of Punjab and Chaman Lal v. State of Punjab the
Court held that there must be evidence showing that the accused acted with due
care and caution. "He has to establish as a fact that he made enquiry
before he made the imputation and he has to give reasons and facts to indicate
that he acted with due care and attention and was satisfied that the imputation
was correct. The proof of the truth of the statement is not an element of the
Ninth Exception as of the First Exception to s. 499. In the Ninth Exception the
person making the imputation has to substantiate that his enquiry was attended
with due care and attention and he was thus satisfied that the imputation was
true." The High Court appears to be labouring under an impression that
journalists enjoyed some kind of special privilege, and have greater freedom
than others to make any imputations or allegations, sufficient to ruin the
reputation of a citizen. We hasten to add that journalists are in no better
position than any other person. Even the truth of an allegation does not permit
a justification under First Exception unless it is proved to be in the public
good. The question 639 whether or not it was for public good is a question of
fact like any other relevant fact in issue. If they make assertions of facts as
opposed to comments on them, they must either justify these assertions or, in the
limited cases specified in the Ninth Exception, show that the attack on the
character of another was for the public good, or that it was made in good
faith: per Vivian Bose, J. in Dr. N.B. Khare v. M.R. Masani and Ors.
As the matter is of great public importance,
it would, perhaps, be better to quote the well-known passage of Lord Shaw in
Arnold v. King Emperor (2) The freedom of the journalist is an ordinary part of
the freedom of the subject, and to whatever lengths the subject in general may
go, so also may the journalist, but, apart from statute law, his privilege is
no other and no higher. The responsibilities which attach to this power in the
dissemination of printed matter may, and in the case of a conscientious
journalist do, make him more careful: but the range of his assertions, his
criticisms, or his comments, is as wide as, and no wider than, that of any
other subject.
No privilege attaches to his position.
For these reasons, we must set aside the
order passed by the High Court and direct the Magistrate to record the plea of
the accused persons under s. 251 of the Criminal Procedure Code, 1973 and
thereafter, to proceed with the trial according to law.
BAHARUL ISLAM, J. Had there been no
subsequent development after the impugned judgment of the High Court, I could
have persuaded myself to agree to the order proposed by my Brother Sen, J., but
after the Inquiry Report has been released by the Government and placed before
us I regret my inability to agree to the order of sending back the case to the
Magistrate as proposed by my Brother, and proceed to give my own judgment.
2. The facts material for the purpose of
disposal of these appeals may be stated thus: During the period of Emergency
between June 1975 and March 1976 the appellant, Shri Sewakram Sobhani, an
advocate, was one of the detenus under the Main- 640 tenance of Internal
Security Act, 1976 (hereinafter 'MISA') and lodged in the Bhopal Central Jail.
There were also three women detenus including Smt. Uma Shukla and Smt. Ramkali
Mishra, Advocate. The husband of Smt. Uma Shukla was a practising advocate at
Bhopal. He was not a detenu. Smt. Uma Shukla became pregnant while in detention
in the aforesaid Central Jail and abortion was carried out in the month of
August, 1976 in the Zanana Hamidi Hospital to relieve her of the pregnancy.
This circumstance created an uproar and an inquiry into the affairs had to be
held by Shri S.R. Sharma, Dy. Secretary (Home), Government of Madhya Pradesh,
(hereinafter 'Sharma') who submitted his report dated 7.10.1976 to the
Government.
3. Respondent No. 1 is the Chief Editor of
the Blitz and respondent No. 5 was, at the relevant time, Bhopal Correspondent
of the Blitz. Respondents 2, 3 and 4 are persons connected with the Blitz
Weekly publication. The Blitz weekly is published in three languages, viz.,
English, Hindi and Urdu. The Blitz weekly dated 25.12.76 published a news item
purported to be a summary of the report submitted by Sharma in its Urdu and
Hindi editions. The appellant took exception to the publication and filed a
criminal case for defamation against the respondents under Sections 500 and 501
of the Penal Code. The Magistrate issued processes to the respondents. The
respondents appeared before the Magistrate and made an application on 23.8.77 under
Section 91 of the Code of Criminal Procedure, 1973 (hereafter 'the Code')
requesting the court, before arriving at a conclusion whether it should proceed
further with the case or not, to call for (a) the original Enquiry Report
submitted by Sharma on 7.10.76; (b) the statement of witnesses recorded by
Sharma, (c) the original complaint; and (d) documents of the jail Department
including letters from the Government to the Department (Vide para 4 of
Annexure D to the Special Leave Petition). The Magistrate called for the
original Inquiry Report dated 7.10.76 submitted by Sharma to the Government,
and then posted the case for production of the said records by the Government
and recording the plea of the respondents.
The Government failed to produce the inquiry
report before the Magistrate whereupon the Magistrate issued a notice to the
Government to show cause as to why contempt proceedings should not be initiated
against them. The Magistrate, however, did not wait for the receipt of the
report and wanted to record the plea of respondents.
641 The respondents then filed an application
before the High Court of Madhya Pradesh under Section 397/401 read with Section
482 of the Code. It was alleged by the respondents that the Deputy Home
Secretary in his report came to the following conclusions :
(1) There was free mixing of male and female
prisoners in the Bhopal Central Jail ;
(2) Shri Sewakram Sobhani had opportunity and
also availed of the opportunity and mixed very freely with Smt. Uma Shukla; and
(3) Smt. Uma Shukla became pregnant through Shri Sewak Ram Sobhani.
4. It may be mentioned that the Government
later on produced the inquiry report before the High Court but claimed
privilege. The learned High Court presumably perused the report before passing
the impugned order. It may also be mentioned that although the Government
claimed privilege in respect of the report at that time, it appears, they
subsequently, after the impugned order of the High Court, waived the claim of
privilege, and released the inquiry report; for, in fact, a copy of the report
has been annexed and is available in the paper book of these appeals before us
as Annexure `A'.
5. The submission of the appellants is that
the impugned order of the High Court is beyond its revisional jurisdiction. The
submission is that the respondents prayed for quashing the order of the
Magistrate proceeding to record their plea before the inquiry report was
produced by the Government, but the High Court has wrongly quashed the
complaint itself. On the other hand the reply of the respondent is that
although there was no specific prayer in the petition, the petition was also
made for quashing the criminal case under Section 500/501 of the Penal Code
pending before the Magistrate. The respondents' submission is that they are not
guilty for the impugned publication in view of Exception 9 to Section 499 of
the Penal Code.
6. A perusal of the respondents' petition
before the High Court and its impugned judgment justifies the factual
submission of the respondents, namely, that their application before the High
642 Court (Copy Annexure C) was under Section 482 as well as Sections 397 and
401 of the Code, and that the respondents claimed and canvassed the protection
under the Ninth Exception of Section 499 of the Penal Code. For, para 6 of the
Judgment of the High Court reads :
"The applicants feeling aggrieved have
come to this Court for quashing the complaint, since they contend that the
publication would squarely fall within exception 9 of Section 499 of the Indian
Penal Code.
The applicants further contend that the
report of the Deputy Secretary (Home) is the document on the basis of which the
reporting was done and unless that is not produced and inspected, the defence
of exception 9 cannot be made out......
(Emphasis added)
7. The omission in the prayer portion of a
petition of a part of the claim, particularly in a criminal case, is not fatal.
The High Court in its revisional jurisdiction can always grant suitable relief
justified by law as well as facts and circumstances of a particular case.
That a part, Article 136 of the Constitution
of India gives wide powers to the Supreme Court to grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India.
The power is discretionary and therefore to be sparingly exercised.
This power is to be exercised to meet ends of
justice, to enhance justice and remove miscarriage of justice in a particular
case. It does not exercise such powers for academic reasons but for practical
purposes.
8. The High Court in the impugned order has
held that "it would be abuse of the process of the court if the trial is
allowed to proceed or alternatively to turn out to be vexatious
proceeding" and therefore quashed the complaint.
Such an order would be warranted under
Section 482 of the Code of Criminal Procedure if the merit of the case before
the High Court justified it. We have therefore to examine whether the respondents'
case falls within the ambit of the Ninth Exception to Section 499 of the Penal
Code as held by the High Court.
9. The appellant has not submitted before us
that the summary of the report published in the Blitz is not a correct summary
of the Inquiry Report. The copy of the Report, Annexure A, shows that a
complaint was received from one Shri Krishsan Gopal Maheshari, advocate,
alleging certain objectionable activities and misconduct on the part of the
appellant and Shrimati Uma Shukla. Annexure A also shows that the Inquiry
Officer Sharma, examined several witnesses including Shri Yogesh Shukla,
husband of Smt. Uma Shukla.
Para 4 of the report reads :- "The
following points are in dispute :
(a) whether as alleged by the complainant
there was free mixing of female members with male members detained under MISA;
(b) in case (a) is in the affirmative,
whether Shri Sewakram Sobhani had an opportunity to mix freely with Smt. Uma
Shukla;
(c) in case (a) and (b) are in the
affirmative when, how and through whom Smt. Uma Shukla a MISA detenu
conceived".
His findings are "(a) There was a free
mixing of male and female prisoners in the Bhopal Central Jail;
(b) Shri Sewakram Sobhani had opportunity and
also availed of opportunity and mixed very freely with Smt. Uma Shukla;
(c) Smt. Uma Shukla became pregnant through
Shri Sewakram Sobhani".
It, therefore, appears that the impugned
publication is a correct summary of the report and no submission has been made
to the contrary by the appellant before us.
10. The only question is whether the
publication falls within the Ninth Exception to Section 499 of the Penal Code,
as claimed by the respondents.
644 Before we do that, we must not be
oblivious of the fact that the Inquiry Report in question was a privileged
document; it is now an unprivileged open document as indicated above. The High
Court proceeded on the footing that if the document is not produced to be
utilized by the accused, the benefit would go to him.
11. Section 499 defines `defamation'. It is as
follows:- "S. 499. 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 of such person, is said, except
in the cases hereinafter defame that person".
The Ninth Exception reads:
"It is not defamation to make an
imputation on the character of another provided that the imputation is made in
good faith for the protection of the interests of the person making it, or of
any other person, or for the public good".
The Ninth Exception requires, inter alia,
that the imputation made must be in good faith for the public good.
12. `Good faith' has been defined in Section
52 of the Penal Code as:
"52. Nothing is said to be done or
believed in "good faith" which is done or believed without due care
and attention", The definition is expressed in negative terms. Normally
proof of an exception lies on the person who claims it; but the definition of
the expression "good faith" indicates that lack of good faith has
been made a part of the offence which the prosecution has to establish beyond
reasonable doubt. On the other hand the mere proof by the accused of the report
to be an authentic document is enough; it will create a doubt in the mind of
the Court as to the lack of "good faith" on the part of the accused.
13. The inquiry was made and the report
prepared by a highly responsible officer and submitted to the Government.
It was in pursuance of a complaint made by
one of the citizens pointing 645 out laxity in observance of jail rules and
highly objectionable practices of some of the prisoners and seeking improvement
in jail administration. The object was to see improved conditions, and
maintenance of certain standard of moral conduct by prisoners, in jail. If the
complaint and the consequent inquiry report be for public good, and the
respondents had reasons to believe its contents to be true, they will be
protected under the Ninth Exception. Even if the burden of proof of `good
faith' be on the accused `good faith' need not be proved beyond reasonable
doubt. Once this is done, whether the publication was for public good would be
a matter of inference.
14. The Dy. Secretary (Home) examined Shri
Bhandari, Editor of Prach who was a MISA detenu as witness No. 1, complainant
Maheshwari as witness No. 2, Smt. Ramkali Mishra, an advocate, and a member of
Jana Sangha, another MISA detenu, as witness No. 4, Dr. Hamid Quireshi, another
MISA detenu as witness No. 6, Shri Ramesh Chand Shrivastava an `independent'
witness as witness No. 7, and Shri Yogesh Shukla, husband of Smt. Uma Shukla as
witness No. 3. Most of the said witnesses, it appears, were the party
colleagues of the appellant and his co-MISA detenus. I must not be understood
to suggest the contents of the inquiry report are true; it is an exparte
inquiry report; it might be the result of political rivalry, as alleged by the
appellant, but it appears that political rivalry, if any, was between the
members of the appellant's party and not between the party in power and party
in opposition.
15. The comment of Mr. Sharma on the evidence
of witness No. 3 is as follows:
"Shri Yogesh Shukla witness No. 3 has
categorically stated that he had no connection with his wife and that she
became pregnant through Shri Sobhani, Advocate and got the child aborted. It is
worth consideration as to why the husband will come up with such an open
allegation against his own wife, unless there be no very strong reasons for
such a conviction.
Normally, no husband, even though his wife
may have conceived through somebody else will like to see his name being
scandalised. Shri Yogesh Shukla witness No. 3 is an advocate, quite an educated
person and we can safely presume that he knows the consequences of his
statement and also their legal and moral implications on his profession. Such
an open scandalous statement against 646 his own wife could not but be a result
of very strong abhoration or an outcome of utter desperation. It could also be
an expression of a naked truth." The entire report is exhaustive, reasoned
and based on evidence.
16. A perusal of the report will normally
lead one to believe the imputations. If that be so, it cannot be said that the
respondents published the report or its summary without due care and attention.
This establishes `good faith' as required by the Ninth Exception to Section 499
of the Penal Code. From what has been stated above, the publication obviously
appears to be for public good.
17. The appellant submitted that he wanted an
opportunity to clear himself of the imputations made against him by adducing
evidence before the Magistrate to establish the falsity of the imputations made
in the publication. We are not concerned with the truth or falsity of the
imputations published. Even if the findings in the report be proved to be
false, the respondents will be protected.
Sending back the case to the Magistrate to
record the respondents' plea after the perusal of the Inquiry Report will, in
my opinion, be an exercise in futility and abuse of the process of the criminal
court. The appellant may seek his remedy, if any, in the Civil Court. The
learned High Court, therefore, in my opinion committed no error in quashing the
complaint.
18. The appeal is dismissed.
ORDER In view of majority judgments, the
appeals are allowed.
P.B.R. Appeals allowed.
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