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Report No. 33

48. Decisions under section 499, Indian Penal Code.-

The decisions specifically under section 499, Indian Penal Code also make this amply clear.1-2

The Eighth Exception, to that section at least, requires that, having regard to the facts and circumstances within the informant's knowledge, he might, as an ordinarily reasonable and prudent man, have drawn the conclusion3. The good name and reputation of a person are not placed at the mercy of the credulity or indifference of a negligent reporter4.

1. See Arnold v. K.E., ILR 41 Cal 1023: AIR 1914 PC 116 (119).

2. The decisions are collected in Ratan Lal Law of Crimes, 1966, p. 1343.

3. Cf. Abdul Hakim v. Tej Chander, 1881 ILR 3 All 816 (818) (Straight J.).

4. See case-law reviewed in R. Sankar v. State, ILR 1959 Ker 1951: AIR 1959 Ker 100.

49. We cannot, in this connection, do better than quote the observations of Straight J. in Queen Empress v. Dhum Singh, (1884) ILR 6 ALL 220 (222) (per Straight J.,).

'Under Exception an accusation preferred in good faith to one person, who has authority over another in respect of the subject-matter of that accusation, is not defamation. It will be observed that two ingredients are essential to the establishing of this protection-(i) that the accusation must be made to a person in authority over the party accused; and (ii) that the accusation must be preferred in good faith-that is to say, with such reasonable care and attention on the part of the person making it in first satisfying himself of the truth and justice of his charge, as an ordinary man should be expected to exercise.

I am not at liberty to resort in the present case to the provisions of section 27 of Act 18 18621, which enacts that "in proving the existence of circumstances as a defence under the 2nd, 3rd, 5th, 6th, 7th, 9th or 10th exceptions to section 499 of the Penal Code, good faith shall be presumed, unless the contrary appears", as that Act is not in operation here2. On the contrary, I can only look to section 105 of the Evidence Act, which throws upon the appellant the burden of proving the existence of circumstances bringing the case within Exception 8, and directs the Court prima facie to presume "the absence of such circumstances".'.

1. The reference seems to be to the Act dealing with Criminal Procedure of the Supreme Court (Act 18 of 1862), repealed by Act 10 of 1882.

2. As to the law in Presidency-towns before 1882, see Shibo Prasad Pandah, 1879 ILR 4 Cal 124 (130) (Prinsep J.).

50. It is not possible for the court to engraft an exception derived from the common law of England or based upon public policy. In a Calcutta case1, Mookerjee, Acting Chief Justice, has discussed the case-law and history of section 499 and the various decisions thereunder, and emphatically stated that the court cannot engraft exceptions derived from the common law of England or based on public policy. In view of the plain language of the Eighth and Ninth. Exceptions, it was pointed out that absolute privilege could not be claimed under those Exceptions.

1. Satish Chandra v. Ram Doyal De, 1920 ILR 48 Cal 388: AIR 1921 Cal 1 (SB).

51. The proper point to be decided under the Eighth Exception to section 499, Indian Penal Code is not whether the allegations put forth by the accused (alleged to be defamatory) are, in substance, true, but whether he was informed and had good reason after due care and attention to believe that such allegations were true.

52. Difficulties do arise in practice in determining whether the accused had reasonable cause to believe1.

"Due care and attention implies a genuine effort to reach the truth and not the ready acceptance on ill-natured belief."2 An honest blunderer can never act in "good faith" within the meaning of the Indian Penal Code, if he is negligent 3-4

1. See for example, Romesh Roy v. King, AIR 1552 Cal 228 (230), para. 6 (complaint of prostitution made by the accused in a petition which he signed on the strength of signatures on the petition made by 40 other persons held protected, reversing the judgment of the lower court).

2. Ganapathia Pillai (in re:), AIR 1953 Mad 936 (937), para. 5 (Ramaswami J.).

3. Ganapathia Pillai (in re:), AIR 1953 Mad 936 (937), para. 5.

4. Superintendent and Remembrancer of Legal Affairs v. Perna Chandra, AIR 1924 Cal 611 (614) (Ninth Exception).

Section 44, Code of Criminal Procedure, 1898 Back

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