Debajyoti Barman v. The State

IN Judgements Database | 02/08/2018

 

Debajyoti Barman v. The State

The High Court of Calcutta

(1957)ILR 2Cal181

Media Involved: Weekly Periodical

Decided On:05.08.1955

S.C. Lahiri, J.

 

1. The Appellant Debajyoti Barman is the editor, printer and publisher of a Bengali Weekly named Jugabani which enjoys a fairly wide circulation. He has been convicted under Section 500, Indian Penal Code, by a Presidency Magistrate, Calcutta, for having published in his journal on March 7, 1953, a libelous article against the complainant Dr. NalinakshaSanyal and sentenced to pay a fine of Rs. 300 in default to suffer simple imprisonment for three months.

2. The facts leading up to the present prosecution are these: Messrs. A. Mukherjee and Co., Ltd., are a body of publishers who publish books for selection as text books for the School Final Examination conducted by the Board of Secondary Education. That Board is a statutory body constituted under West Bengal Act XXXVIII of 1950 and consists of an executive council and several committees, one of which is the syllabus committee. The constitution of the executive council is governed by Section 21 of the Act and its powers by Section 37. The constitution and functions of the syllabus committee are both regulated by Section 27. Section 27(3) of the Act provides that it shall be the duty of the syllabus committee to make recommendations to the executive council about the curriculum and syllabus of studies to be followed in recognised high schools and also to advise the executive council about the text books to be used by them. Under Section 37(1)(g), the executive council has the power to determine the syllabus of studies to be followed in high schools after considering the recommendations if any made by the syllabus committee under the provisions of Section 27(3) and within the time prescribed by regulations framed by the Board.

3. The controversy in the present case centres round the selection of English Rapid Reader for the School Final Examination of 1955. The complainant Dr. NalinakshaSanyal is a member of the executive council of the Board of Secondary Education. At a meeting of the executive council held on October 22, 1952, which was attended by the complainant, a unanimous resolution was passed on the recommendation of the syllabus committee, that English text books consisting of short stories should not be prescribed as Rapid Readers for the School Final Examination of 1955. On the basis of this resolution a Press-Note was published by the Board of Secondary Education in the Calcutta Gazette on November 6, 1952, to the following effect: Notification No. Syl./17, dated Calcutta, October 30, 1952:

Printed copies of available books by well-known writers and containing continuous reading matter may be submitted for consideration so as to reach the Secretary to the Board of Secondary Education, West Bengal, by November 21, 1952... (Vide Ex. E and the deposition of P.W. 6 HarendraNathMazumdar.)

4. In spite of this resolution and the Press-Note, Messrs. A. Mookerjee and Co. Ltd., submitted one of their publications named "Tales from Arabian Nights" which consisted of short stories only for selection as a Rapid Reader in English for the year 1955. This book, it should be noted, was included in the list of English Rapid Readers by the Board of Secondary Education for the year 1954, but as a result of the policy adopted by the Board by its resolution, dated October 22, 1952, it could not be prescribed for the year 1955 as it did not consist of one continuous reading matter but consisted of short stories. The book was first published in 1949 and the sixth impression was published in August, 1952. On the reverse side of the front page of all the copies which were intended for sale outside Calcutta, there is an endorsement to the effect that the book was approved by the Board of Secondary Education for the School Final Examination of 1954 and 1955 and by the University of Calcutta for the Matriculation Examination of 1953. In all the copies which were released by the publishers for sale in Calcutta, the endorsement was that the book was approved by the Board for the School Final Examination of 1954 and by the University of Calcutta for the Matriculation Examination of 1955. It is clear that the endorsement on the copies intended for sale outside Calcutta was false because the book had not yet been approved by the Board for the School Final Examination of 1955.

5. Whatever that may be, after Messrs. A. Mookerjee and Co. had submitted, their book for approval by the Board of Secondary Education, there was an attempt by some members of the executive council of the Board including the complainant to modify the resolution passed on October 22, 1952 and published in the Calcutta Gazette on November 6. 1952. What happened at this stage may perhaps be aptly described in the words of P.W. 6 HarendraNathMazumdar, who was a member of the executive council. He says "on January 6, 1953, it struck some members of the executive council to retain the same book for 1955 as approved for 1954 for the benefit of guardians. Syllabus committee did not agree to the resolution passed on January 6, 1953 and an informal meeting of the members of the two committees was arranged at the instance of the President... I do not remember what part Dr. Sanyal was played in the meeting on January 6, 1953. Dr. Sanyal was probably in favour of both continuous reading matter and short stories". The material portion of the resolution that was passed by the executive council at its meeting held on January 6, 1953, runs as follows:

Considered the recommendations made by the syllabus committee... regarding English Rapid Readers for the School Final Examination of 1955....

6. Resolved that the principle earlier accepted by the executive council that the Rapid Readers in English shall consist of only continuous reading matter be modified as under:

(a) That for the School Final Examination of 1955 Rapid Readers consisting of continuous reading matters as well as separate selections be approved.

(b) that the Rapid Readers in English as prescribed for the School Final Examination of 1954 should continue to be the Rapid Readers for the School Final Examination of 1955 along with the new books recommended for. the School Final Examination of 1955 by the syllabus committee at its meeting held on September 17, 1952, and that to this list be added such of the books already submitted for consideration as Rapid Readers as may be recommended by the syllabus committee after considering the report of the reviewers on them.

7. The effect of the first resolution is to lift the ban on the Tales from Arabian Nights published by A. Mookerjee and Co. Ltd., and to make it eligible for selection as a Rapid Reader in English for the School Final Examination of 1955. The effect of the second resolution is to include the Tales from Arabian Nights in the list of Rapid Readers approved for the year 1955, because this book was in the approved list of 1954.

8. The syllabus committee, however, refused to abide by the resolutions of the executive council and questioned its right to add to the list submitted by them for the consideration of the council. This state of things brought about a dead lock in the administration of the Board of Secondary Education which was sought to be resolved by the President of the Board of Secondary Education by arranging a joint meeting of the executive council and the syllabus committee to be held on March 27, 1953.

9. Public mind was considerably agitated by this state of things prevailing in the Board of Secondary Education and more particularly by the attempt made by some members of the Board including the complainant to modify the resolution passed on October 22, 1952 and published in the Calcutta Gazette on November 6, 1952, within a period of about two months. Bitter expressions of doubt and dissatisfaction came from the press and were voiced on the floor of the Legislative Assembly. It was openly alleged that this change in the policy of the Board was sought to be brought about at the instance of Messrs. A. Mookerjee and Co. Ltd., by illegal means, while this controversy was going on the Appellant published three articles in his journal Jugabani, the first one on February 2, 1953 (Ex. 2), the second one on March 7, 1953 (Ex. 3) and the third on March 14, 1953 (Ex. 4). Relevant portions of Exs. 2 and 4 which are in Bengali, have been translated in the following manner:

Ext. 2. H. N. Sen, P. M. 23-4-53.

School Books.

10. Nowadays (unscrupulous) trading has begun by passing off all that is rubbish in the names of text books, "Rapid Readers" etc., and those who are controlling education are doing this out of cupidity. They are not even observing the rules and regulations made by themselves. On October 30, 1952, the Secondary Education Board issued a notification to the effect that "English Rapid Readers" for School Final Examination in 1955 would have to be submitted by November 21 and that 5 copies of each book together with a fee of Rs. 10 would have to be deposited. The notice of October 30, was published in the Gazette of November 6. It was stated in unambiguous terms that short stories would not be accepted and that each book must contain one continuous story. Short stories were permitted under the old syllabus. The new rule was framed in supersession of that rule. But A. Mookerjee Company submitted their books which were on the old syllabus. Many members of the Board objected that it would not be proper to break within two weeks the rules framed by themselves. Dr. NalinakshaSanyal and Shri... asked that the rule be departed from in favour of their favourite company. The Director of Public Instruction also supported it.

Ext. 4. Tales from Arabian Nights.

11. What ShrimatiDatta Gupta was made to say was wrong. Thereafter ShrimatiDatta Gupta had to shut up her mouth. ShrimatiDutta Gupta is the Principal of the Women section of a big college. We did not expect her to behave like NalinakshaSanyal.

12. The Appellant was charged under Section 500, Indian Penal Code, on three counts for having published all the three articles but he has been acquitted in respect of Exs. 2 and 4.With regard to ex. 4, it has been held that it was mainly a comment on the conduct of Sm. Mira Dutta Gupta and the imputation against Dr. Sanyal was too vague to convey any meaning to the readers. With regard to Ex. 2, it has been held that it contains no reflection against any particular individual but against a class and that in any event, the Appellant is entitled to the protection of the third exception of Section 499 as the comment was made in the interest of public education. The learned Magistrate has, however, convicted the Appellant in respect of the Article-Ex. 3. As I am concerned in this appeal with this article, I give below a detailed account of the whole of it with a translation of the offending passages. The heading of the article is "Tales from Arabian Nights". It begins by narrating how ShriHaripadaChattopadhyaya had exposed in the Legislative Assembly, the trickery resorted to by A. Mookerjee and Co. Ltd., in getting their publication "Tales from Arabian Nights" selected for the School Final Examination of 1955 and refers to the hollowness of the explanations published by them in some of the newspapers. It recalls that Messrs. A. Mookerjee and Co. Ltd., had released their publication for sale with the endorsement that it had been approved by the Board of Secondary Education as an English Rapid Reader for 1955 long before any selection had been made by the Board. The explanation of the publishers that they had been misled by an announcement in the Jugantar on January 7, 1955, was evidently false, because in the title page that was pasted to the book after January 7, the year for which the book was said to have been approved by the Board was stated to be 1954, only and not 1955. Moreover, the Board of Secondary Education officially contradicted the report published in the Jugantar on January 7, and this contradiction was published in the Jugantar on January 11, 1953, and in the Statesmen on January 12. The writer expresses his wonder that Messrs. A. Mookerjee and Co. Ltd., saw only the wrong report appearing in the Jugantar on January 7 but not the contradictions which were published soon after. The writer further points out that on February 27, the Publishers' Association announced in several newspapers that no Rapid Reader had yet been selected for the year 1955. The comment then runs as follows:

A. Mookerjee is one of the men in authority in the Publishers' Association, but he knows nothing about this. Are people to believe that such an influential publisher who has more than one of his own men in the Secondary Education Board, has to conduct his affairs on a false, though suggestive, report published in the Jugantar ? He has observed that the matter is trifling. Of course it is. How can the book of which the price is Rs. 1-4 and which only one lakh of children will be compelled to buy be any thing but a trifling matter? The intimacy between the news editor of Jugantar and Messrs. A. Mookerjee and Co. Ltd., is wellknown. It should be ascertained how, through which source and with what object a suggestive, though false, report gets published through his hands. People's confidence in the news reports of Jugantar must be weakened by this. A. Mookerjee and Co. has kept a broker (dalal) named NalinakshyaSanyal in the Secondary Education Board. In the meeting held on January 6 he pleaded hard to get "Tales from Arabian Nights" approved as a text book but he was unsuccessful. He published that news on February 7. He should be told that the conduct which is suitable in Rajabazar does not enhance the reputation of an educational institution.

13. The Appellant has been acquitted in respect of the imputation contained in the last sentence but he has been convicted for having described the complainant as a "dalal".

14. The complainant's case is that the context in which he has been described as a "dalal" constitutes a direct personal attack upon his character and is calculated to harm his reputation. The ordinary connotation of the word "dalal" is a broker, who receives a remuneration for introducing a seller to a buyer. Under the West Bengal Secondary Education Act an ordinary member of the Board is not entitled to any remuneration and under Section 56 all members of the Board of the executive council and of every committee constituted under the Act are public servants within the meaning of Section 21 of the Indian Penal Code. According to the complainant the imputation in the impugned article is that the complainant received a remuneration for having attempted to get the "Tales from Arabian Nights" selected as a Rapid Reader in English, which constitutes a serious reflection on his character as a public servant and as the imputation was made without due care and attention, it constitutes defamation within the meaning of Section 499 of the Indian Penal Code.

15. A good deal of argument was advanced before me as to the true meaning of the word "dalal". On behalf of the Appellant Mr. Roy contended that the true meaning of that word is an agent, a broker or a middleman which according to Mr. Roy is a harmless expression. Almost all the witnesses examined by the complainant have admitted in their cross-examination that the word "dalal" includes agents and canvassers-vide the evidence of P.W. 6 HarendranathMajumdar, P.W. 10 Siva Prasad Chakrabarty, son-in-law of the complainant and P.W. 13 the complainant himself. The learned Standing Counsel appearing for the State on the other hand contended that in the context in which the word has been used, it can have only one meaning and that is "a paid "tout or hireling". It must be admitted that the word ''dalal" by itself is not defamatory and this is admitted by some of the prosecution witnesses, e.g., the last sentence in the cross-examination of P.W. 2 SabitriPrasannaChatterjee who is an old friend of the complainant, but if it is used in the sense that the complainant was inspired by motives of pecuniary gain in espousing the cause of A. Mookerjee and Co. Ltd., it would acquire a defamatory meaning, because in selecting a text-book for the use of students, a member of the Board of Secondary Education is expected to be actuated by no other consideration except the cause of education. Reading the article as a whole, however, it seems to me that it does not convey the impression that the complainant was employed by Messrs. A. Mookerjee and Co. Ltd., as one of their paid brokers or that the complainant was inspired by pecuniary considerations in attempting to get their publication selected for the School Final Examination of 1955. As I have already pointed out the major part of the offending article is an attempt to expose the false explanations and subterfuges resorted to by the publishers for inserting a false note in the title page of the book to the effect that it had been selected as a Rapid Reader in English for the School Final Examination of 1955, although, in point of fact, it had not been so selected. The complainant admits in his cross-examination that as a result of public agitation, following the insertion of the false note, the publishers had to withdraw all copies of the book from circulation. In these circumstances the description of the complainant as a "dalal" does not, in my opinion, necessarily connote that he was a paid agent or paid broker of the publisher, but that he was one of their active supporters. This conclusion, however, is not sufficient for the disposal of the appeal because the fourth explanation to Section 499 implies that if the imputation directly or indirectly lowers the moral or intellectual character of the complainant in the estimation of others it will constitute defamation.

16. The complainant has examined a number of witnesses to prove that as a result of the publication, he was lowered in their estimation. Of these witnesses, I am not inclined to attach any importance to the evidence of P.W. 2 SabitriPrasannaChatterjee, P.W. 6 HarendraNathMajumdar, P.W. 9 Biswanath Das, P.W. 10 Siva Prasad Chakravarty and P.W. 12 NirmalenduMajumdar. P.W. 2 SabitriPrasanna professes to be a poet and an author for the last fifty years and he is class friend of the complainant and is his particular friend. He is the Publicity Officer of the Hindustan Insurance Co., Ltd., where the complainant was also employed as an Agency Superintendent for sometime. He deposed for the complainant in another defamation case brought by the complainant against the editor of another newspaper named Kheyali for having described the complainant as a procurer of women. In spite of such close association with the complainant he pretends that he does not know whether the complainant was prosecuted by the Government of India along with one R.P. Saha for cheating, although the complainant himself admits that fact. It seems to me that SabitriPrasanna's love for the complainant prevailed over his love for truth and induced him to suppress from the Court, a fact which might have a tendency to lower the prestige of the complainant. P.W. 6 HarendranathMajumdar is also an old friend of the complainant and belonged to the complainant's party in the Board of Secondary Education. He says that he never reads Jugabani and that he read the issue of Jugabani (Ex. 3), for the first time. This statement leaves me wondering as to how or why he got hold of a copy of Ex. 3. He says that he met the complainant at the Indian Association Hall a day or two after he had persued Ex. 3. It is more probable that he read Ex. 3 after he had a discussion with the complainant at Indian Association Hall and not before. P.W. 9 Biswanath Das, who is a member and treasurer of the School of Physical Culture, states that on the occasion of the Silver Jubilee Celebration of the School of Physical Culture on March 15, 1953, as the President-designate did not arrive, he suggested that Dr. Sanyal should be requested to preside; but this proposal was turned down on the objection of some young men on the ground that some imputations had been published against Dr. Sanyal in the Jugabani. As a result of this objection Mrs. Sanyal was requested to preside instead of her husband, Dr. Sanyal. The witness states that the gentleman who objected to the presidentship of Dr. Sanyal was Mr. P.D. Dutt, who, however, has not been examined. With regard to the value of the evidence of this gentleman, it is to be noticed that he begins his examination-in-chief by saying that he is an engineer and contractor although in cross-examination the first thing he says is that he is not an engineer. He goes on to add that he undertook the contract of construction of Dr. Sanyal'shouse which he modifies by saying that the contract was not for construction but for repairs and that he received full payment of his bill. He further says that he knows the complainant for the last 20 or 25 years. In view of the statements made by the witness in his cross-examination, I am not inclined to attach any value to his evidence regarding the incident alleged to have taken place on March 15, 1953. If the complainant was at all anxious to prove that incident, he should have examined Mr. P.D. Dutt, who according to the witness objected to the proposal about the presidentship of Dr. Sanyal. The next witness examined by the complainant on this point is P.W. 10 Siva ProsadChakravarty, who is the complainant's son-in-law. He says that P.W. 9 Biswanath Das spoke to him about the imputation in Ex. 3 and then purports to prove the incident that took place on the occasion of the Silver Jubilee Celebration of the School of Physical Culture. Apart from the fact that he is an interested person, it is curious that this witness does not say that he actually attended the ceremony on March 15, 1953 and it seems to me that his deposition on this point is a reproduction of what he heard from P.W. 9. As I am not in a position to rely on the evidence of P.W. 9, I cannot accept the evidence of this witness, so far as this point is concerned. P.W. 12 NirmalenduMajumdar is an employee of the Sealdah Cold Storage and Transport Co., Ltd. of which the complainant happens to be the Managing Director.

17. He is, therefore, under the direct control of the complainant and for this reason, I am not inclined to attach any importance-to his statement to the effect that the complainant was lowered in public estimation as a result of the publication.

18. Although the evidence of P. Ws. 2, 6, 9, 10 and 12 does not inspire confidence, I cannot lightly brush aside the evidence of P. Ws. 7, 8 and 16, who appear to me to be disinterested and independent witnesses. P.W. 7 Ananda Kumar Mukhopadhyay is a pleader of the Income Tax Bar. He says that a junior member of the Bar showed him the comments in Ex. 3 and taunted him about the activities of the complainant whereupon he called on the complainant and asked him what he had done to evoke those comments. The only connection between this witness and the complainant is that both of them are office bearers of the Arabinda Physical Demonstration Committee, the witness being the Secretary and the complainant the President of that Committee. This is not sufficient in my opinion to discredit the evidence of this gentleman. P.W. 8 Tarini Prasad Bagchi, who is an Advocate of this Court, proves that the comments published in Ex. 3 produced a bad impression in his mind about Dr. Sanyal, whom he used to hold in high esteem. The witness admits that he was a student of the complainant in Berhampore College. The next witness P.W. 16 SaumendraNath Tagore, who is a political leader and wrote a letter, Ex. 16 to the complainant after reading the comments in Ex. 3. In this letter, the witness points out to the complainant how he had been castigated by the Appellant by being described as a "dalal" and the witness adds in his evidence that the comments must have lowered the complainant in the estimation of the public. There is nothing in the cross-examination of this witness to suggest that he was deposing falsely for the complainant. On a consideration of the entire evidence, therefore, my conclusion is that although the complainant has adduced a lot of evidence that is worthless, there is at least the evidence of three disinterested witnesses to prove that the moral and intellectual character of the complainant was lowered in their estimation. I accordingly hold that the complainant has been able to bring his case within explanation (4) to Section 499, Indian Penal Code.

19. Mr. Roy appearing in support of the appeal argued that where there is a number of good interpretations of a word, it was unreasonable that only the bad interpretation should be seized upon to give a defamatory sense to a document. In support of this proposition, he relied upon the dictum of Brett, L.J. in Henty's case (1880) 5 C.P.D. 514, 541, which was quoted with approval by Lord Shaw in the case of Stubbs Ltd. v. Russell (1913) A.C. 386, 398-399.

20. Reference was also made to the observations of Lord Halsbury, L.C. in Nevill v. Fine Art and General Insurance Co., Limited (1897) A.C. 68, 73, to the following effect:

The proposition has been established now upon authority which it is difficult to question... that it is not enough to say that by some person or another, the words might be understood in a defamatory sense.

21. In India, a criminal prosecution for defamation is to be governed by Section 499, the fourth explanation of which is in the following terms:

No imputation is said to harm a person's reputation unless that imputation, directly or indirectly, in the estimation of others lowers the moral or intellectual character of that person....

22. In my opinion this explanation does away with much of the tine distinctions under the English law and seems to imply that what constitutes defamation has to be determined not upon an interpretation that may be found for a word by a laborious research in a court of law but upon the meaning that might be conveyed by the word to a reasonable and fair-minded man. I am prepared to concede that a meaning that might be conveyed to a morbid or suspicious mind cannot be taken into account for this purpose. The word "others" in the explanation refers in my opinion to a reasonable and fair-minded man and not to a man with a morbid or suspicious mind. Applying this test to the facts of the present case the conclusion which follows is that though the word "dalal" may have an innocent meaning the context in which it was used in the present case it might indirectly lower the moral and intellectual character of the complainant in the estimation of others by imputing to him a personal or pecuniary motive in attempting to get the Tales from Arabian Nights selected as a Rapid Reader of English for the year 1955. I therefore cannot accept the first part of the Appellant's argument which is directed towards showing that the word was not defamatory.

23. The question which requires consideration next is whether the Appellant is protected by any of the exceptions to Section 499. Mr. Roy appearing for the Appellant has claimed the benefit of the first, second, third and ninth exceptions to Section 499 and has also argued that the freedom of a journalist is higher than the freedom of an ordinary citizen. In support of the latter proposition he has cited the case of Wason v. Walter (1868) 4 Q.B. 73, 94 where Cockburn, C.J. made the following observations at p. 94:

Comments on Government, on Ministers and Officers of State, on members of both houses of Parliament, on Judges and other public functionaries are now made every day, which half a century ago would have been the subject of actions or ex-officio informations and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt that the public are gainers by the change, and that, though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, and nation profits by public opinion being thus freely brought to bear on the discharge of public duties.

24. This pronouncement was made in dealing with the question of privilege with regard to a faithful report in a public newspaper of a debate in Parliament and however emphatic it may be in giving expression to the freedom of the press it is no authority for the proposition for which it has been cited namely that the freedom of the press is higher than the freedom of the citizen. Moreover, in Wasons case Cockburn, C.J. was dealing with a system of unwritten law the elasticity of which, according to the learned Chief Justice himself, enables those who administer it to adopt it to the varying conditions of the society and to the requirements and habits of the age in which we live.

25. In India the criminal law of defamation is codified in Section 499, Indian Penal Code, and a Judge has not the liberty to travel outside the statute to meet the "requirements and habits of the "age". Section 499, Indian Penal Code, it should be noted, makes no distinction between an ordinary citizen and the editor of a newspaper and therefore I am unable to hold that the editor of a newspaper enjoys greater freedom in the matter of giving expression to his opinion than an ordinary citizen. I am fortified in this conclusion by the observations of Lord Shaw in the case of Arnold v. King Emperor (1914) 111 L.T. 324, 325. At p. 325 the noble Lord makes the following observations:

Their Lordships regret to find that there appeared on the one side to this case the time-worn fallacy that some kind of privilege attaches to the profession of the press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length the subject in general may go so also may the journalist, but, apart from statute law, his privilege is no other and no higher.

26. I must now address myself to the question whether the Appellant comes under any of the four exceptions claimed for him. With regard to the first exception it is sufficient to state that although Mr. Roy claimed it before me no attempt was made in this behalf in the trial court and there are no materials before me upon which I can hold that the imputation made against the complainant "is true" within the meaning of that exception. The second, third and ninth exceptions may be broadly described as the plea of fair comment. Proof of good faith is an essential requirement of all the three. The second exception deals with the conduct of a public servant in the discharge of his public duties, the third exception with the conduct of "any person touching any public question" and the ninth exception deals with '"an imputation on the character of "another for the public good". Under section 52 of the Code nothing is said to be done or believed in good faith which is done or believed without due care and attention. I may mention here that under Section 56 of the West Bengal Secondary Education Act (Act XXXVIII of 1950) all members of the Board of the executive council and of every committee constituted under the Act are public servants as enumerated in Section 21 of the Indian Penal Code. Therefore the exception which is most appropriate in the circumstances of the present case is the second exception. There can be no doubt that the opinion which was expressed by the Appellant related to the conduct of a public servant in the discharge of his public functions and the only question that I have to answer is whether the Appellant expressed that opinion in good faith. In answering this question I shall have to consider whether the statement made by the Appellant was a correct inference warranted by the facts commented on and whether it was honestly believed by the Appellant to be true. On behalf of the complainant it has been strongly urged that there is nothing in the minutes of the proceeding of the executive council, dated January 6, 1953, to indicate that the complainant took any part far less a leading part on that date, and therefore the statement made by the Appellant to the effect that he pleaded hard on that date to get "Tales from Arabian Nights" selected as a text book is a reckless statement indicative of want of due care and attention. The learned Magistrate has also accepted this argument as one of the reason for convicting the Appellant. I am, however, unable to agree with the learned Magistrate on this point. It is no doubt true the name of the mover of the resolutions was not recorded in the proceeding of the executive council which took place on January 6, 1953, but from the facts and circumstances of the case it can be reasonably inferred that the complainant took a leading part in the proceeding of that date. I have already stated that as a result of the resolutions passed by the executive council on January 6, 1953, the affairs of the Board were brought to a deadlock which was resolved by a joint meeting of the executive council and the syllabus committee on March 27 1953. The complainant admits that he took the initiative and the leading part in the joint meeting held on that date. As a matter of fact the complainant could not but admit this fact, as his name is recorded in the proceeding of that date (vide Ex. G). The subject-matter of the joint meeting held on March 27 1953, is identical with item No. 8 of the meeting of the executive council held on January 6, 1953 and if the complainant took the leading part on March 27, 1953, it is reasonable to infer that he also took the leading part on January 6, 1953. The question whether the complainant took the leading part in the deliberations of the executive council on January 6, 1953, was put to P. W. 6 HarendraNathMajumdar and also to the complainant in cross-examination. The answer of P.W. 6 is as follows:

The notification Ex. E was later approved by the executive council. I was present in the meeting of the council on October 22, 1952, on which date we approved Ex.E after discussion unanimously. This was modified subsequently. I do not remember who took the initiative in the matter. The matter was discussed on January 6, 1953. President was in favour of the old resolution. Some others were in favour of including short stories, etc... I do not remember what part Dr. Sanyal played in the meeting on 6th January 6, 1953. Dr. Sanyal was probably in favour of both continuous reading matter as well as short stories, etc... The informal joint meeting was held on March 27, 1953,... Dr. Sanyal was the prime mover of the resolutions passed on that date.

27. It is curious that this witness remembers all the details of the meeting that was held as early as October 22, 1952 and also of the meeting that was held on March 27, 1953, but he does not remember who took the initiative at the meeting held on an intermediate date, viz., January 6, 1953, although he admits that the complainant was in favour of modifying the old resolution. It seems to me that this witness was determined to suppress from the Court the fact that it was the complainant who took the initiative on January 6, 1953. The answers given by the complainant on this point are these:

28. This publication was approved by the executive council (Ex. E), This principle was subsequently modified. I did not agree with that principle. I did not move for amendment of the final decision of the Board. I took no initiative for modification of the decision. I and some others were in favour of modification of the principle so far as English Rapid Reader was concerned... My principle was to include continuous reading matter as well as short stories as done by the Calcutta University earlier. There was a joint meeting of the executive council and the syllabus committee on March 27, 1953, to resolve the impasse... In the joint meeting held on March 27, 1953, I moved the resolution to resolve the impasse and the resolutions were drawn up on my initiative. I felt the necessity of retaining the books for 1954 for 1955 as the only solution.

29. The complainant, therefore, admits that he was in favour of retaining the books for 1954 for the year 1955 as well which would have the effect of including the Tales from Arabian Nights as one of the text books, for 1955 though he says that he did not move for the modification of the principle embodied in Ex. E on January 6, 1953. In cross-examination the complainant admits that as a result of "sharp exchange of words" between him and another female member of the Board, named Miss Manoroma Bose, the latter did not attend several meetings of the Board till the difference was composed through the intervention of the Director of Public Instruction. He further admits that he gave a shoe-beating to a gentleman named AnathKaviraj to protect his own honour as a result of which he was involved in a criminal case which was subsequently compounded. From all these admissions it appears that the complainant is a man of domineering and aggressive personality and it is difficult to believe that when he was in favour of modifying the principle embodied in Ex. E he should allow anybody else to take the lead in this matter at the meeting of the executive council held on January 6, 1953. I, therefore, hold that although the name of the mover of the resolutions is not mentioned in the minutes of the proceeding of the executive council held on January 6, 1953, it can be reasonably inferred from the circumstances of the case that it was the complainant himself who took the leading part on that date.

30. The next question is whether the opinion expressed by the Appellant in the impugned article was expressed in "good faith". The learned Standing Counsel appearing for the State has argued that in order to be a fair comment within the meaning of the exceptions 2, 3 and 9 to Section 499, Indian Penal Code, there must be an element of truth. I am, however, unable to accept this argument. Truth is an essential ingredient of only the first exception; so far as the 2nd, 3rd and 9th exceptions are concerned all that is necessary is that the opinion should be expressed in good faith. The definition of good faith as given in Section 52, Indian Penal Code, is a negative definition but nevertheless it implies that if an opinion is expressed with due care and attention it can be said to be expressed in good faith. Various authorities have been cited before me to show what constitutes good faith; but I consider it unnecessary to deal with them in detail. To my mind, if the impugned statement is a fairly correct inference warranted by the facts commented on and if it was honestly believed to be true and was not inspired by any malicious motive it can be said to have been made in good faith. In Thomas v. Bradbury Agnew and Co. Limited (1906) 2 K.B. 627, 641, Collins, M.R. quotes with approval the following observations of Blackburn, J. in Campbell v. Spottis Woods (1863) 3 B. & S. 769, 781.

31. Honest belief may be an ingredient to be taken into consideration by the Jury in determining whether the publication is a libel, that is, whether it exceeds the limits of a fair and proper comment.

32. In the language of the Indian Penal Code, this "honest belief" must be a belief inspired by the exercise of due care and attention. In the case of Muhammad Gul v. Haji FazleyKarim I.L.R.(1929) Cal. 1013, 1021, M.N. Mukerji, J. observed that:

The Court, in determining the question of good faith, should in my judgment have to take into account the intellectual capacity of the person, his predilections and the surrounding fact.

33. I respectfully agree with these views. The Appellant in the present case is a man of high education and he is also an educationist of repute. In his statement under Section 342, Code of Criminal Procedure, he states that in his opinion and in the opinion of some other educationists the real cause of the failure of Bengalee boys in All-India Competitive Examinations like I.A.S., I.F.S. and I.P.S. was defective education in schools and one of the defects in school education, according to him, was the bad quality of standard text books. The Appellant as a journalist was, therefore, keenly interested in seeing that the right type of text books was selected for the school boys. When, therefore, he found that the members of the executive council headed by the complainant were trying to go behind the resolution of the Board of Secondary Education as published in the Calcutta Gazette on November 6, 1952 (Ex. E), he considered it to be his duty to bring this matter to the notice of the public by publishing the offending article. He states that the only object of publishing the comments was to draw the attention of the educationists, the public and the Government to the state of affairs prevailing in the Board of Secondary Education and that he was not in any way actuated by malice against the complainant. The prosecution also does not allege that in publishing the comments, the Appellant was influenced by any malicious motive.

34. The only question, therefore, is whether the description of the complainant as a "dalal" of A. Mukherjee and Co., Ltd., was a reasonable inference from the facts commented upon and whether the Appellant honestly believed him to be so. 1 have already stated that at a meeting of the executive council held on October 22, 1952, a unanimous resolution was passed on the recommendation of the syllabus committee to the effect that English text books consisting of short stories should not be selected as a Rapid Reader for the year 1955. The complainant who was a party to this resolution did not raise a voice of protest at that time and on the basis of this resolution a press-note was published in the Calcutta Gazette on November 6, 1952, to the effect that English text books containing continuous reading matter only should be submitted for approval. If this resolution and the press-note were allowed to stand the Tales from Arabian Nights published by A.R. Mukerjee and Co. Ltd., which consists of short stories, would be automatically ruled out. In the face of the resolution and the press-note, however, the publishers had the hardihood to submit their publication for approval and then followed an attempt on the part of the complainant and his followers to modify the original resolution by including text books consisting of short stories as well. The second resolution passed on January 6, 1953, went a step further. It provided that Rapid Readers in English prescribed for 1954 should continue to be Rapid Readers for 1955. This was a direct attempt to include the Tales from Arabian Nights for the year 1955, because it was prescribed for 1954. The reason for this sudden change of front on the part of the complainant and his followers within such a short period is not very clear unless it is assumed that they were influenced by the "publishers to make an attempt to have their publication included in the list of approved text books for the year 1955. The Appellant In his statement under Section 342 says that in view of the large number of pupils studying in schools the approval of a text book by the syllabus committee would bring large profits to the publishers and the financial stake involved sometimes results in undue influence being brought to bear on the members of the committee. The complainant in his evidence does not give any reason why he attempted to modify the decision taken by the Board on October 23, 1952, He merely states that his principle was to include continuous reading matter as well as short stories as done by the Calcutta University earlier. If that be so, one should have expected the complainant to raise that point on October 22, 1952. Speaking for myself, I have not been able to understand why after being party to the resolution adopted on October 22, 1952, the complainant should find it necessary to attempt to modify it on January 6, 1953 and the learned Standing Counsel also could not give any satisfactory explanation beyond stating that one cannot always act consistently. Consistency may, no doubt, under certain circumstances, mean persistency in error but in order to justify a departure on a public question, it is reasonable to expect some proof of error in the principle previously adopted. Such proof is entirely wanting in the present case and in the absence of any such proof, I am forced to the conclusion that the complainant was influenced by the publishers to make an attempt to modify the resolution adopted by the Board on October 22, 1953. The evidence of P.W. 6 HarendranathMajumdar, who is a follower of the complainant, also does not improve the situation. He merely states that on January 6, 1953, it struck some members of the executive council to retain the same books prescribed for 1954 for the benefit of guardians.

35. In the recommendations of the joint meeting held on March 27, 1953, it is no doubt stated that the syllabus committee should give due consideration to possible hardship to pupils and their guardians through too frequent changes in, and almost complete substitution of, new text books; but the question that arises is whether this anxiety for the hardship to pupils and their guardians is genuine. If it had been genuine, I should have expected the complainant and his followers to raise this point at the meeting of the executive council held on October 22, 1952, but as that was not done, I am inclined to hold that under the garb of "possible hardship "to pupils and their guardians", the complainant was really trying to get the Tales from Arabian Nights included as a Rapid Reader for 1955.

The conclusion that the complainant was in all probability influenced by the publishers A. Mukerjee and Co., Ltd., in attempting to modify the original resolution of the Board receives corroboration from an unexpected source. On February 28, 1953. the Appellant published an article in his journal under the heading "Budget or a thorny bush" written by ShriHaripadaChattopadhyaya in which the writer exposed the dishonest activities of the publishers A. Mukerjee and Co. Ltd., by printing facsimile copies of a letter written by the Personal Assistant to the President, Board of Secondary Education, and also of the endorsements on the title page of the Tales from Arabian Nights. In the letter written on behalf of the President which was, dated February 16, 1953, it was stated that no Rapid Reader for 1955 had yet been announced and the statement that the Tales from Arabian Nights had been approved as a Rapid Reader for the School Final Examination of 1955 was thoroughly unwarranted. Side by side was printed the endorsement on the title page of the book (moffusil edition) to the following effect:

Approved as a Rapid Reader by the Board of Secondary Education, West Bengal, for the School Final Examination of 1954 and 1955 and by the Calcutta University for the Matriculation Examination of 1953.

36. In the Calcutta Edition, however, the year 1955 was omitted. Yet in both the editions the date of publication was given as August, 1952. The copy of the Jugabani in which this article was published was produced at the trial and marked Ex. J. The complainant in his cross-examination admits that when the dishonest activities of A. Mukerjee and Co. Ltd., were brought to light, they had to withdraw their publication and to send a letter of apology to the President; but when Ex. J was shown to him, he made the following amazing statement:

The publication of the article with facsimile in Ex. J would not be made by any honest publisher unless with a motive of personal animus and malice against a particular firm.

37. I fail to see what induced the complainant to make this statement unless I hold that the complainant was pleading for the publishers even in the present case. The article in question contains no reflection or imputation against the complainant and it contains a statement of facts which have been proved to be true, so far as the publishers are concerned. If in spite of this, the complainant goes out of his way and characterises the publisher as dishonest for having published this article the only conclusion that follows is that he completely identified himself with the publishers even during the present trial. In the course of the argument, I pointedly drew the attention of the Standing Counsel to this statement of the complainant, but he failed to give any satisfactory explanation. For the reasons given above, I have come to the conclusion that the statement made by the Appellant in the impugned article was a reasonable inference warranted by the facts commented upon and as the facts from which the inference was drawn were correctly stated, I hold that the Appellant is entitled to the protection of the second exception to Section 499.

38. The learned Standing Counsel also argued that the statement in the offending article to the effect that the publishers A. Mukerji and Co., has kept a "dalal" named NalinakshyaSanyal on the Board of Secondary Education is an allegation of fact and is not a comment and accordingly the Appellant cannot succeed unless he proves affirmatively that the complainant was in fact a "dalal". Reading the impugned article as a whole, however, I cannot hold that the passage contains a statement of fact but it is an inference from facts and from the circumstances which I have already discussed, I hold that it is a reasonable inference.

39. Both the complainant and his follower, P.W, 6 HarendranathMajumdar, admit in their cross-examination that one of the reasons which induced the State Government to supersede the Board of Secondary Education was prescribing text books on considerations other than their suitability. From the materials on the record to which I have already referred, it will appear that the complainant and his followers contributed not a little towards bringing about this result. It was the complainant who a party to the resolution, dated October 22, 1952; it was he, who attempted to modify it on January 6, 1953, and it was he who brought about the "impasse" in the administration of the Board of Secondary Education by creating a deadlock between the executive council and the syllabus committee and forced the President to convene a joint meeting of the executive council and syllabus committee on March 27, 1953. Such a joint meeting, it should be noted, is not contemplated by the West Bengal Secondary Education Act of 1950 and cannot be said to have been legally convened. That is why it has been described as an "informal" meeting and its resolution as "recommendation''.

40. It is of paramount national importance that in selecting text books for schools no other consideration should be taken into account except the mental capacity and moral and intellectual training of our boys and if there be the slightest suspicion that any member has been influenced by other considerations it is absolutely essential that his activities should be throughly exposed. Public interest will suffer immeasurably if the activities of such a member be allowed to go unchallenged.

41. Judged by this test, I must hold that the Appellant rendered valuable public service in drawing the attention of the public to the complainant's activities in the Board of Secondary Education in a forcible manner and that he acted in good faith in giving expression to his opinion regarding the conduct of the complainant in the discharge of his public functions.

42. In the result this appeal should be allowed and the order of conviction and sentence passed on the Appellant set aside. The fine, if paid, should be refunded.

 

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